Important stage victory with ramifications for the independent aftermarket
Based on a submission by the Regional Court of Cologne in June 2021, the Court of Justice of the EU (CJEU) has now delivered its decision in the case of ADPA/GVA v Peugeot/PSA (C-390/21) on 27 October 2022, see ECJ judgement C-390/21.
The judgment is of fundamental importance for access to information and databases in regulated sectors. It confirms the legal opinion of the claimants, ADPA, the Automotive Data Publishers Association, and GVA, the Gesamtverband Autoteile-Handel, represented by Osborne Clarke, that the information provider cannot demand an additional conclusion of a licence agreement on its own terms in the case of statutory access claims and fee regulations. Rather, all mutual rights and obligations arise exclusively and conclusively directly from the law.
Older vehicle models covered
In a crucial statement, the CJEU first made clear that Regulation 2018/858 on the approval and market surveillance of motor vehicles is also applicable to vehicle models that were type-approved before it entered into effect, and notably Euro 5/6 vehicles. The defendants had argued that the regulation could only apply to models approved after September 2020. They were, therefore trying to omit the majority of their vehicles from their obligation to provide repair and maintenance information as electronic and machine-readable datasets.
'Reasonable and proportionate' fees
The CJEU also held that vehicle manufacturers may not arbitrarily charge "licence fees" for repair and maintenance information. They have to make the information free to market. A contractual licence to use the relevant databases was not provided for by law. The legal right to access vehicle manufacturers' repair and maintenance information therefore includes the right to use the information for their own business purposes. Therefore, the approach of the defendant French manufacturer to enforce marketing without being subject to the legal limitations of the "reasonable and proportionate" fee was eliminated.
Nevertheless, even under the law, vehicle manufacturers do not have to provide the information free of charge but can charge fees as long as these do not discourage access to the information. This is intended to ensure effective market competition for repairs and spare parts.
The CJEU has left open how this is to be measured in concrete terms. It made it clear that it is not just a matter of reimbursing actual costs. In the further proceedings before the Regional Court of Cologne, there is a need for further clarification on the question of when fees are reasonable and proportionate.
The claimants, two industry associations, were represented before the CJEU by Marcus Sacré, Elisabeth Macher and Paul Schmitz, who are also continuing the national proceedings.