COMMISSION STAFF WORKING DOCUMENT of the Motor Vehicle Block Exemption Regulation Accompanying the document REPORT FROM THE COMMISSION Commission Evaluation Report on the operation of the Motor Vehicle Block Exemption Regulation (EU) No 461/2010
Date: 2021-05-28
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, application of EU law, control of restrictive practices, general mechanical engineering, motor vehicle, motor vehicle industry, provision of services, restriction on competition, vehicle parts, vertical agreement

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.5.2021  SWD(2021) 112 final  COMMISSION STAFF WORKING DOCUMENT of the Motor Vehicle Block Exemption Regulation Accompanying the document REPORT FROM THE COMMISSION Commission Evaluation Report on the operation of the Motor Vehicle Block Exemption Regulation (EU) No 461/2010  {COM(2021) 264 final}  
 
 
Table of contents  

1 

2 

3 

INTRODUCTION ................................................................................................................................ 3 

BACKGROUND TO THE INTERVENTION ..................................................................................... 6 

EVALUATION QUESTIONS ............................................................................................................ 13 

4  METHODOLOGY .............................................................................................................................. 13 

5  MARKET  DEVELOPMENTS  AND  ENFORCEMENT  ACTIVITIES  IN  THE  MOTOR 

VEHICLE SECTOR ........................................................................................................................... 19 

6 

7 

THE EVALUATION CRITERIA ....................................................................................................... 29 

CONCLUSIONS ................................................................................................................................. 60 

Annex 1: Procedural information ............................................................................................................. 64 

Annex 2: Key findings of fact-finding study ............................................................................................ 67 

Annex 3: Consultations ............................................................................................................................ 86 

Annex 4: Public enforcement of the Motor Vehicle Block Exemption Regime .................................... 141 

Annex 5: Methods and analytical mode ................................................................................................. 152 

Annex 6: Overview of issues identified during the evaluation process .................................................. 156 

1 

 
 
Glossary 

Term or acronym 

Meaning or definition 

Commission  

European Commission 

DG Competition  

Directorate-General for Competition of the European Commission 

EU 

EUR 

European Union  

Euro 

EEA Agreement  

Agreement on the European Economic Area 

EFTA  

VBER 

MVBER  

VGL 

SGL  

European Free Trade Association 

Vertical Block Exemption Regulation  

Motor Vehicle Block Exemption Regulation 

Guidelines on Vertical Restraints / Vertical Guidelines 

Supplementary Guidelines on vertical restraints in agreements for 
the sale and repair of motor vehicles and for the distribution of 
spare parts for motor vehicles / Supplementary Guidelines  

MVBER regime  

VBER + MVBER + VGL + SGL 

NCAs  

OEM 

OES 

IAM 

RPM  

VM 

National Competition Authorities 

Original Equipment Manufacturer  

Original Equipment Suppliers 

Independent Aftermarket Suppliers 

Resale Price Maintenance 

Vehicle Manufacturer 

2 

 
 
 
1 

INTRODUCTION 

Article  101(1)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (“the  Treaty”) 
prohibits  agreements  between  undertakings  and  concerted  practices  that  restrict 
competition,  unless, in  accordance with  Article 101(3) of the Treaty, they contribute to 
improving the production or distribution of goods or to promoting technical or economic 
progress, while allowing consumers a fair share of the resulting benefits.  

The prohibition in Article 101(1) of the Treaty covers, among other things, agreements 
and  concerted  practices  entered  into  between  two  or  more  undertakings  operating  at 
different  levels  of  the  production  or  distribution  chain,  and  relating  to  the  conditions 
under which the parties may purchase, sell or resell certain  goods or services (“vertical 
agreements”).  Council  Regulation  (EEC)  19/651  (“the  Empowerment  Regulation  of 
1965”)  enables  the  Commission  to  apply  Article  101(3)  of  the  Treaty  by  regulation  to 
certain  categories  of  vertical  agreements  and  corresponding  concerted  practices  falling 
within Article 101(1) of the Treaty for which it can be assumed with sufficient certainty 
that  they  satisfy  the  conditions  of  Article  101(3)  of  the  Treaty.  The  Commission  has 
made use of this power by adopting general as well as sector-specific measures.  

Distribution and repair agreements in the motor vehicle sector have long been subject to 
sector-specific  block  exemption  regulations.  The  current  regime  applicable  to  vertical 
agreements  in  the  sector  consists  of  the  general  block  exemption  rules,  as  set  out  in 
Regulation  (EU)  330/20102  (“Vertical  Block  Exemption  Regulation”  or  “VBER”)  and 
the  Guidelines  on  Vertical  Restraints3  (“VGL”),  sector-specific  block  exemption 
provisions,  as  provided  for  in  Regulation  (EU)  461/20104  (the  “MVBER”),  and  the 
Supplementary Guidelines on vertical restraints in agreements for the sale and repair of 
motor vehicles and for the distribution of spare parts for motor vehicles5 (“SGL”). These 
rules are referred to in this Staff Working Document (“SWD”) as the “MVBER regime”. 

