Germany: German Federal Court Of Justice Rules On Right To Be Admitted To Authorised Repair Networks

On 23 January 2018, the German Federal Court of Justice ruled on an action brought by a car repair shop (the claimant) against the general importer of Jaguar and Land Rover vehicles (the defendant). The importer operated a selective distribution system for the servicing of its vehicles. Effective in May 2013, the importer had terminated its existing service network contracts, offering new contracts to many of the previously authorised repair shops, but not to the claimant. The claimant then unsuccessfully brought a claim to be admitted as an authorised workshop, arguing, among other things, that the importer had abused its dominant position by refusing the repair shop access to the network.

The Higher Regional Court of Frankfurt had held on appeal that the importer was not dominant, since the relevant service market was not brand-specific and, as a result, rejected the claim. The Federal Court of Justice has now overturned the appeal court's ruling and referred the case back to the appeal court for reconsideration.

The Federal Court of Justice assessed the case under the rules on abuse of dominance and found that the appeal court had not sufficiently shown why the relevant upstream market (i.e., the market on which repair shops, on the demand side, request from manufacturers, on the supply side, resources used for the provision of repair and maintenance services) should be defined as not being brand specific.

The Federal Court of Justice instructed the appeal court to take into consideration the market conditions on the downstream market where the repair shop offers repair services to its customers because the conditions on the downstream market can influence how the upstream market should be defined. In particular, the appeal court should consider whether it is economically viable for repair shops to service Jaguar and Land Rover vehicles even if they do not have the status of an authorised repair shop. If this is not the case, the upstream market has to be defined as brand specific. In making this assessment, the court should consider whether it is technically possible for the repair shop to provide such services, e.g., whether it may source original spare parts from other authorised repair shops. In addition, it should consider whether an unauthorised repair shop can realistically expect to receive orders from customers, taking into account customers' own expectations including their emotional sensitivities.

The Federal Court of Justice distinguished this case from MAN (see VBB on Competition Law, Volume 2011, No. 4, available at In MAN, the Federal Court of Justice had found that it is not indispensable for a repairer to have the status of an authorised repairer in order to operate on the market for the repair and service of commercial vehicles and, therefore, that the market should not be defined as brand specific. According to the Court, this conclusion, which was based on the fact that most repair services for commercial vehicles were carried out by non-authorised workshops, cannot necessarily be assumed to apply to repair services for high-end passenger vehicles. Instead, an assessment must be made taking into account the demands, expectations and habits of car owners (for example, whether owners of Jaguar or Land Rover passenger vehicles are willing to pay higher prices to have their vehicles repaired by an authorised repair shop even after the expiry of the contractual guarantee). Such expectations and habits will be reflected in the customers' demand-related behaviour. Therefore, if it can be shown that most repairs for the passenger vehicles are performed by independent repair shops instead of by authorised repair shops, the status of authorised repair shop will not be considered indispensable.

The present ruling specifies that relevant market shares shall primarily be calculated based on the respective turnover of repair shops (in and outside the authorised repair network), instead of the numbers of orders placed with them. In addition, the turnover attributable to workshop services which do not require the knowledge and expertise that can typically only be acquired by specialising in a specific brand has to be weighted less.

In addition, the Federal Court of Justice further elaborated on the burden of proof to demonstrate the indispensability of being admitted as an authorised repair shop. Although this generally lies with the repair shop, it might shift to the opposing party where only it has access to the underlying data on the relevant market and can be reasonably expected to provide further details.

On the main issue in the case, the Federal Court of Justice clarified that, if the assessment shows that the market is brand specific, the defendant is dominant and may not - without objective reasons - deny access to the network of authorised repair shops if the claimant fulfils the qualitative requirements.

With the present judgment, the Federal Court of Justice confirmed its ruling of January 2016 on admittance to Jaguar's authorised repair network, which was only published after the decision of the appeal court was rendered in the present case. In overturning in that case a judgment of the Higher Regional Court of Frankfurt, the Federal Court of Justice already attributed particular importance to the expectations, demands and habits of end customers of high-end passenger vehicles. That case was referred back to the Higher Regional Court of Frankfurt, which has since decided the case (in a judgment which has not been published) and whose decision is currently again under appeal before the Federal Court of Justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions