TY - JOUR AU1 - Wegner, Anne C AU2 - Oberhammer, Sophie AU3 - Berger, Almuth AB - Key Points The European Commission and national authorities continue to actively pursue cartels across the value chain in the automotive industry. Customers pursue follow-on damages claims against automotive parts suppliers and truck manufacturers. In particular, the truck manufacturers are facing an unprecedented number of damage claims in different EU jurisdictions after the European Commission fined them with a record amount of €2.9 billion for cartel behaviour last year. The claims cover hundreds of thousands of truck purchases and the amounts could end up totalling billions of euros. The European Commission has dealt with major mergers in the industry – most prominently the acquisition of Opel by PSA – albeit more as a political highlight than as a problematic merger case. Supplier combinations have led to two high-profile phase two cases in the automotive brake supplier industry – one cleared with commitments and one withdrawn. The European Commission has presented its Report on Access to Technical Information and the Higher Regional Court of Frankfurt has rejected independent operators’ claims to access to more and other technical information than the presently provided read-only access via the manufacturer’s website. Turkey has introduced a new motor vehicle block exemption, which includes important changes regarding the distribution of new vehicles and equivalent spare parts. I. Introduction The present survey covers relevant developments in competition law and the automotive industry that occurred between our last survey (end of June 2016)1 and the end of July 2017.2 As has been the case in our previous reports, the industry saw a high volume of activity at both the supranational level in the EU and the national level in member and non-member states. The lion’s share of the highlight cases arose from horizontal agreements. The European Commission and national authorities have continued to actively uncover cartels on most levels of the industry’s value chain and related markets. We also briefly report on an ongoing investigation that has received significant media attention: an alleged cartel in which five German carmakers may be involved. In addition, a wave of damages claims arising from previously fined horizontal agreements looms on the horizon, especially with regard to the truck manufacturers’ cartel but also with a view to the supplier industry. Another important issue in the industry is that of distribution and service networks. Manufacturers and buyers/aftermarkets service providers face changes in market conditions that require them to adjust their vertical network schemes. In many cases, distributors which are not (or no longer) members of the network post-restructuring raise an antitrust laws claim to achieve their (re-)entry into the system. In this context, Advocate General Wahl’s opinion in the Coty case may foreshadow an important development as to selective distribution systems and legitimate selection criteria. Even though it is not an automotive case, it demonstrates that manufacturers may have a wider discretion to justify qualitative selection and to apply the respective selection criteria than enforcement activities of Antitrust Agencies in member states, in particular Germany’s Federal Cartel Office (Bundeskartellamt), have lately suggested. There have also been a few highlight merger cases of vehicle manufacturers, auto parts suppliers, and online repair and maintenance data platforms. As will be explained in Section IV, current competitive conditions in the carmakers’ market have made it relatively easy to obtain antitrust approval for the transactions. The same cannot be said for mergers in some components, auto parts, and repair and maintenance data platform markets. Furthermore, we present recent developments with regard to access to technical information. The present survey also covers developments in the legislative area: In Turkey, a new block exemption for the motor vehicle industry entered into force in February 2017, the main changes of which will be described in Section V. There are also some proposed amendments to Switzerland’s competition law under discussion, which would be relevant for the automotive industry. II. Horizontal agreements A. Auto parts suppliers Since our report last year, this stage of the value chain has seen a reasonably high volume of activity, both at the EU and national levels. The present survey includes updates from cases that were already on-going last year as well as new developments. At the EU level, on 7 September 2016, the Court of Justice affirmed a General Court decision where the latter ruled, among other issues, that the criteria applied by the European Commission to calculate the fine imposed on a cartel in the car glass market was justified.3 As was described last year,4 the case concerned an agreement to allocate market quotas and to share commercially sensitive information. One of the companies, Pilkington, appealed the General Court’s decision based on three grounds – all of which were rejected by the Court:5 Pilkington firstly contested that the turnover used for the calculation of the fine wrongly included sales made pursuant to contracts that predated the infringement period. The ECJ held that the nature of the agreement caused the turnover based on contracts prior to the infringement to be relevant for the calculation of the fine. Since the agreement consisted in allocating market shares, sales based on both pre-existing and new contracts were required to obtain an idea of the economic relevance of the agreement.6 Secondly, Pilkington criticised that by applying an incorrect exchange rate (an average over the course of the year prior to the decision instead of the prevailing rate at the date of the fine), the European Commission exceeded the 10 per cent ceiling of total turnover. The Court considered, however, that the contested average rate of the year prior to the adoption of the decision was adequate in reflecting the economic reality of the applicant at the time of the assessment of the relevant turnover.7 Pilkington finally held that the fine was disproportionate and discriminated against the applicant’s financial conditions vis-à-vis those of its fellow cartel members. The applicant had argued that since it was less diversified than the other undertakings involved, it was against the principle of equal treatment and proportionality that the European Commission imposed a fine that reflected a higher proportion of its total turnover than was the case with regard to the other cartel participants. According to the Court, however, there is no obligation to take into account the proportion of the undertakings’ overall turnover represented by the fine.8 The European Commission, on its part, has been busy with a number of cartel cases in auto parts markets. On 8 February 2017, it imposed a fine for a total amount of €68 million on four battery-recycling firms for fixing the purchase prices of used batteries.9 All four companies applied for leniency. The first applicant, Johnson Controls, received full immunity, while one of the other applicants’ application (Campine’s) was rejected.10 In the latter case, the European Commission considered that the application did not contain a disclosure of the participation in the agreement. The duration of the agreement is said to have spanned from 2009 to 2012.11 According to the European Commission, the companies were well aware of the illegality of their behaviour and used coded language to disguise communications.12 All three parties that did not receive full immunity (Eco-Bat, Recyclex, and Campine) have challenged the decision.13 Another multimillion Euro fine was levied by the European Commission against suppliers of car lighting systems. On 21 June 2017, the authority found three companies – Automotive Lighting, Hella, and Valeo – guilty of price-fixing and of agreeing on trading conditions for this product line.14 All three firms applied for leniency and agreed to settle the case. Valeo, being the first one to come forward, received full immunity. Automotive Lighting and Hella received reductions of 35 per cent and 20 per cent, respectively.15 Because of the settlement, the three companies received a further 10 per cent reduction. After these discounts, the total fine amounted to €27 million.16 According to the decision, the punished agreement consisted of two parts: (1) the companies discussed quotes for tenders, negotiation strategies, and the status of talks with clients; and (2) agreed on raising prices of spare parts for discontinued vehicle models and on how long after discontinuation they would maintain contractual availability of these products.17 The duration of the infringement was three years.18 During the period covered by the present survey, the highest fine imposed by the European Commission in an auto-parts market was for €155 million.19 The affected products were air conditioning and engine cooling components. The decision concerns four different cartels, with each of the six participating firms (Behr, Calsonic, Denso, Panasonic, Sanden, and Valeo) taking part in at least one of them.20 The European Commission divided the infringements