The MVBER expires on 31 May 2023. Pursuant to Article 7 thereof, the Commission has 
to draw up an evaluation report on its operation by 31 May 2021. When the evaluation of 

1   Regulation  No  19/65/EEC  of  2  March  of  the  Council  on  application  of  Article  85(3)  of  the  Treaty  to  certain 
categories of agreements and concerted practices, OJ 36, 6.3.1965, p. 35, as amended by Council Regulation (EC) 
No 1215/1999 of 10 June 1999, OJ L 148, 15.6.1999. 

2   Commission Regulation (EU) 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the 
Functioning of the European Union to categories of vertical agreements and concerted practices, OJ L 102/1 of 
23.4.2010. 

3   Guidelines on Vertical Restraints, OJ C 130/1 of 19.5.2010. 
4   Commission Regulation (EU) 461/2010 of 27 May 2010 on the application of Article 101(3) of the Treaty on the 
Functioning  of  the  European  Union  to  categories  of  vertical  agreements  and  concerted  practices  in  the  motor 
vehicle sector, OJ L 129/52 of 28.5.2010. 

5  

Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the 
distribution of spare parts for motor vehicles, OJ C 138/5 of 28.5.2010. 

3 

 
 
 
 
 
 
                                                           
legislation  is  based  on  a  review  clause  in  a  legal  act  which  obliges  the  Commission  to 
produce  a  Commission  Report  (i.e.,  one  adopted  by  the  College),  a  SWD  should  be 
linked to and support the main Commission Report.  

This  is  therefore  the  SWD  evaluating  the  impact  of  the  MVBER  regime  on  industry 
practices and the effect of those practices on competition in the markets for motor vehicle 
retailing and aftersales servicing within the EU. It does not prejudge the final nature or 
content  of  any  decision  that  the  Commission  may  take  following  this  evaluation.  The 
SWD is accompanied by six technical annexes. 

The following sections set out the purpose of the evaluation (Section 1.1), as well as its 
substantive and geographic scope (Section 1.2). 

1.1  Purpose of the MVBER evaluation 

The purpose of the evaluation is  to  gather  facts  and evidence on the  functioning of the 
MVBER  regime  which  will  serve  as  a  basis  for  the  Commission  to  decide  whether  it 
should let that regime lapse by 31 May 2023,6 or should rather renew or revise it. 

As required by the Commission’s Better Regulation Guidelines,7 the evaluation examines 
whether  the  objectives  of  the  MVBER  regime  were  met  during  the  period  of  its 
application (effectiveness) and continue to be appropriate (relevance) and whether, taking 
account  of  the  costs  and  benefits  associated  with  applying  it,  the  MVBER  regime  has 
been  efficient  in  achieving  its  objectives  (efficiency).  It  also  considers  whether,  as 
legislation at EU level, the MVBER regime has provided added value (EU added value) 
and  is  consistent  with  other  Commission  documents  providing  guidance  on  the 
application of Article 101 of the Treaty and related legislation with relevance for vertical 
agreements in the motor vehicle sector (coherence). 

The impact of the COVID-19 pandemic is not dealt with in this SWD, given that it is still 
ongoing, and that its impact was mostly not included in the evidence provided during the 
evaluation.  

1.2  Scope of the MVBER evaluation 

The motor vehicle sector has been subject to a specific block exemption regime since the 
mid-1980s. This regime has already been revised three times over the last three decades, 
most recently in 2010. Under the MVBER regime, agreements for the distribution of new 
motor  vehicles  were  brought  under  the  VBER  from  1  June  2013.  As  to  aftermarket 
agreements,  these  benefitted  from  the  MVBER  from  1  June  2010  so  long  as  the 

If the current MVBER were to lapse, the VBER would apply by default. 

6  
7   Commission staff working document, Better Regulation Guidelines, Brussels, 7 July 2017, SWD (2017) 350. 

4 

 
 
 
 
 
 
 
 
 
                                                           
requirements  of the VBER  were met  and provided that they  did  not  contain  any of the 
additional hardcore clauses listed in Article 5 MVBER. 

The  substantive  scope  of  the  evaluation  therefore  comprises  four  sets  of  rules:  (i)  the 
MVBER  itself,  which  superseded  the  previous  sector-specific  block  exemption 
regulation (Regulation (EC) 1400/20028); (ii) the VBER, in so far as it applies to vertical 
agreements  concerning  motor  vehicles;  (iii)  the  VGL,  which  provide  guidance  on  the 
application of the VBER; and (iv) the SGL, which provide guidance on the application of 
the MVBER and supplement the VGL with regard to the application of the VBER to the 
motor vehicle sector. 

