Right of access to repair and maintenance information under the Type Approval Regulation and Data Act

Access to data is highly competitive, especially in the car industry and mobility sector, and is evolving fast.

It is therefore very important to consider when OEMs have to share what data or information, to what extent, on what terms, and with whom.

The Type Approval Regulation (EU) 2018/858 plays a key role in this, as it contains rules on the provision of OBD information or access to vehicle repair and maintenance information (“RMI”). In particular, the issue of the format in which RMI must be provided in accordance with Article 61 has already been the subject of numerous legal disputes.

In addition to sector-specific data access claims, the Data Act (Regulation (EU) 2023/2854) will also play a key role in connected vehicles in the future.

The Data Act not only contains specific rights relating to access to user-generated data, but also sets out general requirements for the organisation of data access rights (Article 8 onwards of the Data Act) and contracts for the use and access of data (Article 13 of the Data Act). The Data Act will therefore also have an impact on the assessment and design of rights of access to RMI under the Type Approval Regulation in the future.

I. Subject of the respective access rights

A comparison of the access rights under Regulation 2018/858 and the Data Act reveals both overlaps and clear differences in their approaches and objectives. The Data Act takes a broader, user-centred approach, while Regulation 2018/858 establishes feature-oriented, sector-specific rights of access.

The sector-specific access rules under Article 61 of Regulation 2018/858 primarily concern access by independent economic operators to information required for maintenance and repair, regardless of the processing stage of this information or data. The aim is to strengthen the independent aftersales market in competition with authorised companies and manufacturers, including through the existing access to OBD data, tools and other devices.

The Data Act, on the other hand, establishes access rules and rights for user-generated data, including data in connected vehicles. With regard to the type of relevant data, the Data Act takes a narrower approach by focusing on raw data and pre-processed data without, however, standardising further restrictions on the content of this data. In individual cases, it is conceivable that certain RMI may fall under the access rules of Regulation 2018/858 and the Data Act.

The RMI access rules of Regulation 2018/858 are aimed directly at independent economic operators as authorised parties so that they can fulfil their function in the aftersales market. By contrast, the Data Act places the user of the vehicle (or a related service) at the centre and only grants third parties, such as independent economic operators, (derived) access via the user, unless they are (exceptionally) users themselves.

As the right of access is intended to promote competition in the aftersales market, in principle there are no additional restrictions on the right of access under Article 61 of Regulation 2018/858. Nevertheless, the right of access is structured differently for the various types of independent economic operators.

Under the Data Act, the data holder can deny or restrict access by both the user and third parties selected by the user in certain expressly laid down cases, for example due to security concerns or if data contains business secrets. Restrictions may also result from the General Data Protection Regulation (GDPR). The details are still unclear, such as whether the grounds for refusal can also apply in the case of the right to ‘access by design’ in Article 3 of the Data Act (FAQ on the Data Act published by the EU Commission, point 21, support this).

II. Format of the data provided and fee

According to the Type Approval Regulation, manufacturers must provide the RMI data in such a way that the datasets contained in the RMI data can be processed directly electronically. The data must be made available on the manufacturer’s website. The specific arrangement has repeatedly been the subject of legal disputes (see CJEU judgment of 9 November 2023, C-319/22, GRUR-RS 2023, 30962 (para. 39)). The manufacturer may charge a reasonable and proportionate fee for access that does not discourage access.

In principle, the Data Act provides users with a direct right of access to the data. If a user does not receive direct access to the data in accordance with Article 3(1) of the Data Act, there is a right to have data be made available in accordance with Article 4(1) of the Data Act. The data must be provided immediately, securely, free of charge and in a machine-readable format, ideally in real time. The Data Act does not specify which formats are suitable in this regard. However, the requirements in Article 20 of the GDPR and also the principles that have been established in case law to date on access to RMI data can be used as a guide.

In addition, users can request that the data be handed over to third parties. In these cases, however, the data holder can demand remuneration from the data recipient for the provision of data. This remuneration must comply with the FRAND provisions in Chapter III of the Data Act, i.e. it must be non-discriminatory and appropriate. The EU Commission will publish corresponding model terms for appropriate compensation by September 2025.

III. Impact of the Data Act on rights of access under the Type Approval Regulation and existing data licensing agreements

In addition to the specific regulations on access to user-generated data, the Data Act also contains provisions that may be relevant to the disclosure of RMI data. For example, the Data Act contains general rules for the arrangement of rights of access on the basis of European Union law (Chapter III).

Furthermore, Chapter IV of the Data Act contains specific provisions on unfair B2B contract terms and thus a content control similar to German law.

The provisions contained in Chapter IV are also directly relevant to existing contracts governing, for example, the use of RMI data.

It remains to be seen whether the provisions in Chapter III, which provide specific requirements for the organisation of rights to access, will also have an indirect impact on access to RMI data. Although existing legal acts remain fundamentally unaffected by the Data Act, its provisions are likely to become relevant both in interpretating unresolved legal questions on rights to access and also for future revisions.

IV. You can find a detailed analysis here

You can find a more in-depth look at the topics addressed here in this article in the essay available for download here, which was also recently published in issue 2/24 of RAW magazine (Article only available in German: Recht Auto Wirtschaft).