according to the affected purchaser of the components and the specific product concerned. The reason for grouping the agreements into one case was not explicitly mentioned in the press release but it may have been because all products concerned belong to the same category of components and that some companies participated simultaneously in more than one cartel. According to the press release the companies coordinated prices, markets, and exchanged commercially sensitive information.21 Denso and Panasonic received full immunity for being the first informants of three respectively one of the cartels. The other four companies had applied for leniency as well and received, as a consequence, reductions on their fines.22 All six firms agreed to settle the case and received a further 10 per cent reduction.23 According to competition commissioner Margarethe Vestager, the probe was part of a global endeavour since both the US and Japan were investigating the cartel as well.24 The fact that the European Commission decided to segment the violations into four different cartels instead of one may have negatively affected the companies regarding the fines imposed. The reason is that the 10 per cent cap was then applied to each one of the four fines, which means that the overall amount that the firms faced may indeed be more than the mentioned ceiling. On the other hand, the fact that the European Commission has to take into account the sales affected by the agreement when calculating the fine means that each of the four cartels was punished for a lower amount. The full text of the decision is still not available and only then one can know for certain whether the segmentation of the infringements did affect the companies. Regarding ongoing investigations, the European Commission raided the premises of car door locks manufacturer Brose for suspicions of collusion. The inspections were reported in September 2016 but no specific dates have been provided for when they actually took place. The reports do not name the other suspected companies/company or whether they have been raided, too. According to a news article, US officials conducted parallel raids as well.25 There is furthermore an ongoing investigation in the occupant safety system market since 201126 and Continental and Robert Bosch are reportedly preparing to receive a fine for colluding in the brake systems market.27 Continental itself announced that it anticipates a fine due to antitrust proceedings28 and a spokesperson confirmed in March 2015 that the company was cooperating with the Commission regarding an investigation of one of its subsidiaries.29 The European Commission’s investigation into possible violations of Art. 101 and 102 TFEU by automotive exhaust systems manufacturers was closed due to a lack of sufficient interest. The European Commission stated that it was going to focus its resources on cases where enforcement of antitrust rules will have the greatest economic impact, to the benefit of business and consumers.30 It appears that the wave of investigations into the auto parts supplier industry is slowly coming to an end. National authorities have also been active in this part of the automotive industry, namely the Spanish Competition Authority (CNMC) and Germany’s Federal Cartel Office (Bundeskartellamt). In Spain,31 the CNMC announced in January 2017 that it started proceedings against three corporate groups for collusion in the recycled batteries market. The agreement allegedly consists in the exchange of commercially sensitive information with the purpose of coordinating purchase prices of used batteries.32 The companies under investigation were raided in December 2015.33 In a probe that focused on the supply of bumpers, door panels, instrument clusters, and side panelling, the CNMC did not find any evidence of wrongdoing and decided in May 2017 to not pursue the case any further.34 Germany’s Federal Cartel Office(Bundeskartellamt), on its part, fined three heat shield manufacturers a total amount of €9.6 million on 13 July 2017.35 The companies fined were Elring Klinger Abschirmtechnik, Estamp and Lydall Gerhardi who all settled the case with the Bundeskartellamt.36 Two of them received a reduction in their fines.37 No fine was imposed on Carcoustics International since the cartel was uncovered due to its leniency application.38 In addition, as reported last year, Germany’s Federal Cartel Office (Bundeskartellamt) investigates possible anti-competitive conduct on the supply side (steel producers) and – in parallel – one on the demand side (car and auto parts manufacturers).39 The last update of the investigation was in July 2016, when Bosch and ZF Friedrichshafen (as steel buyers) confirmed that they had been raided.40 According to the media, these investigations spawned a further investigation at the European level that received significant media attention after the German magazine Der Spiegel first reported it toward the end of July 2017. The latter case will be discussed in the next subsection. In Hungary, one of the firms fined for cartel behaviour in the car battery disposal market appealed the competition authority’s decision arguing that the authority misused the settlement procedure by giving more weight to evidence provided by the settling parties than to that presented by non-settling parties.41 The case is presently pending at the Budapest Administrative and Labour Court. It was the first case in which the Hungarian authority made use of the settlement provisions after they were introduced in July 2014.42 B. Vehicles manufacturers When talking about antitrust in the automotive industry in 2017 the investigations into an alleged cartel in which all major German manufacturers are supposedly involved cannot be ignored: The case has received enough media attention to dispute the Google Shopping decision’s spotlight this year. Before proceeding any further, a note of caution is in order. The present survey neither intends to reach any conclusions on the likelihood of findings of anticompetitive behaviour by the authorities nor on the merits of the case. It is too early at this point for any conclusions. Having said that, some information that can be gathered from media reports is briefly presented below. The first piece of information came from a report by the German magazine Der Spiegel which reports to have had access to internal documents from the investigation – amongst them a leniency application and other internal documents. The report states inter alia that employees from the five brands allegedly participated in up to 60 different working groups (established according to subject matter) in which sensitive issues may have been discussed.43 In the mechanical attachments working group the article reports, for example, that the carmakers agreed on the maximum speed at which the top of a convertible car can be opened – 50 km per hour. The concerns that prompted this particular agreement were allegedly not only costs but also weight, increasing technological risk and crash relevance.44 Other working groups are reported to have discussed issues where it is hard to see an anticompetitive nature from the outset. One of them, for example, appears to have been concerned with the need to convince all gas stations to keep in stock AdBlue, an important fluid that some diesel vehicles require in order to reduce nitrogen oxide emissions,45 which appears prima facie not particularly suspicious. Der Spiegel’s first article does raise some questions that will have to be clarified as the investigation moves on. This is underlined by the circumstance that the investigation – despite its size and even though the authority appears to have had in its file information on the conduct for three years already – has not been made public by the antitrust authorities themselves with a preliminary conclusion or clearly defined suspicion which it investigates. Rather, the information has been leaked before the authorities have made it public based on a clearly defined approach to the case. C. Dealers Three competition authorities of EU member states – Spain’s CNMC, the Czech Republic’s UOHS, and Romania’s CC – also pursued cases of potential anticompetitive conduct in new vehicle retail markets. In Spain, the antitrust agency continued its series of investigations and fines on the retail level regarding intrabrand agreements.46 It fined car dealers for collusive agreements in another two cases. On 12 July 2016, four Volvo dealers and a consultancy firm were found guilty of fixing prices and terms and conditions of sales and services.47 The amount of the fine totalled €1.28 million.48 The intrabrand agreements started in February 2007, were temporarily suspended in October of that same year and were resumed from October 2009 until December 2011.49 The consultancy firm was fined for aiding the colluding firms by carrying out the task of monitoring compliance with the agreement.50 Its fine was substantially smaller than those imposed on the dealers.51 The other case decided by the Spanish competition authority (CNMC) concerned another intrabrand cartel of six Nissan dealers, which were aided by two consultancy firms and Nissan Spain. On 28 July 2016, the Spanish authority found these firms guilty of price-fixing, exchanging