The VBER has also been subject to an evaluation, since it expires in May 2022, one year 
before the MVBER. The outcome of the VBER evaluation9 will be taken into account in 
the context of the next steps of the review process of the MVBER regime. 

The geographic scope of the evaluation includes all EU Member States.10 Article 101(1) 
of the Treaty is directly applicable in all EU Member States.  

By  introducing  a  directly-applicable  exemption  system  in  which  the  competition 
authorities and the courts of the Member States have the power to apply not only Article 
101(1)  of  the  Treaty,  but  also  Article  101(3),  Council  Regulation  1/200311  introduced 
parallel  competences  for both.  When assessing the compatibility of vertical  agreements 
in  the  motor  vehicle  sector  that  may  affect  trade  between  Member  States  within  the 
meaning  of  Article  101  of  the  Treaty,  National  Competition  Authorities  ("NCAs")  and 
national  courts  are  bound  by  the  directly-applicable  provisions  of  the  VBER  and 
MVBER. The VGL and SGL, which are binding on the Commission, do not bind NCAs 
or national courts, but are typically taken into account when assessing the compatibility 
of vertical agreements in the motor vehicle sector with Article 101 of the Treaty. 

Against  this  background,  the  evaluation  of  the  MVBER  regime  not  only  covers  the 
decisional practice of the Commission but also that of the NCAs, as well as the relevant 
case  law  of  national  courts.  The  three  European  Free  Trade  Area  (“EFTA”)  States 
(Iceland,  Liechtenstein  and  Norway)  are  not  subject  to  this  evaluation.  This  is  because 
secondary  EU  law,  such  as  the  VBER  and  MVBER  is  not  directly  applicable  in  these 
countries  as,  to  become  applicable,  first  has  to  be  included  in  the  Agreement  on  the 

8   Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to 

categories of vertical agreements and concerted practices in the motor vehicle sector. OJ L 203, 1.8.2002. 

9   Commission staff working document, Vertical Block Exemption Regulation, Brussels, 8 September 2020, SWD 

(2020) 173. 

10   Since  the  MVBER  regime  has  been  fully  applicable  in  the  UK  during  the  period  under  review,  the  evaluation 
includes evidence  gathered  from stakeholders in the UK, in particular from the  UK’s Competition and Markets 
Authority. 

11   Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid 

down in Articles 81 and 82 of the Treaty ("Council Regulation 1/2003"), OJ L 1, 4.1.2003. 

5 

 
 
 
 
 
 
                                                           
European  Economic  Area  ("EEA  Agreement")  on  the  basis  of  Article  60  of  the  EEA 
Agreement,  and then incorporated into the national  legal  orders of the EFTA States.  In 
view of the Commission’s obligation to informally seek advice from experts of the EFTA 
States for the elaboration of new legislative proposals, it informed the EFTA States of the 
evaluation  of  the  MVBER  regime  to  provide  them  with  an  early  opportunity  to  share 
their experience in this regard. 

2  BACKGROUND TO THE INTERVENTION 

The following sections provide (i) an overview of the EU competition policy framework 
for vertical agreements in the motor vehicle  sector (Section 2.1); (ii) a description of the 
current  MVBER  regime,  which  constitutes  the  intervention  subject  to  this  evaluation 
(Section  2.2);  (iii)  a  presentation  of  the  intervention  logic  (Section  2.3);  and  (iv)  a 
presentation of the evaluation baseline for the MVBER regime (Section 2.4). 

2.1  Overview of the motor vehicle block exemption regime 

Vertical agreements between actors in the motor vehicle sector at different levels of the 
distribution  chain  are  found  in  three  main  areas:  (i)  the  distribution  of  new  motor 
vehicles; (ii) the provision of repair and maintenance services; and (iii) the distribution of 
spare  parts.  The  players  involved  in  these  agreements  include  vehicle  manufacturers, 
authorised vehicle dealers and repairers, parts manufacturers and parts distributors. Other 
actors,  such  as  independent  repair  shops,  roadside  assistance  operators,  specialist  crash 
repair shops, car glass installers, insurers, finance firms and mobility providers are also 
affected.  

Such  vertical  agreements  may  give  rise  to  competition  concerns  and  thus  require 
assessment  pursuant  to  Article  101  of  the  Treaty.  Agreements  that  are  caught  by  the 
prohibition in Article 101(1) of the Treaty may benefit from the exemption provided for 
in Article 101(3) of the Treaty, as long as they satisfy the cumulative conditions set out 
therein. In this regard, block exemption regulations create safe harbours for categories of 
agreements  that are caught  by the prohibition  of Article 101(1) of the Treaty, relieving 
the parties from the need to analyse on an individual case-by-case basis whether they can 
benefit from Article 101(3) of the Treaty.  

