FIGIEFA is the international federation of independent distributors of automotive replacement parts. It

represents the interests of 26 national trade associations of automotive aftermarket distributors from 23

countries worldwide. Founded in 1956, FIGIEFA's interest is to safeguard free competition in the

aftermarket on European and international level.

In the context of the expiry of the Motor Vehicle Block Exemption Regulation 1400/2002 (hereafter

December 2009, of a draft Regulation and draft Guidelines as future legal competition law framework

applicable to the automotive sector.

introduced so as to make the future legal framework more "future proof" and SME friendly for all the

market operators, to the benefit of the consumers.

In their day-to-day business, companies need to be sure that the European legislation will allow them to

effectively compete with one another and that their freedom of entrepreneurship will not be impaired.

the advantage of the vehicle manufacturers and in a fast evolving technological environment where

vehicles have become real "computers on wheels". These are the reasons why FIGIEFA (together with

makers to update the provisions contained in the current MVBER 1400/2002 in the form of a new sectorspecific

Block Exemption Regulation to be accompanied with a set of clear guidelines. In FIGIEFA’s view,

such guidelines would chase away any remaining doubts on what is and what is not permitted as regards

competition in the automotive aftermarket.

1 AIRC (Association Internationale des Réparateurs en Carosserie), CECRA (European Council for Motor Traders and Repairs), EGEA (European Garage

Equipment Association), the FIA (Fédération Internationale de l’Automobile), FIGIEFA (European Association of Independent Wholesalers of Automotive

Replacement Parts), FIRM (International Federation of Engine Rebuilders and Remanufacturers).

The opinion of FIGIEFA is that in an effort to re-balanced market powers in the automotive aftermarket

sector, this combination of instruments should include all the necessary provisions to provide market

operators with certainty when it comes to the possibilities to source and to supply spare parts, to have

access to technical information, tools and other equipment and to avoid the potential misuse of warranty

terms aimed at tying consumer to a specific repair network.

2 The "Impact Assessment Report" published together with a Communication by the European Commission in July 2009 rightly mentions the „advantage of

improving visibility" (para. 156).

wording. Added to the list of definitions contained in article 1 of the draft Regulation, detailed and specific

wording on "Independent Operators" and "Technical Information" should bring clarity to the sector.

The definition of "Independent Operators" should notably encompass all the operators directly or indirectly

involved in the repair, servicing, maintenance, testing or inspection of vehicles. As for the definition of

"Technical information", it could be based on the existing definition of "Repair and Maintenance

Information (RMI)" contained in the current European vehicle type-approval legislation3.

FIGIEFA agrees with the Commission’s point of view that there should be no restriction of sales of spare

parts by a member of a selective distribution system to independent repairers, as some parts can only be

sourced from the vehicle manufacturers and for which no alternative exists in the market (so-called

"captive parts").

Nonetheless, FIGIEFA must point out that in its Impact Assessment of July 2009, the Commission rightly

observed that it was not satisfactory for an independent repairer to have to source certain parts (captive

parts, i.e. products for which there is no substitute from another supplier) at retail prices from the

authorised repairer, its local competitor. On this point, FIGIEFA members ANCERA in Spain and ADF in

the United Kingdom have observed many instances in which the authorised repairer refused to supply in

practice parts to an Independent, apparently to prevent him from repairing the vehicle. In such situations,

or when the local authorised repairer offers to sell the parts only at a high price, the independent repairer

is locked out of the market. In theory he could attempt to source the part from another authorised repairer

further away. But as this would not normally be possible within the same day (but by overnight delivery

only), the time which it takes the independent to service or repair the vehicle is extended in a way that

many consumers will find unacceptable. This is particularly true in the case of commercial vehicles, where

an additional day during which the vehicle cannot be put to a productive use can result in a substantial

loss of business.

3 Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from

light passenger and commercial vehicles (Euro 5/6) and on access to vehicle repair and maintenance information as implemented and amended by Commission

Regulation (EC) No 692/2008 of 18 July 2008 and Regulation (EC) No 595/2009 of the European Parliament and of the Council of 18 June 2009 on type approval

of motor vehicles and engines with respect to emissions from heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information.

4 Especially in cases when vehicle manufacturers supply their authorised repairers with "economy line" spare parts of a lower quality than those originally fitted in

the vehicle as first equipment.

