EUROPEAN COMMISSION

DG Competition

Only the English text is available and authentic.

REGULATION (EC) No 139/2004

MERGER PROCEDURE

Decision on the implementation of the commitments - Modification of the Commitments Date: 31/01/2022

EUROPEAN COMMISSION

Brussels, 31.1.2022 C(2022) 638 final

PUBLIC VERSION

In the published version of this decision, some information has been omitted pursuant to Article 17(2) of Council Regulation (EC) No 139/2004 concerning non-disclosure of business secrets and other confidential information. The omissions are shown thus […]. Where possible the information omitted has been replaced by ranges of figures or a general description.

Daimler AG Mercedesstrasse 137 70327 Stuttgart Germany

Bayerische Motoren Werke AG Petuelring 130 80809 Munich Germany

Dear Sir/Madam,

Subject: Case M.8744 – DAIMLER/BMW/CAR SHARING JV Decision to extend the duration of the commitments annexed to the Commission decision of 7 November 2018 in Case M.8744 pursuant to clause 39 of the commitments

1. FACTS AND PROCEDURE

(1) By decision of 7 November 2018 (the “Decision”) adopted in application of Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation (EEC) No 1139/2004 of 20 January 2004 on the control of concentrations between undertakings (the “Merger Regulation”) and Article 57 of the Agreement on the European

1Official Journal L 24, 29.01.2004, p. 1-22.

Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel, BELGIË

Tel: +32 229-91111. Fax: +32 229-64301. E-mail: COMP-MERGER-REGISTRY@ec.europa.eu.

Economic Area (the “EEA Agreement”), the Commission declared the operation by which Bayerische Motoren Werke Aktiengesellschaft (“BMW”) and Daimler AG (“Daimler” and together with BMW, the “Parties”) intended to establish six joint ventures, bringing together the Parties' mobility services in five business fields (the “Transaction”), compatible with the internal market and with the EEA Agreement, subject to full compliance with the commitments submitted by the notifying parties

(2) Pursuant to the Commitments, BMW and Daimler committed to grant access to (i) their car sharing app’s programming interface (“API”) “Share Now” to third party aggregator platforms(the “API Commitment”) and (ii) their “moovel” aggregator platform to interested car sharing providers (the “Aggregator Platform Commitment”). Under the API Commitment and the Aggregator Platform Commitment access is granted in the cities of Berlin, Cologne, Düsseldorf, Hamburg, Munich and Vienna for a duration of three years.

(3) Post-Transaction, Daimler’s aggregator app “moovel” has been renamed “Reach Now”, while BMW’s free-floating car sharing app “Drive Now” and Daimler’s “car2go” were merged into a combined free-floating car sharing app named “Share Now”. The merged entity also operates another app which was originally only conceived to let users book taxis, named “Free Now”. However, in September 2021 the Parties’ app “Share Now” has to a large extent been migrated to the Free Now app. On 5 November 2021, the Parties informed the Commission that they intended to discontinue the Reach Now app and to migrate its functionalities to the Free Now app.

(4) Under clauses 3 and 11 of the Commitments, the Parties committed to provide access under the API Commitment and the Aggregator Platform Commitment for a period of three years after closing of the Transaction. Because closing of the Transaction occurred on 31 January 2019, the Commitments are set to expire on 31 January 2022.

(5) According to Clause 39 of the Commitments, the Commission may on its own initiative, prior to the expiry of the Commitments, extend the time period foreseen in clauses 3 and 11 of the Commitments for two years and for individual cities only in appropriate cases. Clause 39 of the Commitments specifies that an appropriate case for extension only exists, if within three years from Closing of the Transaction no meaningful market entry has taken place in the respective cities. Pursuant to the Commitments, meaningful market entry has occurred when one or more car sharing provider(s) enter(s) one of the relevant cities covered by the Commitments and reach(es) more than 60% of the average fleet size of the merged entity’s fleet of the preceding year.

2See Commission Decision C(2018) 7527 of 07 November 2018.

3Capitalised terms in this decision shall have the meaning as set out in the Commitments unless indicated otherwise.

