2002/758/EC: Case COMP/36.264 — Mercedes-Benz: Commission decision of 10 October 2001 relating to a proceeding under Article 81 of the EC Treaty (Text with EEA relevance.) (notified under document number C (2001) 3028)

• Coming into Force: 25 September 2002
• End of Effective Date: 31 December 9999
• Celex Number: 32002D0758(01)
• ELI: http://data.europa.eu/eli/dec/2002/758(1)/oj
• Published date: 25 September 2002
• Date: 10 October 2001
• Official Gazette Publication: Gazzetta ufficiale delle Comunità europee, L 257, 25 settembre 2002,Diario Oficial de las Comunidades Europeas, L 257, 25 de septiembre de 2002,Journal officiel des Communautés européennes, L 257, 25 septembre 2002

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2002/758/EC: Case COMP/36.264 — Mercedes-Benz: Commission decision of 10 October 2001 relating to a proceeding under Article 81 of the EC Treaty (Text with EEA relevance.) (notified under document number C (2001) 3028)

Official Journal L 257 , 25/09/2002 P. 0001 - 0047

Commission Decision

of 10 October 2001

relating to a proceeding under Article 81 of the EC Treaty

(Case COMP/36.264 - Mercedes-Benz)

(notified under document number C (2001) 3028)

(Only the German text is authentic)

(Text with EEA relevance)

(2002/758/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation No 17 of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty(1), as last amended by Regulation (EC) No 1216/1999 of 10 June 1999(2), and in particular Articles 3, 15(2) and 16(1) thereof,

Having regard to the Commission decision of 30 March 1999 to initiate proceedings in this case,

Having given the parties concerned the opportunity, pursuant to Article 19(1) of Regulation No 17 and Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty(3), to make known their views on the objections raised by the Commission,

After consulting the Advisory Committee on Restrictive Practices and Dominant Positions,

Having regard to the final report of the Hearing Officer,

Whereas:

1. FACTS

1.1. PROCEDURE

(1) Since the beginning of 1995 the Commission had been receiving letters from consumers complaining about restrictions on the export of new motor vehicles of the Mercedes-Benz make by affiliates of Daimler-Benz AG in various Member States. The Commission thus had indications that firms belonging to the Daimler-Benz group were operating a foreclosure of the market in contravention of Article 81(1) of the EC Treaty.

(2) On 4 December 1996 the Commission issued a decision ordering investigations pursuant to Article 14 of Regulation No 17. These investigations were carried out on 11 and 12 December 1996 at the premises of the following companies:

- Germany: Daimler-Benz AG, Stuttgart; Mercedes-Benz AG, Stuttgart,

- Belgium: Mercedes-Benz Belgium SA/NV; Van Steen SA/NV, Mechelen,

- Netherlands: Mercedes-Benz Nederland NV, Utrecht; Autocentrum Pordon BV, Utrecht; Van Kooy BV, Hilversum,

- Spain: Mercedes-Benz España SA, Madrid; Itarsa, Madrid; Itra SL, Madrid.

(3) On 21 October 1998 the Commission addressed a request for information under Article 11 of Regulation No 17 to Daimler-Benz AG. This was replied to on 10 November 1998. On 15 June 2001 the Commission addressed a further request for information to DaimlerChrysler AG, which was replied to on 9 July 2001.

(4) On 31 March 1999 the Commission sent a statement of objections to DaimlerChrysler AG.

(5) DaimlerChrysler AG commented on the Commission's objections in writing by letter dated 14 June 1999 and orally at a hearing on 29 June 1999. Moreover, on 7 December 1999 it presented a report by Professor Ulmer which assessed the marketing of motor vehicles via dealers in Germany pursuant to Article 81(1). On 4 September 2000 DaimlerChrysler sent a further letter on the subject of the assessment of evidence in which it referred to the assessment of evidence by the Court of First Instance of the European Communities in its judgment in Case T-62/98 Volkswagen v Commission [2000] ECR II-2707.

(6) This Decision is based on documents found during the investigations, answers to requests for information and the comments presented by DaimlerChrysler AG.

1.2. THE FIRMS IN QUESTION AND THEIR MARKETING NETWORK

1.2.1. DAIMLERCHRYSLER AG

(7) Daimler-Benz AG merged with DaimlerChrysler AG on 21 December 1998 on the basis of the "Business combination agreement" of 7 May 1998. DaimlerChrysler AG thus became the legal successor to Daimler-Benz AG. Under section 20(1) of the Conversion Act (Umwandlungsgesetz (UmwG))(4), all of the latter's rights, assets, liabilities and obligations were transferred to DaimlerChrysler AG(5). In 2000 DaimlerChrysler's worldwide turnover came to EUR 162,384 billion, and its Community-wide turnover to EUR 50,348 billion.

(8) In 2000, with world sales of 1052742 passenger cars, the Mercedes-Benz make accounted for a turnover of EUR 43,133 billion. In 2000, 666198 Mercedes-Benz passenger cars were sold in the Community, worth EUR 25,050 billion(6).

