Pawel Malecki: As of 1st of June 2010 there’s new regulation MVBER along with new sector specific Guidelines. What was the FIGIEFA’s (and it’s member organisations, like polish Stowarzyszenie Dystrybutorów i Producentów Części Motoryzacyjnych – SDCM) part in the process of creating new law?

Michel Vilatte: Yes, since 2007 FIGIEFA and its national member associations have intensively accompanied the review of the MVBER 1400/2002. FIGIEFA has contributed to all the public consultation procedures launched by the European Commission and also had the opportunity to discuss in great details with the Commission’s services and the European Parliament. We as FIGIEFA, together with our partners in the „Right to Repair Campaign” and of course our appreciated Polish member SDCM have always stressed that robust, sector-specific rules are needed to ensure real competition in the market for vehicle servicing, spare parts and repair.

PM: The campaign for new MVBER lasted three years. Should Independent Aftermarket be satisfied with new rules?

MV: The result achieved must be seen in general as a milestone in European legislation affecting the automotive aftermarket. One must keep in mind that the European Commission had in 2007 initially the plan to abolish all sector-specific rules for the aftermarket and to put the entire sector under the general competition regime applying e.g. to PCs, wasching machinges etc. Thanks to the efforts of all the independent aftermarket stakeholders involved in this campaign, we can now rely on 2 legal instruments of importance since the 1st June, a sector-specific Block Exemption Regulation and a set of European Commission Guidelines on the application of European competition law to the automotive sector.

PM: What are the most important Independent Aftermarket’s demands introduced into new law or preserved from MVBER 1400/2002?

MV: Surely the clarification on the misuse of warranties is a great step forward for our organisation and so is the reinforcement of the rules concerning the access to technical information for all the independent operators.

Once and for all, the European Commission has expressly stated that the vehicle manufacturer’s warranty may not be made conditional upon the use of the vehicle manufacturer’s spare parts or on the repair or maintenance of the vehicle within the authorised repair network, and this during both the legal warranty period and any extended warranty period.

As regards technical information, the European Commission has taken into account our long standing position: it has now enshrined the principle of a cross-referencing between competition law and the more technical rules on access to repair and maintenance information contained in the Euro 5 and Euro VI Type-Approval legislations (for passenger car and light commercial vehicles & heavy duty vehicles).

PM: On the contrary: what Independent Aftermaket was not able to achieve?

MV: FIGIEFA fought until the very last minute to enhance the text finally adopted by the Commission. Clarity is key for the aftermarket operators, most of which are small and medium-sized companies (SMEs) with little or no legal counsel at hand. We therefore would have liked to see for example wording on access to captive parts for independent spare parts distributors. Unfortunately, at some point the big book had to be closed and the legislation to be adopted.

We also would have liked to see access to technical information and the warranty issue being included as supplementary hardcore restrictions into the BER, and this as a strong political signal. Although we were active on this issue until the end, the European Commission finally rejected our request. Nevetherless, this is not problematic from a technical point of view. Such hardcore restrictions would have been a „nice to have”. Indeed, the Commission pointed out that as vehicle manfacturers concentrate a very high percentage of the market share in the repair and maintenance of the vehicles of their respective brands (above 30%), they will not be able to enter the safe harbour created by the BERs. They will therefore have to subject their agreements to the strict application of the normal competition rules and de facto to the provisions on access to technical information and on the misuse of warranties contained in the Guidelines.

PM: How does new law affect Independent Aftermarket operators?

MV: In practice, the new rules confirm and strengthtened the provisions of the former MVBER 1400/2002. The new framework is not a revolution but has to be seen as a true evolution towards effective competition in the aftermarket.

PM: Will independent garages gain easier access to technical information? Would the cost of such access be lower than before?

MV: With the clear reference to the Euro 5 legislation (passenger cars and light duty vehicles) and Euro VI (heavy duty vehicles) and the list of items given in the Guidelines, it is now much clearer which kind of technical information vehicle manufacturers have to provide. Moreover, the European Commission has elaborated a test which will be needed in the future to assess if a new type of information derived from changes in vehicle technology will be needed to properly repair and maintain vehicles. One might for example think of access to the electronic service history booklets. As for the cost, the legislation points out that the prices charged should not discourage access to the information by failing to take into account the extent to which the independent operator uses the information.

PM: How can independent garage execute it’s rights against vehicle manufacturers?

MV: On this forefront, the European Commission’s approach has changed for the better. Without going into too much technical legal details, the European Commission has simplified the process by which it can really act and can now impose sanctions on vehicle manufacturers in a faster way. Nevertheless, we hope that a simple letter to vehicle manufacturers reminding them the content of the Guidelines and of the BERs will be sufficient to remedy problematic situations. Should this be unsufficiant, the European Commission has expressly inserted in the legislation (which is quite rare) that it will closely monitor competition in the automotive aftermarket notably as regards access to technical information and the misuse of warranties. At national level, the National Competition Authorities are competent to hear complaints from market operators and ultimately courts of law may hear disputes if necessary?

PM: Are there any changes in case of „original parts” (without VM’s logo) and „spare parts of matching quality”?

MV: Please let me start by reiterating that the definitions were (also in the old MV-BER) introduced by the EU Commission to define what the vehicle manufacturers’ franchise network is allowed to source from independent sources. Of course independents are free to purchase and to use any parts or equipment for the repair and maintenance of vehicles, because as long as these fulfil the legal requirements, notably those contained in the product safety and environmental legislations.
The legal framework continues with the same definition of “original parts” which we knew so far under the MVBER 1400/2002.
To be considered as matching quality parts, parts must be of a sufficiently high quality that their use does not, according to the EU Commission, „endanger the reputation of the authorised repair network”. The burden to prove that a part does not fulfil this requirement falls upon the vehicle manufacturer who must bring evidence to that effect in case it wants to discourage authorised repairers from using such parts.
Following this new definition, a part of ‘matching quality’ does not refer per se to the quality of the part originally fitted into the vehicle. It may match the quality of the spare parts of a specific range supplied by the vehicle manufacturers to its authorised network, including spare parts from a vehicle manufacturer’s “economy line”.
Does new law have any impact on regular car owners?

Free choice for car owners is at the center of the new competition law framework. The objective of the European Commission, through the adoption of these new rules, it to make sure that consumers have access to the full range of spare parts for their car, that they can choose the repairer they want for the repair and maintenance of their vechicles and this even during the warranty periods.

PM: Does new law (regulation combined with sector specific guidelines) sufficiently protects interests of Independent Aftermarket?

MV: The legal texts are robust. But there might be instances where questions come up or where vehicle manufacturers might challenge the interpretation of the legislation. Now all is a matter of implementation and application in the various national markets. So we call upon independent operators to monitor the market and to report any obstacles to their respective associations. What is sure is that vehicle manufacturers have been warned, these issue will be scrutinised by the Competition authorities.

PM: Current law will take effect till 2023. What are the biggest challenges Independent Aftermarket is facing now?

MV: Leaps in modern technologies require that IAM operators must be ready to adapt to new vehicle repair and maintenance. As for the representative organisations of our sector, we will have to closely monitor the solutions put forward by vehicle manufacturers in their new models to make sure that no closed solutions excluding per se IAM operators will be put on the market. As an example, we are currently turning our attention to on board emergency call services (eCall) which could be combined with business solutions (e.g. remote vehicle diagnostic) potentially endangering the future of car repair for the independent operators.

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