commercially sensitive information and agreeing on uniform commercial terms.52 The total fine amounted to €6.03 million.53 The two consultancy firms which had been tasked with monitoring compliance with the agreement were fined as well.54 Again, their fines were lower than the ones imposed on the rest of the participants. Nissan Spain was found to have been in charge of coordinating the agreement and thus received the highest fine.55 The Czech Republic’s competition authority (UOHS) found two dealers guilty of bid rigging. The decision, which was announced on 4 July 2017, imposes a fine of €0.17 million and €3,176 to NH Car and Auto Bílek, respectively.56 The two firms coordinated their bids in three tenders issued by the Czech School Inspectorate.57 Both companies received a reduction of 20 per cent of their fine for having agreed to settle the case.58 Regarding ongoing investigations, the Romanian Competition Council (CC) raided the premises of several Dacia and Renault dealers for suspicions of fixing the price of car components and services.59 The news were reported on 28 May 2017 by Profit.ro without citing the identity of its sources.60 D. Other related markets (motor insurance, financing, car rentals) Motor insurance companies were the target of a number of cases decided or initiated during the period covered by the present survey. On 4 July 2017, the European Commission announced that it had raided the offices of car insurers, aided by the Irish Competition and Consumer Protection Commission.61 The Italian competition authority (AGCM) announced on 15 December 2016 that it has opened an investigation into the same economic sector. Two motor insurance firms made public statements regarding future price increases referring to the entire industry. Therefore, all companies operating in Italy were included into the probe. The authority has already conducted on-site inspections on some of the investigated insurers.62 In another related market, Italy’s AGCM announced on 15 May 2017 that it has opened a probe into the financial branches of car manufacturers. These subsidiaries, which provide leasing services to car purchasers, are charged for the exchange of commercially sensitive information (prices and terms applied to dealers and consumers).63 The companies targeted by the investigation are: Banca PSA Italia, BMW Bank, FCA Bank, FCE Bank, General Motor Financial Italia, Mercedes Benz Financial Services Italia, RCI Banque, Toyota Financial Services, and Volkswagen Bank. In addition, the probe includes two industry associations as well – Associazione Italiana Leasing and Associazione Italiana del Credito al Consumo e Immobiliare.64 Italy’s AGCM decided in March 2017 to close its ongoing investigation of the long-term car rental market. The AGCM decided to close the probe after concluding that the exchange of information under investigation was not capable of restricting competition.65 Finally, the Turkish antitrust agency probed the local motor insurance industry. However, it announced in July 2017 that it closed the investigation due to a lack of evidence.66 E. Damages litigations This practice area has seen quite a volume of activity during the covered period, not only – but to a significant part – due to claims arising from last years’ truck manufacturers cartel decision by the European Commission. As reported last year, the European Commission fined four truck manufacturers a total amount of €2.92 billion for, among others, fixing the prices of medium and heavy trucks sold between 1997 and 2011.67 One of the manufacturers, MAN, received full immunity for being the first leniency applicant. A sixth manufacturer, Scania, did not settle the case and is still under investigation. Some factors, such as the amount of the fine and the duration and scope of the agreement, foreshadowed a large wave of damages claims, which is exactly what has come to happen. One of the largest of the published claims in terms of damages claimed (€2.5 billion) appears to be the one prepared by Spain’s Confederation for the Transport of Goods (CETM).68 The entity reported that its lawsuit would cover 150,000 haulage firms, which may have purchased more than 300,000 trucks during the cartel’s existence.69 An earlier report stated that the deadline to file the claim was on 19 July 2017.70 There appears to be no public information on whether the CETM met that date. In Germany, Deutsche Bahn (DB) and a litigation vehicle formed by the Federal Association for the Transport of Goods, Logistics, and Disposal (BGL) prepare claims of their own. DB is also looking to represent other claimants – 30 of the largest truck purchasers – in order to increase its chances of success.71 The amount that will be claimed is not specified in the reports. The BGL, on its part, has reportedly signed up to 1,300 companies so far and intends to sue for the loss suffered from the purchase of 40,000 trucks.72 The total damages claimed by this lawsuit could reach €1 billion.73 Another country where claims arising from the truck cartel are accumulating is the Netherlands. There, a litigation vehicle representing 3,000 firms has sued DAF and other non-specified truck manufacturers.74 In addition, other entities plan legal actions of their own: A legal insurance company has announced to team with Transport and Logistics Netherlands (TLN) in a damages claim that will reportedly cover the purchase of 80,000 trucks;75 and Cartel Damages Claims (CDC) has brought the claims of over 200 companies and has brought a claim against all five truck manufacturers that were part of last year’s settlement agreement with the European Commission.76 Other jurisdictions where legal actions have been filed or are being prepared include the UK and Italy. In the former, a French waste-management company, Veolia, has filed a follow-on claim. It is supposedly one of the biggest truck purchasers in Europe and the lawsuit includes around 15,000 vehicles and total damages of €200 million.77 The British Road Haulage Association (RHA) reportedly prepares its own legal action, which was expected to be filed later in 2017. The RHA reports to fund claims from member and non-member companies. It estimates the average overcharge at €6,829 per truck and calculates that around 650,000 were sold in the UK during the cartel period.78 A bakery chain and other unnamed potential claimants may join this claim.79 In Italy, around 2,900 firms are reported to have joined a claim led by the Italian association of transport firms (CAN Fita), which reportedly asks for €250 million in damages.80 Regarding damages claims from other cartel cases in the EU, as reported in our last survey, car and truck bearings manufacturers were setting aside financial resources to cover potential claims arising from a settlement decision by the European Commission that was issued in March 2014. Peugeot had already filed a claim in the UK in March 2016, which was settled in November that year with two of the defendants: Japan’s JTEKT Corporation and Sweden’s Schaeffler Group, leaving the claim against NSK Ltd, NSK Europe Ltd, NTN Corporation and AB SKF still standing.81 According to an announcement on 13 January 2017, BMW also reached a settlement with JTEKT for an undisclosed amount. The action included other defendants with which the action is still pending in the UK.82 Another update on follow-on claims based on this case is Daimler’s lawsuit, which was filed in Germany against the Swedish firm SKF. This was announced on 4 July 2017. The claim is reported to be for an amount of €59 million.83 Where claims regarding the car-glass cartel are concerned, a number of settlements were reached during the period covered by the present survey. In the UK, Peugeot reached an agreement with all defendants named in its complaint. The settlement was for an undisclosed amount.84 BMW and Rolls Royce, on their part, settled their claim against the Pilkington Group.85 Saab had earlier reached a settlement with the same company in September 2017.86 III. Restrictions in distribution and service networks A. Access to network claims/refusal to supply/market definition in aftermarkets Market definition in aftermarkets is a crucial issue, since it determines whether a firm qualifies for the applicable block exemption regulations – in the case of new vehicles, Reg. 330/2010 (Vertical Agreements Block Exemption), and for aftermarkets, Reg. 461/2010 (Motor Vehicle Block Exemption).87 A narrow definition may cause a company to exceed the 30 per cent market share threshold established in both regulations and thus to be excluded from the relevant block exemption.88 With that in mind, it is important to note some differences in the criteria applied by the European Commission and member states. As reported in last year’s survey, German courts favour an individual assessment leading in most cases to a broader market definition than the one applied by the European Commission.89 The latter is of the opinion that aftermarkets are (almost always) brand specific, i.e. that every car manufacturer will have a high share of the activities (certainly above 30 per cent) in spare parts markets and for repair and maintenance services of vehicles of its own brand.90 In a case in which a truck repairer was not supplied by the