Judgment;Summary — ECLI:EU:C:2023:743
Date: 2023-10-05
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
5 May 2022 
Referring court: 
Landgericht Köln (Germany) 
Date of the decision to refer: 
27 April 2022 
Applicants: 
A.T.U. Auto-Teile-Unger GmbH & Co. KG 
Carglass GmbH 
Defendant: 
FCA Italy SpA 
  
Subject matter of the main proceedings 
Interpretation of Regulation (EU) 2018/858 with regard to the manner in which 
vehicle manufacturers must make the vehicle data stream available to repairers for 
purposes of maintenance and repair 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU, in particular 
Regulation (EU) 2018/858 of the European Parliament and of the Council of 
30 May 2018 (OJ 2018 L 151, p. 1) 
Regulation (EC) No 661/2009 of the European Parliament and of the Council of 
13 July 2009 (OJ 2009 L 200, p. 1) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-296/22 
 
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Regulation (EU) 2019/2144 of the European Parliament and of the Council of 
27 November 2019 (OJ 2019 L 325, p. 1) 
Commission Regulation (EU) 2017/1151 of 1 June 2017 (OJ 2017 L 175, p. 1) 
Regulation (EC) No 715/2007 of the European Parliament and of the Council of 
20 June 2007 (OJ 2007 L 171, p. 1) 
UN Regulation No 155 – Uniform provisions concerning the approval of vehicles 
with regards to cyber security and cyber security management system [2021/387] 
(OJ 2021 L 82, p. 30) (‘UN Regulation No 155’) 
Question referred for a preliminary ruling 
Is Article 61(1) and (4) of Regulation 2018/858, read in conjunction with 
point 2.9 of Annex X thereto, which obliges the vehicle manufacturer, for 
the purpose of vehicle OBD, diagnostics, repair and maintenance, to make 
the direct vehicle data stream available through the serial data port on the 
standardised data link connector, also taking into account the requirements 
imposed on the vehicle manufacturer to guarantee the general safety of the 
vehicle in Item 63 of Part 1 of Annex II to that regulation 
– read in conjunction with Regulation No 661/2009 as regards vehicles 
type-approved prior to 6 July 2022, in particular Article 5(1) thereof, 
and 
– read in conjunction with Regulation 2019/2144, applicable as of 6 July 
2022, and in particular Article 4(4) and (5) thereof, 
to be interpreted as meaning that the vehicle manufacturer must always 
ensure, including when implementing relevant safety measures, that the 
vehicle OBD, diagnostics, repair and maintenance, including the write 
operations necessary for these purposes, can be carried out by independent 
repairers using a universal and generic diagnostic tool, without any need to 
meet requirements, not expressly stipulated in the regulation, for the device 
to have an internet connection to a server designated by the manufacturer 
and/or for the user to have personally registered with the vehicle 
manufacturer beforehand? 
Provisions of EU law cited 
Regulation 2018/858, in particular Article 61(1) and (4), read in conjunction with 
point 2.9 of Annex X; Item 63 of Part 1 of Annex II; Article 3, points 40 and 45 
Regulation No 661/2009, in particular Article 5(1) thereof 
Regulation 2019/2144, in particular Article 4(4) and (5) thereof 
A.T.U. AUTO-TEILE-UNGER AND CARGLASS 
 
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Regulation 2017/1151, in particular point 2.3.1 of Annex I thereto 
Regulation No 715/2007, in particular the first sentence of Article 6(1) thereof 
UN Regulation No 155, in particular Annex 5, Table A1, No 4.3.5 (18) 
Provisions of national law cited 
Gesetz gegen den unlauteren Wettbewerb (Law against Unfair Competition; ‘the 
UWG’) 
Facts and procedure 
1 The parties disagree as to whether car manufacturers must make the direct vehicle 
data stream available to independent economic actors, including repair shops such 
as the applicants, in such a way that vehicle diagnostics, repair and maintenance, 
including the write operations necessary for this purpose, can be carried out using 
a universal and generic diagnostic tool, without the device needing an internet 
connection to a server designated by the manufacturer and without the user having 
personally registered with the vehicle manufacturer beforehand. 
2 Applicant 1 is an independent repair shop chain in Germany and offers repair and 
maintenance services for motor vehicles of all common brands. Applicant 2 is the 
market leader in Germany for repair and replacement of vehicle windscreens. The 
two applicants are independent operators within the meaning of Article 3.45 of 
Regulation 2018/858. 
3 As part of their business activity, the applicants regularly perform diagnostic work 
as preparation for vehicle repair and maintenance, as well as calibration processes 
for driver assistance systems. 
4 The defendant is a subsidiary of the Fiat Chrysler Automobiles N.V. automotive 
group. It manufactures passenger cars and light-duty vehicles. It is the holder of 
EC type approvals for Fiat brand vehicles, such as for the Fiat 500X. As the 
holder of these type approvals, the defendant is a manufacturer within the 
meaning of Article 3.40 of Regulation 2018/858 and thus is also an addressee of 
Article 61(1) and (4) of, in conjunction with point 2.9 of Annex X to, that 
regulation. 
5 In that capacity, the defendant is required to assist independent operators such as 
the applicants in the diagnosis, repair and maintenance of vehicles by means of a 
connector via which the diagnostic tools are physically connected to the vehicle – 
the ‘On Board Diagnostics’ interface (‘the OBD’), in accordance with the 
aforementioned rules. 
6 Vehicle diagnostics via the OBD interface are vitally important to enable 
independent repairers to carry out their work. That connector makes it possible for 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-296/22 
 