This is unacceptable, given that vehicle manufacturers and their authorised networks often dominate the

market for servicing and repair of vehicles of the respective brand, and given that vehicle manufacturers

are even monopolists with regard to captive parts.

To avoid such situations, FIGIEFA strongly upholds that all repairers, whether independent or member of

the authorised network, should be able to source all spare parts at wholesale level. FIGIEFA calls

upon the Commission to highlight in the proposed instrument that should a vehicle manufacturer or a

member of its network refuse the access to monopoly products, such decision would be treated just like

a refusal to provide access to technical information. In both cases, the vehicle supplier is the only source

of ‘something’ that is essential for the repair or maintenance of a vehicle. Where access is refused, these

anti-competitive effects of the vehicle manufacturer's distribution agreements are strengthened to a

degree that renders them incompatible with Art. 101TFEU.

Moreover, it is important for the future competition law framework to continue with the approach which the

Commission took in the addendum to the explanatory brochure ("Frequently asked questions") at

stated in the past, "there is nothing in the nature of a spare part that requires it to be sold exclusively by

firms that are authorised to repair vehicles of the make in question". In FIGIEFA’s view, such an obligation

amounts to a requirement that should not be exempted under article 101(3) in the context of a qualitative

selective distribution system.

FIGIEFA welcomes the decision of the Commission to tackle restrictions imposed by a vehicle

manufacturer on a parts supplier aiming at limiting the ability of the latter to supply the aftermarket with its

products.

Specialised parts producers are the key source for replacement parts. Access to their products is a

prerequisite for the independent aftermarket’s ability to compete with the vehicle manufacturers’

also supply original equipment and spare parts to the vehicle manufacturers. Such suppliers of original

equipment have often told members of FIGIEFA that they find themselves unable to sell their products to

independent parts wholesalers because of respective obligations imposed on them by vehicle

manufacturers.

FIGIEFA would like nonetheless to point out that the language chosen by the Commission could be

refined and enhanced in order to avoid the existence of loopholes which would seriously harm the

intention of the policy makers on this important issue. More precise guidance is required on practices

constituting an indirect restraint on the supplier’s ability to sell its products as spare parts to the

aftermarket.

FIGIEFA strongly advocates that where a supplier is not certain about recouping its investments in

product development or tooling, its ability to sell its products as spare parts should not be limited in an

agreement with the vehicle manufacturer. At most, where the vehicle manufacturer provides

indispensable know-how without which the supplier would have been unable to manufacture components

supplier.5

5 Funke, Erstausrüstungsverträge und Ersatzteilvertrieb, ZfAW 2005 (3), p. 31, 34 f.

Nevertheless, FIGIEFA stresses that in order to bring clarity on this issue, the Commission could seize

the opportunity to introduce indications on what percentage of minimum purchase could be regarded as

MVBER 1400/2002 could be used as benchmark.

The Commission has observed that authorised repairers continue to source the vast majority of their

requirements in spare parts from within the authorised network. Given that original spare parts and parts

of matching quality are often available at lower prices from independent parts wholesalers, this continued

market trend might appear surprising. In its Evaluation Report of 28 May 2008, the Commission refers to

the background of this enforcement experience, the future sector-specific guidelines should highlight that

bonus schemes, incentives or threats may not be abused to discourage authorised repairers from

sourcing quality spare parts from independent operators.

A respective reference to the relevant principles of competition law would be helpful for repairers and

other SMEs, which may not be familiar with the details of relevant case law but which would certainly find

it helpful to be able to rely on tailored wording in the sector-specific guidelines in their dealings with

vehicle suppliers. FIGIEFA members have reported that vehicle manufacturers use bonus schemes,

rebates, incentives and threats to ensure that authorised repairers source spare parts almost exclusively

from within the authorised network. The future guidelines should render clear that economic incentives

and the application of pressure can amount to a violation of competition law. In this context, the

guidelines should emphasize the freedom of authorised repairers to source spare parts complying with all

applicable legal requirements from the supplier of their choice. In particular, authorised repairers should

be free to source quality products from independent providers. Such purchases should not be

discouraged by direct or indirect means. This aspect is made clear in the current Explanatory Brochure

(i.a. at qu. 77 and 80), and not referring to these issues in the future instruments would send the wrong

message to the market.

