05.10.2020
In September this year, Regulation (EU) 2018/858 on the approval and market surveillance of motor vehicles and their trailers entered into force. Prior to this, access to repair and maintenance information for vehicles was regulated in the sometimes highly controversial provisions of Regulation (EC) No 715/2007. The decision of the Federal Court of Justice (BGH) of 30 January 2020 - I ZR 40/17 is one of the last decisions based on the previous legal situation.
The complaining German trade association representing wholesalers of motor vehicle parts had accused KIA of hindering competition in the spare parts market. As reason for this, the claimant stated that electronic spare parts databases were not sufficiently made available, to the detriment of customers who paid too high prices for spare parts and repairs.
Users only had read access to the databases, which keep all (original) components installed in a particular vehicle available under the respective vehicle identification number. It was not possible to compare the prices of all available spare parts. The claimant therefore requested electronic access in order to also be able to make data from independent spare parts manufacturers available. In the course of the proceedings, in 2018 the Federal Court of Justice referred two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling regarding the interpretation of Article 6(1) sentence 1 of Regulation (EC) No 715/2007, which is relevant here (decision of the Federal Court of Justice of 21 June 2018 - I ZR 40/07). On the one hand, it was unclear whether fulfilment of the manufacturer’s obligation under Article 6(1) sentence 1 of the Regulation required the information to be made available in a form that could be further processed electronically, and on the other hand, whether denying independent operators such access constituted discrimination. In 2019, the CJEU issued its opinion on the legal issues (CJEU, judgment of 19 September 2019 - C-527/18). According to the Court, the first sentence of Article 6(1) of Regulation (EC) No 715/2007 must be interpreted as not requiring automotive manufacturers to provide independent operators with access to information in a form that can be electronically processed. Moreover, it is no discrimination of independent operators if the creation of an information channel for authorised dealers meant that more or better information was not available.
With its decision, the BGH has now implemented the judgment of the CJEU.
It holds that the first sentence of Article 6(1) of Regulation (EC) No 715/2007 lays down the obligation to provide independent operators with unrestricted and standardised access to vehicle repair and maintenance information through websites using a standardised format in a readily accessible and prompt manner.
The granting of standardised access means that the information has to comply with the technical requirements of the OASIS format. However, this does not result in the obligation to make the information available in an electronically processable form, according to the BGH. Granting unrestricted access, on the other hand, relates to the content of the information to be provided and not to the arrangements for making it available, so that here too the restriction to read-only access is not harmful.
Nothing to the contrary is apparent from the fact that the information must be provided in a readily accessible and prompt manner, the BGH states.
Nor is there any infringement of the prohibition of discrimination of Article 6(1) sentence 1 of Regulation (EC) No 715/2007. The opening of an information channel through which only original spare parts from authorised dealers could be obtained is not present, does not constitute indirect discrimination, as alleged by the claimant, the BGH holds. The requirement of non-discriminatory access should be understood in such a way that authorised dealers and repairers should not be placed in a more advantageous position than independent operators, both in terms of the content of the information provided and the modalities of access. There would be no discrimination against independent operators as long as no more or better information was available through the additional information channel, when an additional information channel was opened for authorised dealers.
The spare parts business in Germany is a market worth billions. The claimant hoped that the proceedings would stimulate competition by making it easier for repairers to find alternatives to original spare parts. This could have led to lower prices for consumers. However, the BGH found that car manufacturers already comply with their obligations by granting read access.
Now it remains to be seen how the market will develop under the new EU Regulation from September 2020. Since the judgment relates solely to the specific provision of Article 6(1) sentence 1 of Regulation (EC) No 715/2007, no general conclusions should be drawn from it as regards questions of access to data.
Dr Geert Johann Seelig
Partner
Hamburg
Geert.Johann.Seelig@luther-lawfirm.com
+49 40 18067 16807
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