manufacturer the German Federal Supreme Court had held that the market was not brand specific.91 It has, however, clarified, that the market definition remains a case-by-case assessment and could or could not be brand specific. Only where the status as an authorised repairer would be essential for the independent repairer to provide repair services for cars of that brand, a brand specific market definition would be appropriate.92 The Court has remitted the case back to the second instance – the Higher Regional Court of Frankfurt – for the collection and assessments of the facts in case of a Jaguar dealer. It appears that the case is still pending at the Frankfurt Court. Spain’s CNMC held in a 13 October 2016 decision that the markets for spare parts and repair and maintenance service are brand specific and thus adhered to the European Commission’s criteria. The Spanish authority makes explicit reference to paragraph 15 of the supplementary guidelines of the Motor Vehicles Block Exemption93 and states that from both the demand and supply perspective there is no substitutability between parts and services of cars manufactured by different brands.94 The reorganisation of their distribution network can also cause problems for manufacturing firms if terminated dealers or service partners do not accept that they are no longer part of the authorised network. If, for example, a manufacturer wants to make use of the shorter 1-year termination which is still included in many contracts based on Reg. 1400/2002 (despite its expiry), they will have to show that the restructuring was necessary. National courts appear to rightly respect the economic freedom of undertakings to define and decide for themselves how they want to shape their distribution networks instead of placing their own economic judgement above that of the companies. When such restructuring takes place, distributors whose contracts are terminated therefore have to overcome a high hurdle when attempting to prove that they have been excluded from the market contrary to the former Art. 3 Reg. 1400/2002 rule. The same is true for ordinary terminations which will in only rare cases be invalid – i.e. if the manufacturer is dominant and would unjustly discriminate without reason against the applicant. Along these lines the Corte di Cassazione Civile in Italy held on 13 October 2016 that VW’s decision to reorganise the retail scheme of Audi cars in order to reposition the brand was a legitimate business decision.95 The applicant (Ballan Automobili) had argued that the reorganisation undertaken by VW violated articles 101 and 102 TFEU because it allegedly restrained intrabrand competition. The Corte di Cassazione rejected the appeal because it considered that the reorganisation had pro-competitive effects as it sought to strengthen the position of the Audi brand.96 In the Netherlands, the District Court of Oost-Brabant rightly held on 10 May 2017 that it is up to the company to decide its reasons for reorganising their networks and that it is not up to the courts to establish whether better options exist.97 The case concerned a reorganisation carried out by truck manufacturer DAF. The court rejected the terminated distributor’s (Tirsan) complaint because it considered that the reorganisation was indeed necessary (DAF had put forth as an argument a low market share) and because courts are ill-suited to identify whether less restrictive options (other than a reorganisation) exist.98 In France, the Paris Court of Appeals ruled on 24 May 2017, that FCA France breached its obligation to negotiate in good faith when choosing the members of its selective distribution system after a termination of all dealer contracts without providing a reasoning and by applying its selection criteria in a discriminatory way.99 FCA France had acquired Chrysler France’s business in 2010 after which it decided to terminate all distribution agreements, effective as of May 2011. It then invited all dealers to apply for admittance to its selective distribution network. Following the rejection of its application the claimant sued FCA France for damages.100 The appeals court reversed the first instance judgement which had rejected the dealer’s claim. The Paris Court of Appeals agreed that refusing to select a given candidate as an authorised distributor in a selective network did not constitute a ‘hard-core’ restriction on competition and was exempted under EU block exemption regulation no. 1400/2002 on motor vehicle distribution, which was in effect at the time. However, the Court considered that FCA France had breached its obligation to negotiate in good faith. According to the Court of Appeals FCA France should have justified its refusal to authorise the car dealership as a distributor based on the criteria it had established itself, and by providing details and figures to support its decision.101 Furthermore, it appeared that FCA France had accepted an applicant which did not fulfil the criteria and had thereby applied its selection criteria in a discriminatory way. The dealer was awarded damages in the amount of 250,000 EUR. Another issue that may arise from vertical agreements in the auto industry is that of (apparent) conflicts between EU competition law and national contract law. In France, the Cour de Cassation (highest court in civil law matters) ruled that the block exemptions do not exempt the company from following the country’s civil law regulations on distribution agreements.102 In that case, BMW France terminated an agreement with a local distributor, Taurisson. The latter argued that the manufacturer’s subsidiary had not complied with the contractual notice period and that it was therefore entitled to damages. BMW, on its part, argued that the Motor Vehicles Block Exemption Regulation (MVBER) precluded any finding of liability since the necessary notice period as stipulated in the MVBER had been observed. The court did not agree. It argued that even if a company is exempted from the application of competition law it still had to comply with the relevant provisions of French contract law.103 This finding itself is not too surprising, as Block Exemption Regulations are not cogent European law that would prescribe a company's behaviour. They simply offer companies a possibility to have their agreements block exempted from Art. 101 (1) TFEU which they may chose to follow or not. However, if the national contract rule would effectively restrict the undertakings in making use of the block exemption, the effect utile may require to overrule the national contract law. B. Resale price maintenance and customer restrictions On 8 November 2016, the Danish competition authority imposed a fine of €1.1 million on Opel Denmark for resale price maintenance. The subsidiary was found to have prohibited dealers in the country to sell cars below an agreed minimum price. The practice allegedly lasted from the middle of 2010 to February 2014. The company itself raised the issue before the authority and has agreed to a compliance programme, which was taken into account when calculating the fine.104 In Bulgaria, toward the end of 2016, the first instance panel of the Bulgarian Supreme Administrative Court affirmed a decision of the competition authority in which it imposed one of its highest fines ever (more than €8 million) on Hyundai.105 The conduct in question consisted of resale price maintenance, exclusive agreements (from the supply side), prohibition of cross sales within the selective distribution system and prohibition of active sales outside the territory assigned to each dealer.106 The decision is now subject to appeal before a second-instance five-member panel of the same Supreme Administrative Court.107 Regarding two cases reported last year, one in which Switzerland’s Supreme Court has to decide whether to uphold a fine imposed on BMW for restricting parallel imports and another in which the Greek competition authority was investigating Nissan for resale price maintenance,108 there are no recent updates. The Swiss court’s decision is still pending109 and the Greek agency is still considering whether to accept Nissan’s commitments. In Turkey, the competition authority announced in June 2017 that it has opened an investigation into auto firm Karsan’s alleged resale price maintenance and passive sales restriction policies.110 C. Restrictions of online sales On 26 July 2017, Advocate General (AG) Nils Wahl delivered his opinion to the ECJ in a case regarding restrictions on third-party online platform sales.111 The case concerns a request for a preliminary ruling in the context of a dispute between a perfume supplier and its distributor. Although the case does not arise from the auto industry, its final decision will have an impact on distribution schemes that limit online sales. The object of the dispute is a prohibition to resell through unauthorised internet platforms.112 In the request, the Higher Regional Court of Frankfurt asked the ECJ whether preserving the image of a brand is a valid justification for such a ban in the framework of a selective distribution agreement and whether the ban amounts to a restriction by object.113The German Federal Cartel Office advocates that such bans will often be illegal and German Courts have not found a uniform