Notice emphasizing to a motor vehicle manufacturer the right of market access

The Danish Competition and Consumer Authority's notice of 18 December 2018

By assistant attorney Simon Christensen and senior intern Sebastian Willigenburg Andersen

Complaint from an independent repair workshop

The Danish Competition and Consumer Authority received from an independent motor vehicle repair workshop a complaint about a motor vehicle manufacturer preventing the workshop's access to the spare part market and to technical information and diagnostic tools.

The motor vehicle manufacturer sells vehicles and spare parts in a selective distribution network with authorised repair workshops. The manufacturer had informed one of its authorised repair workshops that they were not allowed to sell or resell spare parts to third parties. In addition, an unauthorised repair workshop had had difficulties in getting access to technical information and diagnostic tools needed for the repair and maintenance of the manufacturer's vehicles.

The notice

On receipt of the complaint, the Competition and Consumer Authority initiated an investigation of the selective distribution system and the circumstances described above. The investigation resulted in the Authority's issue of a notice emphasizing that directly unilateral conduct may constitute an anti-competitive agreement if there is a concurrence of wills between the parties. Hence, according to the notice, a distributor's tacit approval may meet that criterion, and so may a selective distribution system in which independent repair workshops are prevented from gaining access to technical information and diagnostic tools, etc.

It also appears from the notice that the Authority considers it to be in violation of section 6 of the Danish Competition Act and article 101 of the TFEU if, in connection with a selective distribution system, measures are taken to prevent or hinder independent repair workshops' access to the market. Furthermore, according to the notice, the block exemption regulation for the motor vehicle sector does not apply in this case, because it is a restriction that is exempted from the regulation.

According to the Authority, it must therefore (basically) be up to each authorised repair workshop to decide whether it will sell spare parts to independent repair workshops for use in their repair and maintenance work. In addition, the Authority emphasized that technical information and diagnostic tools, repair guides, etc. must be made available to the members of the repair network without any discriminatory treatment preventing or hindering the members' access to the market.

The Competition and Consumer Authority found, however, that there are currently no reasons to carry out any further investigation, because the extent of such investigation will not be proportionate to the expected impact on competition. Besides, the motor vehicle manufacturer had been cooperating with the Authority to rectify the matters giving rise to concern.