In the event of a dispute (between the vehicle supplier and its authorised repairer) related to the suitability

of a part, the burden of proof should remain with the vehicle manufacturers. Furthermore, competition

authorities should take enforcement action whenever vehicle manufacturers employ unlawful fidelity

enhancing mechanisms.

Competition law coherence with regards to access to technical information for both pre- and post-2009

type-approved vehicles is crucial as the independent aftermarket operators provide products and services

for all types of vehicles irrespective of their age. FIGIEFA therefore welcomes the decision of the

Regulation on the access of independent operators to technical information would have the "advantage of

improving visibility."8

FIGIEFA welcomes the Commission’s view expressed in Recital 13 of the proposed Regulation that the

existence of effective competition in the aftermarket depends on the level of competitive interaction not

only between the members of the authorised repair network of the vehicle manufacturers but also

between the members of such network and independent operators, including independent spare parts

providers and independent repairers.

Despite the latter, FIGIEFA regrets that the Commission has not fully taken the opportunity to recognise

more expressly that one essential function shared by all the independent aftermarket operators is to

support directly or indirectly the activities of independent repairers and fostering true competition in the

independent repairers.

6 "An obligation to use spare parts of a particular brand for up to 30% of the authorised repairer’s purchases of competing spare parts is not considered to be a

non-compete obligation and would be covered by the Regulation156 as long as the authorised repairer is free to buy these goods from the supplier or from other

sources designated by the supplier, e.g. as cross-supplies from other authorised distributors or repairers."

7 Staff Working Document N° 3, page 8. This enforcement experience is however not reflected in the assessment in Staff Working Document N° 4, page 26

8 Impact Assessment Report, para. 156.

Moreover, effective competition in the automotive repair sector largely depends on the availability of

spare parts and repair equipment necessary to ensure quality repair and maintenance services in what

upon the Commission to recognise this factual trend in paragraph (54) of the Guidelines.

FIGIEFA also strongly advocates for the introduction of a clear reference to the Euro 5 and Euro VI

implementing measures in the proposed Guidelines as both the political part and the technical parts of the

type approval legislation contains key provisions as regards what is to be considered as "repair and

maintenance information".

Furthermore, in the draft Guidelines the Commission has included a test aiming at defining whether

withholding a specific piece of information may lead an agreement to be caught by article 101 TFEU. On

this point FIGIEFA urges the Commission to strike out the last criterion of the test on whether the

information in question is technical repair information or information of another type such as "commercial

information". Indeed, such a wording could open a door for many attempts of abuses by vehicle

manufacturers(and thus lengthy litigation) refusing to grant access to technical information as it has been

whether the information is ultimately related to repair or maintenance services is already addressed in

bullet point no. 2, which is why bullet point no. 4 appears to be redundant.

manufacturers may refuse to grant access to technical information. Moreover, the question whether

withholding the information would restrict the ability of the independent operators to be active in the

market should be the key issue to address and as such should be placed as the first criterion of the

proposed test.

As regards the essence of "technical information", FIGIEFA welcomes the efforts of the Commission to

9 Some positive effects of such multi-brand environments are already discussed in the current Explanatory Brochure on the MVBER (questions 92 and 93).

10 On many occasions, this recital has been used to unduly withhold technical information and the originally well-intended reference to the use of "less restrictive

means" was rarely used.

11 When comparing the current provisions on technical information in the MVBER 1400/2002, the Euro 5/6 Legislation and the ongoing standardisation process

currently debated within CEN, with the Commission’s draft proposal, FIGIEFA noticed that some crucial features are missing.

As Commissioner Kroes stated in summer 2009, "It is important to give the automotive sector… legal

certainty and predictability". Only a sector-specific regulation complemented with detailed guidelines will

ensure free and effective competition in the aftermarket to the benefit of consumers, while providing

SMEs with legal certainty. As the European Court of Justice recently pointed out, "Article 81 EC, like the

other competition rules of the Treaty, is designed to protect not only the immediate interests of individual

The spare parts distributors and repair chains which FIGIEFA represents form an essential part of the

***

12 Judgment of the ECJ of 4 June 2009, C-8/08 T-Mobile Netherlands, at para. 38