approach to this question yet. AG Wahl’s opinion, in essence, states that brand image preservation can indeed be a legitimate reason for setting up a selective distribution system and to limit sales of its authorised dealers via online platforms if the restrictions do not amount to an outright ban of internet sales, as was the case in the ECJ’s Pierre Fabre judgement.114 As such, the AG argued that the prohibition at issue in the case cannot be considered as a restriction by object.115 It still remains to be seen what the Court’s position will be. In the UK, as was reported last year, there was a complaint regarding alleged restrictions that BMW had imposed on dealers to cooperate with car (price) comparison websites.116 The CMA decided not to open a formal investigation after BMW committed to change the policies that were the subject matter of the complaint.117 D. After sales/warranty clauses In the after-sales market competition authorities have continued118 to monitor warranty clauses. The authorities fear could impact competition in the after-sales market by causing customers to have regular maintenance only undertaken in authorised repair shops during the warranty period for fear of losing their warranty rights. In Latvia, the Regional Administrative Court confirmed a fine imposed on KIA. The case involved said warranty clauses according to which customers could no longer benefit from certain aspects of the warranty if they obtained repair services and spare parts from independent repair shops and manufacturers during the warranty period. The announcement was made in March of 2017. The fine amounted to €0.13 million.119 At the time of the announcement, the ruling could still be appealed before the Latvian Supreme Court.120 In Slovakia, the authority decided on June 2017 to close a probe regarding warranty clauses of several car manufacturers. The investigated companies offered commitments to allow car owners to obtain repair services from independent mechanics within the warranty period without losing the warranty. The names of the firms involved in the probe were not disclosed.121 The Serbian authority carried out advocacy efforts of its own. In November 2016, it published a report on after-sales services for motor vehicles and home appliances.122 One of its proposals was to conduct a survey of prices and costs of car maintenance and repair services and to publish the results in order to give consumers more information.123 IV. Merger control During the period covered by the present survey, the European Commission and the UK CMA dealt with a number of transactions of car manufacturers, auto parts suppliers and vehicle repair data platforms. The European Commission reviewed and approved two mergers between car manufacturers. In both cases, the European Commission took a favourable view of the prevailing competition conditions. One of these transactions involved the purchase of a controlling stake in Mitsubishi by Nissan. The EC considered that the overlaps in the EEA were not substantial and that the remaining players exert sufficient competitive pressure.124 The other transaction was PSA’s acquisition of Opel from GM. The deal was also cleared without conditions because the parties’ combined market shares were regarded as moderate (20–30 per cent) – with some exceptions (in particular some segments in France and in some countries’ SUV subsegment(s)). In addition to the combined market shares, the European Commission also considered the change in market share as well as the existence of sufficient competition – and took into account whether the two brands were (too) close substitutes.125 In conclusion, the resulting market structure would still leave enough important competitors to dissipate potential competition concerns.126 The European Commission again could leave the exact market definition open – because the transaction did not raise concerns even under the narrowest market definition. It is still of interest that the European Commission looked at and discussed alternatives to its prior practice. While the European Commission confirmed that the manufacturing of passenger cars and that of commercial vehicles would certainly form separate markets,127 it analysed, whether the segmentation used in past decisions (mini cars, small cars, medium cars, larges cars, executive cars, luxury cars, sport cars, sport utility vehicles, and multipurpose vehicles) would still hold or whether a further segmentation might be necessary. In particular, it reports that market testing did not provide clear results as to whether the SUV market should be further subsegmented into three categories. Furthermore, the European Commission market-tested whether electric and hybrid vehicles would form separate markets – again without being able to confirm either option based on the responses from the market. While the parties had held that there is an EEA-wide market, the European Commission was of the opinion that remaining differences in pricing and emission control rules still pointed more to national markets. The European Commission furthermore looked at the markets for wholesale distribution of vehicles and confirmed its practice that the markets for wholesale distribution of passenger cars and commercial vehicles should not be further subsegmented and are national in scope. The European Commission has also been active in the area of mergers in auto parts markets. On 4 October 2016, it announced that it had cleared Wabtec’s acquisition of Faiveley Transport subject to commitments. The European Commission was concerned that the transaction would eliminate one of only three strong competitors in the after-market for sintered train friction brake materials. To address the European Commission’s concerns, the parties agreed to divest Faiveley Transport’s sintered friction material business.128 The European Commission initially had raised concerns in other markets as well (brake systems and pantographs), which were later dropped as a result of the in-depth investigation.129 The European Commission had referred the proposed acquisition of Haldex by Knorr-Bremse to phase II for an in-depth review.130 The European Commission had voiced concerns that the market is already highly concentrated and the transaction would remove a significant player. In addition, the European Commission considered that the market has high entry barriers due to regulatory requirements of the products and the need to invest substantial amounts of capital in research and development.131 The parties had submitted commitments but these were considered insufficient to address the European Commission’s concerns.132 The geographical scope of the parties’ economic activities had prompted the EC to coordinate its efforts with the U.S. Department of Justice.133 In the meantime, the notification has been withdrawn because the transaction has been abandoned. In the UK, the Competition and Markets Authority (CMA) opened an in-depth investigation in the acquisition of car parts supplier Andrew Page by Euro Car Parts on 22 May 2017. The authority was worried that the deal would reduce competition in a number of local areas as well as for large customers.134 The CMA also reviewed a transaction in the vehicle repair and maintenance data market. The merging parties, Solera and Autodata, were close competitors in the UK and had proposed to divest the former’s repair and maintenance information platform in this jurisdiction.135 On 21 September 2017, the CMA has conditionally cleared the deal by accepting Solera’s remedy to sell its vehicle repair and maintenance information platform, E3 Technical, to approved buyer HaynesPro.136 V. Access to technical information In our 2016 report137 we informed about the recent proceedings in Germany initiated by the members of the industry association of independent parts traders in Germany (Gesamtverband Autoteile Handel, ‘GVA’). At that time the first instance decision of the District Court of Frankfurt regarding the interpretation of Regulation 715/2007138 which had partly granted the claim was under appeal. In the meantime, the Higher Regional Court of Frankfurt has decided on the appeal and fully rejected GVA’s claim.139 GVA had requested the court to order KIA to provide access not only to the technical information via a (simple) web-based search (as KIA provided) but also to the underlying data (raw data) allowing for automatic data processing. While the District Court of Frankfurt held that KIA is not obliged to provide access to the underlying database as a whole, it still found that the provision of a web-based search engine was not sufficient either. It decided that KIA had to provide the information in a format allowing automatic data processing. This ruling appeared both legally as well as technically questionable (cf. our 2016 report). It was even substantially unclear from a technical point of view what type of data exactly a manufacturer would have to supply in order to comply with Reg. 715/20107 according to this ruling. The Higher Regional Court of Frankfurt appears to have correctly analysed the technical backgrounds and legal correlations of the relevant provisions. The Higher Regional Court ruled that the preconditions of Art. 6 para. 1 of Regulation 715/2007, which stipulates