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them to access the vehicle data stream and thus to read data that are essential for 
repair and maintenance. It is often necessary to perform calibrations, among other 
things, in order to carry out the repair itself. 
7 Access to the vehicle data stream, that is to say, to information that is transmitted 
between the vehicle and the diagnostic tool via the OBD interface, is key to 
vehicle diagnostics. Repairers require access to the vehicle data stream via the 
OBD interface not merely for read-only operations, but also for write operations, 
for example in order to erase error codes after a fault has been rectified. 
8 In order to carry out their work, independent repairers use generic diagnostic tools 
from various suppliers, which generally enable them to perform diagnostics, repair 
and maintenance procedures on vehicles of different brands (‘multi-make 
diagnostic tools’). 
9 The defendant equips various vehicle models, such as the Fiat 500X, with so-
called ‘secure gateways’. If independent repairers do not fulfil the requirements 
stipulated by the defendant, they can carry out only a fraction of typical vehicle 
diagnostics, maintenance and repair work. They are only able to read error codes 
and other performance values, that is to say, to carry out read-only operations. 
10 In order to perform write operations, to erase error codes, to perform 
recalibrations and to activate vehicle parts, both independent repairers and the 
defendant’s authorised repairers have to meet the following requirements 
stipulated by the defendant (‘the contested requirements’): 
– Repairer employees must register via an online portal and provide personal 
information such as names and date of birth. 
– Employees must agree to the defendant’s general terms and conditions and 
privacy policy. 
– After registering, employees can purchase a paid subscription for use of multi-
make diagnostic tools. 
– In order to be able to start diagnostics, the registered employee must log in via 
the multi-make diagnostic tool and identify him- or herself with a username 
and password. An internet connection to the defendant’s server is required for 
this purpose, as well as to carry out all subsequent vehicle diagnostics. 
11 The applicants take the view that they are entitled, under the Law against Unfair 
Competition (the UWG), to take out a prohibitory injunction for infringement of 
Article 61(1) and (4) of Regulation 2018/858, in conjunction with point 2.9 of 
Annex X thereto. 
12 They are essentially demanding that the defendant disapply the contested 
requirements, other than in cases involving full reprogramming of control units 
pursuant to point 6.4 of Annex X to Regulation 2018/858 or functions directly 
A.T.U. AUTO-TEILE-UNGER AND CARGLASS 
 