4Aggregator platforms are smartphone apps that establish a contact between consumers and mobility services like car sharing, ride hailing, public transit, parking and charging and inco rporates at least two different means of transport.

2. OBSERVATIONS BY THE PARTIES

(6) On 24 June 2021, the Parties submitted to the Commission their observations on a potential extension of the Commitments. In particular, the Parties indicated that meaningful market entry within the meaning of the Commitments has occurred in Berlin, Hamburg and Munich and that, therefore, an extension of the Commitments is not appropriate for these cities. The Parties also submitted that no meaningful market entry has occurred in Cologne, Düsseldorf and Vienna, but that there are several free-floating car sharing providers that have expressed their intention to enter new markets or which may easily enter the relevant cities without benefitting of the API Commitment and the Aggregator Platform Commitment.

(7) The figure below contains the data submitted by the Parties with respect to the average size of their own car sharing fleet and the combined size of other free-floating car sharing providers’ fleets in each of the overlap cities. As mentioned in paragraph (5) above, pursuant to clause 39 of the Commitments, meaningful market entry is deemed to have occurred when one or more car sharing provider(s) enters a city and reach(es) more than 60% of the average fleet size of the merged entity’s fleet of the preceding year.

Figure 1 – Fleet sizes of car sharing providers (2021)

City Size of Parties’ Combined fleet 60% of Parties’ Meaningful fleet size of other fleet Market Entry car sharing providers

Berlin […] 4 150 [>60%] YES

Hamburg […] 1 650 [>60%] YES

Munich […] 1 100 [>60%] YES

Cologne and […] 125 [<60%] NO Düsseldorf (combined)

Vienna […] 75 [<60%] NO

Source: Data provided by the Parties on 24 June 2021.

3. ASSESSMENT

(8) The Commission’s investigation in view of its assessment on the potential extension of the API Commitment and the Aggregator Platform Commitment has confirmed

5The average number of cars in the Parties’ fleet in the preceding year.

6The Parties operate Cologne and Düsseldorf with one single fleet, and are therefore not able to provide separate figures for each city.

(9) Moreover, the Commission’s investigation has shown that several third party aggregator platforms already obtained API access to the Parties’ car sharing app under the API Commitment and a majority of respondents expressed an interest in continuing to do so in each of Cologne, Düsseldorf and Vienna.

(10) At the date of this Decision, no free-floating car sharing service provider has requested access to the Parties’ aggregator platform under the Aggregator Platform Commitment. However, a number of respondents to the Commission’s market investigation indicated that they might be interested in making use of the Aggregator Platform Commitment in the future in order to display their services on the Parties’ Free Now application.

(11) The Commission’s market investigation supports the conclusion that third parties are either currently making use of the Commitments or expressed an interest in making use thereof and that it is appropriate to extend the term of the Commitments in Cologne, Düsseldorf and Vienna in order to address the remaining competition issues raised by the Transaction considering the low level of entry in those three cities.

(12) On 17 January 2022, the Monitoring Trustee submitted to the Commission its observations on a potential extension of the Commitments. In particular, the Monitoring Trustee submitted that an extension of the Commitments (including both the API Commitment and Aggregator Platform Commitment) in the three cities where no meaningful market entry has occurred is appropriate and in line with clause 39 of the Commitments.

(13) Based on the above, and taking into account the favourable opinion of the Monitoring Trustee, the Commission has decided to extend, on its own initiative, the Commitments in each of the cities of Cologne, Düsseldorf and Vienna pursuant to clause 39 of the Commitments for a period of 2 years from 31 January 2022 until 31 January 2024.

For the Commission

(Signed) Olivier GUERSENT Director-General

7See replies to questions 1 and 2 lit. b) of the Commission’s request for information of 21 December 2021 addressed to other free-floating car sharing providers.

8See replies to questions 1 and 2 of the Commission’s request for information of 22 December 2022 addressed to third party aggregator platforms.

9See replies to question 4 lit. b) of the Commission’s request for information of 21 December 2021 addressed to other free-floating car sharing providers.

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