the obligation of OEMs to grant unrestricted and standardised access through websites using a standardised format in a readily accessible and prompt manner are fulfilled by granting access via web-based search engines. The recitals of the Regulation as well as its aim and history show that access to the raw data via a database interface allowing for automatic processing of the full content of the database is not required. The Court emphasised inter alia that the notion ‘raw data’ had been explicitly deleted from the Regulation’s wording during the legislative procedure. According to the Court, the relevant provisions solely aim to grant access at all. They specify the data that must be accessible, however, do not specify the way access must be granted. In this regard, the Court also correctly held that standardised formats for data exchange via database interfaces have not yet been developed as stated in Recital 18 of Regulation No 566/2011. In contrast to the view of the District Court, the OASIS format referred to in Article 6 of Regulation No 715/2007 does not provide a format for data exchange but for the data itself and its aggregation. Thus, the second instance ruling of the Higher Regional Court of Frankfurt comes to the conclusion that a manufacturer fulfils its obligations under Art. 6 para. 1 of Regulation 715/2007 by granting a read-only access to the technical information on its website. The case is, however, now pending at the Federal Supreme Court for revision.140 The Higher Regional Court decided on the matter without a referral to the ECJ, however, it could be referred to the ECJ for the interpretation of the relevant regulations by the Federal Supreme Court as it is the court of last instance. With regard to the second proceeding initiated by the GVA mentioned in our 2016 report – the complaint to the European Commission against the conduct of the Irish type approval authority – the European Commission appears to have closed the investigation. Additionally, on 9 December 2016, the European Commission issued its report on the operation of the system of access to vehicle repair and maintenance information (‘RMI’, ‘Report on RMI’).141 This report is mainly based on the European Commission’s 2014 RMI-study.142 In general, the European Commission concludes that the level of compliance with the RMI Regulations (in particular Regulation 715/2007 and 566/2011) has improved over the past few years as OEMs had put considerable effort into ensuring that their systems provide the required information in compliance with the RMI Regulations. The European Commission furthermore assumes that most of the issues related to access to technical information will be resolved by the introduction of the new CEN/ISO standards143 providing a standardised format for RMI delivered via OEMs’ websites. However, the European Commission also finds that some difficulties still remain. The European Commission considers that there are still challenges for repairers to access RMI directly from OEM websites among others due to a wide variation in user interfaces and software incompatibilities as well as different interpretations of the wordings of the RMI Regulations such as ‘standardised format’, ‘readily accessible’ and ‘in a prompt manner’.144 In this regard, the European Commission concludes that a legislative review of the principle of ‘unrestricted and standardised access in a non-discriminatory manner’ should be conducted as well as the legislative introduction of access to information on data on vehicle parts, as identified by the VIN and through a common structured process.145 As the European Commission obviously assumes that a legislative improvement is necessary also with regard to the latter, it may be concluded that up to date (including the introduction of the new CEN/ISO standards) there is no legally binding commonly structured process for exchanging data on vehicle parts which can be replaced by spare parts, as identified by the VIN. Thus, the ruling of the German Higher Regional Court of Frankfurt mentioned above, stating that there is no actual obligation of OEMs to grant access to the ‘raw data’ via a database interface allowing for automatic data processing appears to be correct also from the European Commission’s point of view.146 It remains to be seen, whether such a common structured process for exchanging RMI will be included in the RMI Regulations in case of their future revision. This does, however, not necessarily mean that access to raw data must be provided. VI. Legislative and regulatory developments There are some important legislative developments directly impacting the automotive industry to report. In Switzerland, a popular initiative for amendments to the Federal Constitution and Competition law was launched on 31 August 2016, which qualifies to be voted on if 100,000 signatures support the initiative by 20 March 2018.147 This would be the first time that the population could directly vote on competition law issues. Important aspects of the amendments include:148 The initiative aims to introduce the concept of relative dominance (i.e., ‘dominance’ of an undertaking that results from the dependency of other purchasing undertakings, while their dependency is based on the lack of reasonable possibilities to switch to other suppliers) in supplier–buyer relations and to prohibit unjustified price discrimination (that is, differences that have an anticompetitive goal and lead to distortions of competition). Relative-dominant firms would only be subject to injunctions of the practice but not to fines. Private damages claims would however be possible. This change may in particular impact the leeway to shape the distribution as well as repairer networks. Only products manufactured in Switzerland would be allowed to be burdened with re-import restrictions. In Turkey, a new block exemption Communiqué for the motor vehicle industry entered into force on 24 February 2017 (Communiqué 2017/3).149 Important changes that have been pointed out with respect to the previous regulations are:150 The market share threshold for a quantitative selective system to be exempted has been reduced from 40 to 30 per cent (Art. 5 (1) a) of the Communiqué 2017/03. For distribution of motor vehicles, direct non-compete obligations can now be imposed on buyers for up to five years, but cannot extend beyond the term of the agreement (Art. 7 (1) a) of the Communiqué 2017/03. Also in the case of motor vehicles distribution, for a clause to be considered an indirect non-compete obligation, the minimum requirements percentage was increased from 30 to 80 per cent (Art. 4 (1) k) of the Communiqué 2017/3. The definition of equivalent spare parts has been clarified (Art. 4 (1) f) of the Communiqué 2017/3. VII. Connected cars Recently the topic of connected cars has been made a subject of discussion by interested parties also from a competition law perspective.151 It is also in particular discussed whether the generated data in this regard constitutes technical information in the sense of the RMI-Regulations (regularly probably not). However, due to the novelty of the technology, actually, there are no cases to present. Furthermore, aspects of data protection, liability and intellectual property may appear more likely to govern the discussions around connected cars in future. Nevertheless, a lot is in progress with regard to connected and autonomous vehicles so that we can expect further discussions and legal developments in the following years. VIII. Other antitrust developments One important development during the period covered by the present survey was the publication of the Swiss Federal Court’s reasoning in its Gaba/Gebro decision.152 The case concerned a manufacturing and distribution agreement of toothpaste in which Gebro was forbidden to export out of Austria. The court held that for a conduct to fall within the scope of the Swiss competition law it is not necessary to observe actual effects but only that the behaviour has the potential to have an impact on Swiss territory.153 The court also ruled that restrictions by object automatically fulfil the significance-of-effects test.154 The decision will have important implications for distribution agreements in the motor vehicle industry since it makes international conduct more susceptible to be challenged under Swiss competition law – irrespective of whether such conduct has actual effects in Switzerland. In June 2017, Arkema, a French company, announced that it had filed a complaint before the European Commission against Honeywell for abuse of dominance.155 The alleged anticompetitive conduct is related to Honeywell’s patent on a component of car refrigerants, a market that the complainant wishes to enter. On 10 May 2017, the Hungarian competition authority published a market study on the domestic car retail, repair, and related insurance services markets.156 In the study, the authority concluded that there was no need for follow-up enforcement actions but did issue policy recommendations. These include a proposal to the Ministry for the Economy to reintroduce concentrated campaign periods for switching insurers in order to stimulate competition.157 In October 2016, the Portuguese Competition, Regulation, and Supervision Tribunal upheld