The European Commission published on 27 August its much delayed Frequently Asked Questions on the Application of EU Antitrust Rules in the Motor Vehicle Sector ("FAQs"). The FAQs are organized into several topics, in particular the honouring of warranties, servicing in the context of leasing contracts, the supply of spare parts, the use/purchase of tools, access to technical information, and access to authorized repairer networks.
Overall, the focus is on the after-market rather than vehicle sales in keeping with the Commission's enforcement priorities as identified on the adoption of the new block exemption regime in 2010. The answers to the following questions are among those of interest:
- Question 4: The Commission will apparently allow suppliers to require consumers to use only authorized repairers and genuine parts under the terms of an "extended" vehicle warranty that is available for purchase "some years" after the vehicle is purchased (but not otherwise in the context of vehicle warranties).
- Question 5: In circumstances where warranty terms differ between Member States, the vehicle supplier may apply the warranty terms applicable in the Member State where the vehicle is purchased (even if it is exported to another Member State where more generous terms apply).
- Question 7 (concerning servicing obligations that may be imposed under leasing agreements): According to the Commission, for as long as there is no certainty under the leasing agreement that ownership of the vehicle will be transferred to the lessee, a leasing company can require that the vehicle must be maintained in the authorized repair network using exclusively vehicle-supplier branded parts.
- Question 8: Bonus or rebate schemes for captive parts risk amounting to an abuse of a dominant position where they are conditional on the purchase of competitive parts.
- Question 11: The Commission takes the view that a vehicle supplier might be required to supply spare parts directly to independent repairers in circumstances where independent repairers face "widespread difficulties" in obtaining captive parts from authorized distributors.
- Question 14: Under the standards of the guidance specific to the motor vehicle sector on access to technical information, vehicle suppliers are not required to supply technical information where it is likely to be used to manufacture tools as opposed to for the provision of repair and maintenance services.
- Question 15: For reasons of safety or security, in exceptional cases vehicle suppliers may require independent repairers to undergo necessary training prior to receiving specific technical information.
- Question 17: The Commission takes the view that independent repairers should generally be able to access and update electronic records of the vehicle's service history.
Finally, it is interesting that the European Commission does not comment on the implications of the two controversial judgments - one of the German Federal Court of Justice and one of the Higher Regional Court of Düsseldorf - concerning market definition in the context of access to authorized repair networks of vehicle suppliers adopted in 2011 and 2012 respectively (see VBB on Competition Law Vol. 2012, No. 2, available at www.vbb.com, and VBB on Competition Law Vol. 2011, No. 4, available at www.vbb.com). These judgments cast serious doubts on whether vehicle suppliers can be faulted as a matter of competition law for failing to appoint all qualified applicants to their authorized repair networks and, as such, run contrary to the clear view of the European Commission as articulated in the context of the adoption of the new block exemption regime in 2010. It is clear from the brief discussion in the FAQs on access to authorized repair networks that the view of the European Commission has not changed despite these judgments.
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