With a ruling rendered on Oct. the 5th, 2023, the European Court of Justice (Eighth Chamber) once again was called to clarify the scope of Article 61 of Regulation (EU) 2018/858 of the European Parliament and of the Council of May the 30th, 2018 on motor vehicles Manufacturer’s Obligations to Provide Independent Repairers with Vehicle Repair and Maintenance Information.
Free and full access to technical information on the electronic diagnostic and control systems of cars by independent workshops, i.e., unrelated to the repair networks of the various brands, is a topic dear to the European legislator, since the introduction of Regulation (EC) No. 1400/02 (Art. 4 § 2.).
This right has been reiterated and strengthened in subsequent regulations by exemption (e.g., Recital 62 of the Additional Guidelines sub-Regulation (EU) 461/20210), finally finding specific and organic discipline in Regulation (EU) No. 2018/858, on type-approval and market surveillance of motor vehicles and their trailers, systems, components and separate technical units intended for such vehicles.
In a nutshell, manufacturers must allow workshops, which are not part of their repair networks unrestricted, standardized and non-discriminatory access to vehicle ODB information (on-board diagnostics), gear and other equipment, tools for vehicle repair and maintenance, including full references and downloadable applicable software (Article 61 Regulation (EU) No. 2018/858 cited above).
This provision was put in place in order to make competition effective between the repair services offered by entities affiliated with the various Manufacturers and independent repair shops on the market; otherwise, also due to technological development, the latter would not have had real possibilities to pose themselves as a concrete alternative in car servicing.
In its decision of October 5th, 2023 rendered in the Case C-296/22 A.T.U. Auto-Teile-Unger GmbH & Co. KG Carglass GmbH v. FCA Italy S.p.A, the ECJ has determined the concrete scope of the aforementioned obligation to provide information; the ruling on the interpretation of Article 61 of Regulation (EU) No. 2018/858 came as a preliminary evaluation in the context of the action brought by two independent operators (the A.T.U. and Carglass) forced – according to the thesis they put forward – to register with FCA by means of personal connection data on dedicated servers for the use, with a special subscription, of generic diagnostic equipment to be connected to the said server via the Internet.
This unilateral imposition of FCA had been perceived by claimants as a violation of the principle of free and non-discriminatory access to ODB information and diagnostics, pursuant to the aforementioned Article 61(1) and (4) of Regulation (EU) No. 2018/858; in fact, such access mode, appeared to be at odds with the conditions set forth in the aforementioned provision.
With its ruling, the Court reaffirmed the need for effective competition in the market for vehicle repair and maintenance services so that independent garages can compete with the official networks of the various manufacturers, also specifying, in the wake of other precedent (Judgment 27.10.2022, ADP and Gesamtverband Autoteile-Handel – C-390/21 EU:c:2022:837), that ways of accessing the aforementioned information via the Internet through a server designated by a manufacturer or after registration of independent operators are illegitimate.
The interpretation of Article 61(1) and (4) of Regulation (EU) No. 2018/858 has therefore been set in the following terms: “it [Article 61 – ed.] precludes a car manufacturer from making access by independent operators to vehicle repair and maintenance information as well as on-board diagnostic information, including write mode access to such information, subject to conditions other than those laid down in that regulation” (see decision).
The aforementioned principle must be kept in mind by Manufacturers when modulating/concretely structuring the channels of access to technical information on car electronic diagnostic and control systems in favour of independent repairers.
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