a fine of €150,000 imposed on Peugeot for providing inaccurate information in an antitrust probe.158 The fine had been imposed by Portugal’s antitrust agency in June 2015 and it is said to be the first of its kind.159 Finally, the Swedish competition authority announced on June 2017 that it closed an investigation into a tying agreement in which Blocket – a Swedish platform for car and residences listings and job postings – required car dealers to advertise also on Byt Bil Nordic – an internet platform for reselling cars.160 The investigation was closed after the firms confirmed that the tying arrangement was no longer used and both products were now being sold separately.161 IX. Final remarks There is a clear pattern around the world to make the auto industry an important focus of enforcement efforts. Europe – both inside and outside the EU – is no exception. News about fines, opened investigations, and raids have become a constant – although the wave of new investigations in the parts supplier industry appears to have clearly overcome its high peak. A few common threads between the cases can be outlined. Leniency applications have been pivotal in uncovering cartels. Settlement agreements are also widespread, with few notable exceptions, such as Scania in the truck manufacturer’s cartel investigation. The final decisions on horizontal behaviour cases have given rise to a significant amount of damages claims, which is a trend that will most likely continue in the future. The deadline to implement the damages directive in the EU expired on 27 December 2016. Only a handful of countries have not communicated its transposition. This will most likely change the landscape of damages claims in years to come. Regarding aftermarkets and distribution and service networks, there are differences in the scope of the relevant product markets between both the national authorities and with respect to the European Commission’s criteria. As described in Section III.A., the CNMC in Spain held in 2016 that the relevant product market in access to spare parts distribution and service networks is brand specific, agreeing with the European Commission. In Germany, on the other hand, the Federal Supreme Court has established that this is not necessarily the case and that the plaintiff has to prove first that the spare parts distributor/service provider has an essential need for the manufacturer’s input. Developments in this area will continue to be crucial to the industry, since it will determine an agreement’s compatibility with the block exemptions in the EU. Where merger control is concerned, one can identify a favourable stance of the European Commission regarding mergers and acquisitions between car manufacturers. In both transactions cleared during the period covered by the present survey, the European Commission considered that the existence of important players in the market exerts sufficient competitive pressure. The same cannot be said for at least some transactions in auto components and aftermarkets. Both the European Commission and the CMA in the UK have required in-depth investigations of transactions or divestiture commitments to grant clearance because of the higher concentration levels observed. Footnotes 1 Anne C. Wegner, Sophie Oberhammer, and Almuth Berger, ‘Recent Competition Law Developments in the Automotive Industry’ (2016) Journal of European Competition Law and Practice, pp. 696–710. 2 Please note that the survey includes highlight cases only and does not pretend to provide a complete reporting of all developments, decisions, investigations that may have taken place. 3 Case 101/15 Pilkington Group and others v Commission (ECJ, 7 September 2016). 4 Cf. Wegner/Oberhammer/Berger (n 1), pp. 696–710, 698. 5 Pilkington (n 1) paras. 11, 26, 54, and 58. 6 ibid para. 22. 7 ibid para. 38. 8 ibid para. 66. 9 European Commission, ‘Antitrust: Commission fines three companies €68 million for car battery recycling cartel’ (Brussels, 8 February 2017) accessed 11 August 2017, Case AT.40018. 10 ibid. 11 ibid. 12 ibid. 13 ‘Eco-Bat appeals amended scrap battery purchasing cartel decision’ PaRR (Brussels, 14 June 2017) accessed 11 August 2017; ‘Recylex appeal in EC purchasing battery cartel published’ PaRR (19 June 2017) accessed 11 August 2017; ‘Campine car battery cartel fine appeal published’ PaRR (26 June 2017) accessed 11 August 2017. 14 European Commission, ‘Antitrust: Commission fines three car lighting system producers €27 million in cartel settlement’ (Brussels, 21 June 2017) accessed 14 August 2017. 15 ibid. 16 ibid. 17 ibid. 18 ibid. 19 European Commission, ‘Antitrust: Commission fines six car air conditioning and engine cooling suppliers € 155 million in cartel settlement’ (Brussels, 8 March 2017) accessed 11 August 2017, Case AT.39960. The duration of each of the infringements can be consulted in the table provided by the Commission. 20 ibid. 21 ibid. 22 ibid. 23 ibid. 24 ‘EC fines air conditioning suppliers EUR 155 m for four cartels’ PaRR (8 March 2017) accessed 14 August 2017. 25 ‘EC raids German car door lock manufacturer – report (translated)’ PaRR (6 September 2016) accessed 14 August 2017. 26 European Commission, ‘Antitrust: Commission confirms investigation into suspected cartel in the sector of seatbelts, airbags and steering wheels’ (Brussels, 9 June 2011) accessed 14 August 2017. 27 ‘EC could fine Continental EUR 100 m in brakes probe – report’ PaRR (28 October 2016) accessed 14 August 2017. 28 Continental AG, ‘Continental Changes Outlook for Fiscal 2016’ (17 October 2016) accessed 14 August 2017. 29 ‘Continental AG expects news soon on EC probe’ PaRR (25 March 2015) accessed 14 August 2017. 30 ‘EC closes antitrust probe into automotive exhaust systems’ PaRR (Brussels, 28 April 2017) accessed 14 August 2017. 31 Special thanks to Helmut Brokelmann from Martínez Lage, Allendesalazar & Brokelmann for his overview provided during the KNect365 Conference in Brussels on 13 June 2017. 32 Comisión Nacional de los Mercados y la Competencia, ‘La CNMC incoa expediente sancionador contra cinco empresas por posibles prácticas restrictivas de la competencia en el mercado de baterías usadas’ (Madrid, 30 January 2017) accessed 14 August 2017. 33 ibid. 34 ‘Spain drops cartel probe into auto car parts’ PaRR (22 May 2017) accessed 14 August 2017. 35 Bundeskartellamt, ‘Bundeskartellamt imposes fines on automotive part manufacturers’ (Bonn, 13 July 2017) accessed 14 August 2017. 36 ibid. 37 ‘German car heat shield cartel saw two leniency fine reductions’ PaRR (18 August 2017) accessed 21 August 2017. 38 ibid. 39 Wegner, Oberhammer, and Berger (n 1), p. 699. 40 ‘Germany raids car companies over suspected steel purchase cartel’ PaRR (5 July 2016) accessed 14 August 2017. 41 ‘Hungarian car battery cartel: firm claims agency misused settlement procedure’ PaRR (Budapest, 7 February 2017) accessed 22 August 2017. 42 ibid. 43 DER SPIEGEL 30/2017. 44 ibid. 45 Max Hägler, ‘Bosch war wohl Gast bei geheimen Autotreffen’ Süddeutsche Zeitung (28 July 2017) accessed 16 August 2017. 46 See last year’s (n 1), under III. and IV. 47 Resolución de la Sala de Competencia del Consejo de la CNMC de 12 de Julio de 2016 en el Expdte. S/0506/14 Concesionarios VOLVO 87. 48 ibid 93. 49 ibid 15–16. 50 ibid 16. 51 ibid 93. 52 Resolución de la Sala de Competencia del Consejo de la CNMC de 28 de Julio de 2016 en el Expdte. SAMAD/09/2014 Concesionarios NISSAN 15. 53 ibid 72. 54 ibid. 55 ibid 72. 56 ‘Czech officials fine car dealers for bid rigging’ PaRR (4 July 2017) accessed 16 August 2017. 57 ibid. 58 ibid. 59 ‘Romanian agency raids car dealers over alleged price-fixing – report (translated)’ PaRR (29 March 2017) accessed 16 August 2017. 60 ibid. 61 ‘EC raids Ireland’s motor insurance sector’ PaRR (4 July 2017) accessed 17 August 2017. 62 ‘Italy opens price signalling probe into motor insurance providers’ PaRR (16 December 2016) accessed 21 August 2017. 63 ‘Italy probes car manufacturers’ captive banks’ PaRR (15 May 2017) accessed 21 August 2017. 64 ibid. 65 AGCM, provvedimento del 30 marzo 2017, Mercato del noleggio autoveicoli a lungo termine, in Bollettino n. 14/2017 para. 98. 66 ‘Turkey drops car insurance collusion probe’ PaRR (25 July 2017) accessed 21 August 2017. 67 Wegner, Oberhammer, and Berger (n 1) 699. 68 Hugo Gutiérrez, ‘Los transportistas reclaman miles de millones a la industria del camión’ El País (Madrid, 5 June 2017) accessed 17 August 2017. 69 ibid. 70 Mercedes Serraller, ‘El 19 de julio acaba el plazo para reclamar por el cártel de los camiones’ (Madrid, 19 June 2017) accessed 17 August 2017. 71 ‘Deutsche Bahn looks to represent other claimants in truck cartel damages claim (translated)’ PaRR (4 August 2017) accessed 17 August 2017. 72 Csilla Hevesi-Toth, ‘German truck damages vehicle signs up 1,300 hauliers’ PaRR (Budapest, 13 July 2017) accessed 17 August 2017. 73 ibid. 74 ‘https://app.parr-global.com/intelligence/view/1547026?src_alert_id=99283’ PaRR (13 July 2017) accessed 17 August 2017. 75 ‘Dutch legal insurance firm backs truck cartel damages claim’ PaRR (13 June 2017) accessed 17 August 2017. 76 ‘CDC files Dutch truck cartel damages claim’ PaRR (2 August 2017) accessed 17 August 2017. 77 ‘Veolia files truck cartel damages claim in UK High Court’ PaRR (Brussels, 6 July 2017) accessed 17 August 2017. 