Extension of the EU’s Motor Vehicle Block Exemption Regulation and adjustment of the Guidelines for the motor vehicle sector

On 17 April 2023, the European Commission extended the Motor Vehicle Block Exemption Regulation (the “MVBER”), which is actually due to expire on 31 May 2023, for another five years.

The European Commission continues to consider the MVBER an effective tool for ensuring that vertical agreements in the automotive sector comply with EU competition rules. This is because, in the Commission’s view, the competitive situation in the motor vehicle sector has not changed significantly since its last evaluation in 2010.

However, the Commission also notes that the motor vehicle industry is currently undergoing an ecological and digital transformation (for example, through the increasing establishment of electromobility and the digitalisation of vehicles), which is putting the entire sector under great pressure to transform. Probably in order to take account of this change during the extended period of validity of the MVBER, the Commission has updated its Supplementary Guidelines for the motor vehicle sector, in particular to address the increasingly important issue of vehicle-generated data. For example, in its Guidelines the European Commission no longer focuses solely on “technical information”, but only refers more generally to “input”, which in addition to technical information also includes tools, training and vehicle-generated data (see point 62 of the Guidelines).

Another change is that the Commission provides a test for deciding whether the withholding of certain inputs will result in the agreement at issue being caught by Article 101 of the TFEU. Accordingly, the decisive factors are a) whether the input is essential for repair and maintenance, b) whether the input is made available on a non-discriminatory basis to authorised repairers and independent operators alike, and c) whether the input in question is ultimately used for the repair and maintenance of motor vehicles, or rather for another purpose, such as for the manufacturing of spare parts or tools (see point 62a of the Guidelines). Insofar as the withholding of input is to be justified on security grounds, the principle of proportionality must be observed (see point 62b of the Guidelines).

Finally, the Supplementary Guidelines contain an explicit warning in point 68a to the effect that the unilateral withholding of certain input, including the withholding of vehicle-generated data, may constitute abuse under Article 102 of the TFEU.

In its updated Guidelines, the Commission has provided guidance to motor vehicle manufacturers on the legal treatment of “inputs” in relation to independent operators. It is now important for companies to review existing agreements and their practices to see if they meet the new requirements set by the Commission.