1.2.2. DAIMLER-BENZ AG AND MERCEDES-BENZ AG

(9) Until 21 December 1998 Daimler-Benz AG was the umbrella company of the Daimler-Benz group. Together with its subsidiaries, it was active worldwide in manufacturing and marketing motor vehicles, motor-vehicle electronics, railway vehicles, diesel engines, aircraft, spacecraft and defence systems, and in the financial-services, insurance-brokerage, information-technology, telecommunications-technology, commercial and property-management services sectors.

(10) In 1997 the consolidated worldwide group turnover of Daimler-Benz AG was ECU 64963 million, while its turnover in the Community was ECU 37995 million. In the same year, the group's worldwide turnover in respect of passenger cars was ECU 21955 million.

(11) Until 1989, passenger cars and commercial vehicles of the Mercedes-Benz make were manufactured and marketed by Daimler-Benz AG and its subsidiaries. From 1989 until 26 May 1997, passenger cars were manufactured by Mercedes-Benz AG, a subsidiary of Daimler-Benz AG. In Germany, they were marketed directly by Mercedes-Benz AG, in Belgium and in Spain via the subsidiaries of Daimler-Benz AG, Mercedes-Benz Belgium SA/NV and Mercedes-Benz España SA.

(12) Mercedes-Benz AG was merged into Daimler-Benz AG on 25 May 1997. Since that date, Mercedes-Benz has been the motor-vehicle division within Daimler-Benz AG, now DaimlerChrysler AG. For the sake of simplicity, the expression "Mercedes-Benz" is used below where appropriate, irrespective of whether the reference is to Daimler-Benz AG (up to 1989), Mercedes-Benz AG (up to 1997), Daimler-Benz AG (1997/98) or DaimlerChrysler AG (from 1998).

(13) In 2000 the turnover achieved with Mercedes-Benz passenger cars, including sales to company employees, in Germany came to EUR 15,494 billion(7).

(14) The car trade in Germany may be portrayed in figures as follows(8):

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(15) Mercedes-Benz passenger cars are marketed(9) in Germany essentially via 43 (1996), 41 (1998) or 35 (2000) branches belonging to the group, 237 (1996), 208 (1998) or 110 (2000) agents (also known as contracting partners) with the status under German law of commercial agents appointed to negotiate business transactions (section 84(1), first sentence, first alternative, of the Commercial Code), and via three commission agents ("principal agents")(10), one of which is a firm within the Mercedes-Benz group(11). Although the principal agents act in their own name, they operate on the same footing(12) as the other agents in their internal relationship with Mercedes-Benz. Since the contracts with principal agents and agents are broadly identical in content, the following information concerning agents also applies, unless otherwise stated, to the principal agents. There are also some 500 contracted workshops in Germany. These can act as commercial agents as a sideline under section 92b of the Commercial Code, negotiating sales of new vehicles on behalf of the agent or Mercedes-Benz branch responsible for their area.

Of all Mercedes-Benz passenger cars sold in Germany, on average during the period 1996-2000 around [...] % were sold through Mercedes-Benz branches and around [...] % through contracting partners acting as commercial agents (hereinafter referred to as "agents"). Even if the criterion is the level of turnover achieved with new vehicles sold through these marketing companies, the same percentage figures are obtained(13). The sales/turnover of the German contracted workshops that negotiate sales contracts for new vehicles on behalf either of a branch or of an agent are included in these percentages and amount to some [...] % in all.

(16) The German (principal) agents of Mercedes-Benz bear a number of risks under the agency agreement(14) which are intrinsically linked to their work in negotiating the sale of new vehicles. These are described in detail in recital 153 et seq.

1.2.3. MERCEDES-BENZ BELGIUM SA/NV

(17) Mercedes-Benz Belgium SA/NV (hereinafter referred to as "MBBel") was a subsidiary of Daimler-Benz Holding Belgium SA, which was in turn controlled directly or indirectly by Daimler-Benz AG. MBBel had since an unknown date been a wholly owned subsidiary of Daimler-Benz AG. Since 21 December 1998 it has been a wholly owned subsidiary of DaimlerChrysler AG.

(18)

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(19) The passenger-car sales network in Belgium consists of the importer, MBBel, which during the period at issue here itself sold new vehicles via at least two branches(15), and of approximately 45 dealers(16). There are also approximately 44 agencies/workshops in Belgium which also negotiate new-vehicle sales contracts.

1.2.4. MERCEDES-BENZ ESPAÑA SA

(20) Mercedes-Benz España SA (hereinafter referred to as "MBE") is a wholly owned subsidiary of the national holding company Daimler-Benz España SA, 99,88 % of which was owned by Daimler-Benz AG. Since 21 December 1998 this holding company has been a wholly owned subsidiary of DaimlerChrysler AG. MBE operates body and assembly plants for transporters and V-class (large-capacity) passenger cars, manufactures engines, transmissions and axle components for transporters, and sells Mercedes-Benz vehicles and Daimler Benz products.

(21) Passenger cars are sold in Spain via three branches of MBE and approximately 70 dealers. There are also contracted workshops in Spain(17), although these do not sell vehicles but only negotiate sales contracts.

(22)

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