78 ‘UK trade body’s truck cartel damages claim to be issued later this year’ PaRR (London, 19 June 2017) accessed 17 August 2017. 79 ‘UK bakery chain may join truck damages cartel – report’ PaRR (17 August 2017) accessed 17 August 2017. 80 ‘Italian transport association seeks EUR 250 m in EU truck cartel damages’ PaRR (5 May 2017) accessed 17 August 2017. 81 ‘Peugeot settles auto ball bearings claim against JTEKT Corporation in UK’ PaRR (29 November 2016) accessed 17 August 2017. 82 ‘BMW settled with JTEKT over EC auto bearings cartel damages High Court claim’ PaRR (London, 13 January 2017) accessed 17 August 2017. 83 ‘Daimler sues SKF for EUR 59 m in Germany over EC bearings cartel’ PaRR (4 July 2017) accessed August 2017. 84 ‘Peugeot-Citroen settles Pilkington, Asahi car glass claim at CAT’ PaRR (London, 11 January 2011) accessed 17 August 2017. 85 ‘BMW, Rolls-Royce withdraw car-glass cartel damages claim against Pilkington after CAT decision’ PaRR (17 October 2016) accessed 17 August 2017. 86 ‘Saab withdraws car-glass damages claim against Pilkington at CAT’ PaRR (9 September 2017) accessed 17 August 2017. 87 Commission Regulation (EU) 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices [2010] OJ L102/1; and Commission Regulation (EU) 461/2010 of 27 May 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector [2010] OJ L129/52. 88 Art. 3 of the Vertical Agreements Block Exemption and Art. 4 of the Motor Vehicle Block Exemption. 89 Wegner, Oberhammer, and Berger (n 1) 701. 90 Commission Notice Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the distribution of spare parts of motor vehicles [2010] OJ C138/16 para. 15. 91 BGH, Urteil vom 30. März 2011 – KZR 6/09. 92 BGH, Urteil vom 26. Januar 2016 – KZR 41/14. 93 Resolución de la Sala de Competencia del Consejo de la CNMC de 13 de Octubre de 2016 en el Expte. S/DC/0556/15, GENERAL MOTORS/OPEL 4–6; special thanks to Helmut Brokelmann from Martínez Lage, Allendesalazar & Brokelmann for his overview provided during the KNect365 Conference in Brussels on 13 June 2017. 94 ibid. 95 Corte di Cassazione Civile Sent. Sez. 1 Num. 20688 13 ottobre 2016 Fallimento BALDAN AUTOMOBILI Srl v VOLKSWAGEN GROUP ITALIA Spa; special thanks to Walter van Overbeek from Houthoff Buruma for his overview of the case provided during the KNect365 Conference in Brussels on 13 June 2017. 96 ibid. 97 Op grond van de uitspraak van de Rechtbank Oost-Brabant van 10 mei 2017 in de zaak DAF Trucks/Tirsan para. 5.11.5; special thanks to Walter van Overbeek from Houthoff Buruma for his overview provided during the KNect365 Conference in Brussels on 13 June 2017. 98 ibid. 99 Cour d’appel de Paris, Pôle 5 – chambre 4, 24 May 2017, no. 15/12129, special thanks to Walter van Overbeek from Houthoff Buruma for his overview of the case provided during the KNect365 Conference in Brussels on 13 June 2017. 100 ibid. 101 Kathie Claret, François-Xavier Mirza and Emmanuelle Mercier, ‘Selective Distribution: General Contract Law to the Rescue of Rejected Distributor’ (12 July 2017) accessed 5 September 2017; 102 Cour de cassation, civile, Chambre commerciale, 5 juillet 2016, 15­17.004, Publié au bulletin. 103 ibid. 104 ‘Danish auto dealer fined EUR 1.1 m for RPM’ PaRR (8 November 2016) accessed 21 August 2017. 105 ‘The Bulgarian Supreme Administrative Court confirms a fine of over 8 million euros for several hard-core vertical restrictions (Hyundai)’ (2016) e-Competitions Bulletin accessed 21 August 2017. 106 ibid. 107 ibid. 108 Wegner, Oberhammer, and Berger (n 1), pp. 700 and 704. 109 Special thanks to David Mamane, LL.M. (Bruges) for the update provided during the KNect365 Conference in Brussels on 13 June 2016. 110 ‘Turkey probes auto firm Karsan over RPM’ PaRR (23 June 2017) accessed 21 August 2017. 111 Case 230/16 Coty Germany v Parfümerie Akzente (26 July 2017) Opinion of AG Wahl. 112 ibid paras. 2–4. 113 ibid para. 5. 114 ibid para. 78. 115 ibid paras. 43–46 and 78. 116 Wegner, Oberhammer, and Berger (n 1) 705. 117 ‘UK CMA will not investigate BMW over online sales policy’ PaRR (24 January 2017) accessed 21 August 2017. 118 Wegner, Oberhammer, and Berger (n 1), 705. 119 ‘Latvian court upholds KIA Auto fines’ PaRR (17 March 2017) accessed 21 August 2017. 120 ibid. 121 ‘Slovak agency closes second car warranty case with commitments’ PaRR (22 June 2017) 122 ‘Serbian report recommends price study on vehicle aftermarkets’ PaRR (16 November 2016) accessed 22 August 2017. 123 ibid. 124 Nissan/Mitsubishi (Case M.8099) Commission Decision 6503/2016/EEA [2016] OJ C145/1. 125 ibid paras. 80, 129, 157, 172, 260, 307, 389. 126 Peugeot/Opel (Case M.8449) Commission Decision 4857/2017/EEA [2017] OJ C145/1 paras. 414–424;. 127 ibid paras. 15 and 27. 128 European Commission, ‘Mergers: Commission approves acquisition of Faiveley by Wabtec, subject to conditions’ (Brussels, 4 October 2016) accessed 21 August 2017. 129 ibid. 130 European Commission, ‘Mergers: Commission opens in-depth investigation into Knorr-Bremse’s proposed take-over of competing brakes manufacturer Haldex’ (Brussels, 24 July 2017) accessed 21 August 2017. 131 ibid. 132 ibid. 133 ibid. 134 ‘UK CMA opens in-depth review of car parts tie-up’ PaRR (22 May 2017) accessed 21 August 2017. 135 Competition and Markets Authority decision of 6 July 2017 case ME/6670-17 Completed acquisition by Solera Holdings, Inc. of Autodata Publishing Group Limited paras. 6–11. 136 ‘UK CMA clears vehicle data platform deal’ PaRR (21 September 2017) accessed 8 November 2017. 137 Cf. Wegner/Oberhammer/Berger, (n 1), pp. 707–709. 138 District Court of Frankfurt am Main, judgement of 21 January 2016, 2-03 O 505/13. 139 Higher Regional Court of Frankfurt, judgement of 23 February 2017, 6 U 31/16, 6 U 37/16, BB 2017,705. 140 Federal Supreme Court, I ZR 41/17 – still pending. 141 EU-Commission, Report on the operation of the system of access to vehicle repair and maintenance information established by Regulation (EC) No 715/2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information as of 9 December 2016. 142 EU-Commission, Study on the operation of the system of access to vehicle repair and maintenance information as of 26 November 2014. 143 Parts 1 to 4 of ISO 18541 on Road vehicles – Standardised access to RMI. 144 The Commission also considers areas of improvement outside the scope of the RMI Regulations within the relevant contractual relationships, such as the establishment of fee levels, guidelines for contracting between OEMs and specialist intermediaries, guidance on practical and mutually-acceptable contract negotiation practices (cancellation and territorial clauses, appropriate fees that can be charged, appropriate metrics on which to base the fees), best practices for timescales required to negotiate contracts and reach agreements as well as contractual clauses to ensure adequate protection and use of data. 145 The EU-Commission additionally identifies further areas for legislative improvement: clarification of ‘security related’ or ‘safety related’ information as well as complaints procedure before the type-approval authorities. 146 Higher Regional Court of Frankfurt, judgement of February 23, 2017, 6 U 31/16, 6 U 37/16, BB 2017,205. 147 Amalie Wijesundera and David Mamane, ‘Price neutrality and democratisation of competition law’ International Law Office (22 December 2016) accessed 22 August 2017. 148 ibid. 149 Rekebt Kurumu, Motorlu Taşıtlar Sektöründeki Dikey Anlaşmalara İlişkin Grup Muafiyeti Tebliği (Tebliğ No: 2017/3), 24.2.2017 tarih 29989 sayılı Resmi Gazetede yayınlanarak yürürlüğe giren. (Block Exemption Communiqué on Vertical Agreements in the Motor Vehicles Sector) English version available at accessed 22 August 2017. 150 Bora İkiler, ‘Turkey Overhauls Block Exemption for Vertical Agreements the Motor Vehicle Sector’ Mondaq (2 March 2017) accessed 22 August 2017. 151 Cf. also German Federal Ministry of Transport and Digital Infrastructure, ‘Eigentumsordnung’ für Mobilitätsdaten? - Eine Studie aus technischer, ökonomischer und rechtlicher Perspektive ('System of ownership' for mobility data? – A study from a technical, economical and legal point of view), considering creation of exclusivity and withholding of mobility data against the background of abuse of dominance. 152 Decision of the Bundesverwaltungsgericht, 2C_180/2014 as of 28 June 2016. 153 Ibid E. 3.7. 154 ibid E. 5.4.2. 155 ‘Arkema files EC abuse complaint over car refrigerant patents’ PaRR (5 June 2017) accessed 22 August 2017. 156 ‘Hungarian agency finds no need for enforcement after car industry study’ PaRR (11 May 2017) accessed 22 August 2017. 157 ibid. 158 ‘Portuguese court backs Peugeot’s fine for providing false information’ PaRR (20 October 2016) accessed 22 August 2017. 159 ibid. 160 ‘Swedish agency closes online car advertising probe’ PaRR (20 June 2017) accessed 22 August 2017. 161 ibid. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) TI - Competition Law in the Automotive Industry in Europe: A Survey of Recent Developments JF - Journal of European Competition Law & Practice DO - 10.1093/jeclap/lpy017 DA - 2018-04-01 UR - https://www.deepdyve.com/lp/oxford-university-press/competition-law-in-the-automotive-industry-in-europe-a-survey-of-fTItllfw9h SP - 267 EP - 281 VL - 9 IS - 4 DP - DeepDyve ER -