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related to emission calibration or prevention of theft pursuant to point 2.3.1 of 
Annex I to Regulation 2017/1151. 
13 The defendant contends that the action should be dismissed. 
Grounds for the request for a preliminary ruling 
14 The success of the action depends upon the interpretation of Article 61(1) and (4) 
of Regulation 2018/858, read in conjunction with point 2.9 of Annex X thereto. 
The action will be well founded if there has been an infringement of the rules set 
out above, as the applicants will then be entitled to their claim for injunctive relief 
under the first sentence of Paragraph 8(1) and Paragraphs 3(1) and 3a of the 
UWG. 
15 There are doubts surrounding the interpretation of the aforementioned provisions 
that is relevant to the decision here, which raise questions of general interest for 
the uniform application of EU law and which have not yet been clearly settled by 
the case-law of the Court of Justice of the European Union. 
16 The applicants claim a right to ‘unrestricted’ and comprehensive vehicle 
diagnostics. They assert that the defendant is infringing the aforementioned 
provisions of Regulation 2018/858 by imposing unauthorised additional 
requirements for using multi-make diagnostic tools to carry out vehicle 
diagnostics via the OBD interface, which are not provided for in the regulation 
and are not permissible. The defendant, they submit, must permit not solely read-
only access, but also write operations. 
17 By contrast, the defendant is of the view that it is not obliged to grant write access. 
It argues that the unrestricted access criterion within the meaning Article 61(1) of 
Regulation 2018/858 refers solely to the content of the information to be provided 
and that the ‘standardised’ criterion refers to access procedures and guaranteed 
standardisation of access is not disputed between the parties. It grants independent 
operators unrestricted access to OBD information and vehicle repair and 
maintenance information. 
18 The first relevant question for the purpose of resolving the present case is how the 
criterion of ‘unrestricted’ access set out in Article 61(1) of Regulation 2018/858 is 
to be interpreted. 
19 From a literal point of view, it is possible to interpret this to the effect that the 
defendant, as a vehicle manufacturer, must grant independent operators 
comprehensive access in every respect to the direct vehicle data stream via the 
OBD interface, that is to say, it must both provide all the substantive 
information – which is not disputed by the parties – and also allow the use and 
application of diagnostic tools without making these subject to specific conditions, 
such as the requirements being contested in the present case. 
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20 The sense and purpose of the regulation are to ensure that the independent vehicle 
repair and maintenance market as a whole can compete with authorised dealers. 
21 Any restriction of access to data affects not only independent repairers but also, 
ultimately, consumers. This is because not only would the cost of repair services 
increase, but the availability and selection of workshops would also be 
significantly reduced if vehicle manufacturers were free to restrict access to the 
data essential for diagnosis, repair and maintenance. This applies not only in terms 
of content, but also to cases in which vehicle manufacturers subject the use of 
diagnostic tools to certain conditions. If manufacturers are free to restrict or 
impose conditions for access to the vehicle data stream, there would also be 
nothing to prevent access being refused entirely or being made subject to 
conditions so unacceptable that practically no independent business could access 
the vehicle data stream. 
22 In its judgment of 19 September 2019, Gesamtverband Autoteile-Handel 
(C-527/18, EU:C:2019:762), the Court of Justice stated, in relation to the earlier 
provision in the first sentence of Article 6(1) of Regulation No 715/2007, that the 
criterion of unrestricted access refers to the actual content of the information that 
must be provided to the independent operators and not to the ways in which it is 
provided. 
23 If that case-law were to be applied in the same way to the criterion of 
‘unrestricted’ access set out in Article 61(1) of Regulation 2018/858, this would 
mean that the qualifier ‘unrestricted’ would not preclude the contested 
requirements stipulated by the defendant. 
24 However, whether or not this case-law should be applied is questionable. First, the 
regulation is new legislation. Second, the judgment of the Court of Justice 
concerned the provision of information about repair and maintenance on a vehicle 
manufacturer’s website and not, as in the present case, access to the vehicle data 
stream via the OBD interface, which the vehicle manufacturer is required to grant 
without restriction. 
25 If the criterion of ‘unrestricted’ access covers not only the content of the 
information but also, in principle, the defendant’s contested requirements, the 
question then arises as to how the term ‘unrestricted’ is to be interpreted in the 
light of the defendant’s obligation to ensure the general safety of vehicles in its 
capacity as a vehicle manufacturer. 
26 Such an obligation results from, inter alia, Item 63 of Part 1 of Annex II to 
Regulation 2018/858 in conjunction with Regulation No 661/2009 in relation to 
vehicles type-approved before 6 July 2022, in particular Article 5(1), and in 
conjunction with Regulation 2019/2144, applicable as of 6 July 2022, in particular 
Article 4(4) and (5) thereof. 
A.T.U. AUTO-TEILE-UNGER AND CARGLASS 
 
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27 The defendant contends that setting up the Secure Gateway in its vehicles is 
necessary for legitimate reasons and to prevent possible risks to the safety of the 
vehicle. 
28 In particular, there is a danger that modifications affecting the safety of the vehicle 
could be prepared and executed by unauthorised persons physically connecting a 
diagnostic tool to the vehicle’s OBD interface, or that malware could be installed 
through the direct data connection. 
29 The need for registration and authentication is based on the defendant’s legitimate 
interest in preventing anonymous access via the OBD interface, as this would 
represent a significant cyber security risk. The permanent internet connection 
should ensure that the person working in write mode is also the person who 
identified himself/herself at the start. By contrast, work in read-only access does 
not require a permanent connection to the defendant’s server. 
30 It must be assumed that, as a result of the aforementioned obligations relating to 
vehicle safety, the defendant has an interest in not permitting unauthorised, 
anonymous access to a vehicle’s OBD system via the OBD interface. Such an 
interest could also be confirmed by UN Regulation No 155, Annex 5, Table A1, 
Point 4.3.5 (18). 
31 That interest must be weighed against the interest of independent operators in 
obtaining unrestricted access to vehicle information. So far as can be ascertained, 
that question has not yet been resolved by the Court of Justice of the European 
Union. 
32 It is not clear from the aforementioned provisions whether the defendant is also 
required to guarantee write access. Regulation 2018/858 contains no express 
provision in that regard. 
33 Point 2.9 of Annex X to Regulation 2018/858 merely states: ‘When the vehicle is 
in motion, the data shall only be made available for read-only functions.’ 
Conversely, this could mean that data can also be accessed in write mode when 
the vehicle is stationary. 
34 By contrast, according to Article 61(4) of Regulation 2018/858, Annex X to that 
regulation governs access to vehicle OBD information. That concept is legally 
defined in Article 3.49 of that regulation. It refers to information generated by the 
vehicle and not information generated in write mode to be transmitted to the 
vehicle. 
35 There are thus considerable doubts about interpretation in this regard also, and 
these require clarification by the Court of Justice of the European Union.