On 8 October 2012, the French Competition Authority
("FCA") published the results of its sector inquiry
concerning motor vehicle maintenance and repair. In its opinion,
the FCA has made several recommendations intended to address the
five barriers to competition that it previously identified in its
preliminary report and in respect of which it launched a public
consultation (see VBB on Competition Law, Volume 2012, No.4,
First, the FCA pointed to the high level of protection given to
visible spare parts (wings, bumpers, windscreens, mirrors, etc.) by
industrial design rights whereby only the vehicle manufacturer has
the right to distribute these parts to repairers. This results in
vehicle manufacturers holding a legal monopoly over 70% of visible
spare parts, and a duopoly with automotive equipment manufacturers
over the remaining 30%.
In its report, the FCA has suggested amending the law by
introducing a so-called "repair clause" which would
remove the protection in respect of spare parts destined for
repairs. Such a clause has already been introduced by 11 other EU
Member States, including Germany and the UK. In order to take into
account of the current economic difficulties faced by the car
industry, the FCA proposes to remove this legal restriction
gradually and in a controlled manner per family of parts.
The second recommendation relates to the limited availability of
spare parts to independent repairers compared to authorised network
repairers and, in particular, the difficulty encountered by
original equipment manufacturers ("OEMs") to market spare
parts that they manufacture on their own behalf. In its report, the
FCA promises to scrutinise, on a case-by-case basis, any
contractual restrictions between OEMs and motor vehicle
manufacturers whereby OEMs are discouraged from selling spare parts
to independent repairers or, where they do make such sales, causing
them to sell at higher prices. The FCA also recommends that the law
be changed so that OEMs producing parts on behalf of a vehicle
manufacturer may remove the latter's logo from the parts
without breaching IP law, thereby encouraging the sale of spare
parts directly to the aftermarket by the OEM.
The third barrier to competition identified by the FCA is the
limited access for independent repairers to technical information
necessary for repair and maintenance under conditions similar to
those enjoyed by authorised network repairers. In the view of the
FCA, competition law is not designed to deal with sporadic denials
of access but it will apply in cases where there are significant
obstacles which may result in competition barriers on the
downstream market. With that in mind, the FCA is of the view that
efficient control mechanisms and also credible deterrents should be
set up in respect of access to technical information. In addition,
the FCA is in favour of an extension of the current standardisation
process in this respect.
The fourth recommendation relates to the inclusion of clauses in
the warranty of a motor vehicle manufacturer that discourage
consumers from turning to independent repairers because they
believe they will lose the benefit of their warranty if they do so.
The FCA has stated that the provisions of a motor vehicle's
warranty should be as clear as possible with regard to the
possibility for the consumer to use the services of an independent
repairer without losing the benefit of the warranty. Otherwise,
such clauses may fall to be assessed under competition law on a
The final barrier to competition identified by the FCA concerns
the widespread practice of issuing recommended retail prices for
spare parts. A particular concern of the FCA is that this practice
may lead to a convergence of recommended prices between the
independent and the manufacturer channels. The FCA has stated that,
where this is the case, the recommended price mechanisms and
exchanges of information in question would fall to be assessed
under competition law.
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