The  motor  vehicle  sector  has  long  been  subject  to  specific  block  exemption  regimes, 
beginning  with  Regulation  (EC)  123/85,12  which  was  successively  superseded  by 
Regulation  (EC)  1475/95,13  Regulation  (EC)  1400/2002  and  the  currently  applicable 
MVBER.  While  sector-specific  block  exemptions  were  the  norm  thirty  years  ago,  in 

12   Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85 (3) of the Treaty 

to certain categories of motor vehicle distribution and servicing agreements. OJ L 15, 18.1.1985. 

13   Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 85 (3) of the Treaty to 

certain categories of motor vehicle distribution and servicing agreements. OJ L 145, 29.6.1995. 

6 

 
 
 
 
 
 
 
                                                           
more recent years, the Commission has moved towards general regimes applicable to all 
sectors, and the motor vehicle sector is  now unique in  having its  own block exemption 
regime. The last review of the regime applicable to the motor vehicle sector, whereby the 
currently applicable MVBER superseded Regulation 1400/2002, took place in 2010. This 
resulted  in  a  major  reform,  with  the  sector  being  brought  under  the  umbrella  of  the 
general regime for the first time.14 However, for the reasons set out below, the MVBER 
narrowed the scope of the exemption available for agreements in all other sectors under 
the  VBER  by  listing  three  additional  clauses  relating  to  spare  parts,  as  hardcore 
restrictions. 

2.2  Main elements of the 2010 reform 

The change introduced in 2010 was more pronounced for the primary market, for which 
the sector-specific rules were abolished altogether, albeit subject to a transition period of 
three years, to allow market participants time to adapt. The underlying reasoning was the 
Commission’s  finding  at  the  time  that  there  did  not  appear  to  be  any  significant 
competition shortcomings in new motor vehicle distribution which would distinguish the 
motor  vehicle  sector  from  other  economic  sectors  and  which  would  require  the 
application  of  rules  different  from  and  stricter  than  those  set  out  in  the  VBER.  At  the 
same time, however, the Commission found that certain characteristics of and persisting 
competition  issues  in  the  motor  vehicle  aftermarkets  still  merited  some  sector-specific 
rules on top of the general ones.15  

The  current  regime  applicable  to  vertical  agreements  in  the  motor  vehicle  sector 
consists  of  two  set  of  rules:  (i)  the  general  block  exemption  rules,  as  set  out  in  the 
VBER,  supplemented by the VGL;  and (ii) sector-specific block  exemption provisions, 
as  provided  for  in  the  MVBER,  which  are  supplemented  by  the  SGL  (see  Section  1.2 
above). It should be noted that the SGL also supplement the application of the VBER to 
the  motor  vehicle  sector.  In  addition,  in  2012,  the  Commission  published  a  set  of 
frequently asked questions (“FAQ”) on the application of EU antitrust rules in the motor 
vehicle sector. The aim of the FAQ was to complement the SGL, by helping stakeholders 
operating in the sector to understand how the Directorate-General for Competition (“DG 
Competition”)  approaches  particular  issues  regarding  the  motor  vehicle  markets. 
Moreover,  on  22  July  2009  the  Commission  adopted  a  Communication  entitled  “The 
Future  Competition  Law  Framework  applicable  to  the  motor  vehicle  sector”  (“2009 
Communication”)16  setting  out  seven  areas  which  were  found  to  be  problematic  from  a 
competition perspective. The Communication is thus relevant for the specific objectives 
of the MVBER regime for the purposes of this evaluation.  

14   Articles 3 and 4 MVBER. 
15   Article 5 MVBER. 
16   The  2009  was  accompanied  by  an  impact  assessment  containing,  inter  alia,  a  Technical  Annex  No  1  which 

restates the seven areas in which competition was found to be problematic. 

7 

 
 
 
 
 
                                                           
The 2010 reform included, among other things, the following main elements: 

a.  The  application  of  a  uniform  exemption  threshold  of  30%,17  replacing  the  two 
different  thresholds  applicable  under  Regulation  1400/2002  and  the  exemption  of 
qualitative selective distribution agreements without threshold;18 

b.  The treatment of non-compete / single-branding obligations was brought  into line 

with the general regime for vertical agreements;19 

c.  Provisions20 aimed at safeguarding motor vehicle dealers' sunk costs or regulating 
purely  contractual  issues  between  vehicle  manufacturers  and  dealers  were 
abolished; 

d.  Provisions21  aimed  at  promoting  certain  distribution  formats  (e.g.,  the  sale  of 
vehicles from different manufacturers within the same showroom, the  freedom to 
sell leasing services, and the freedom to open additional outlets) were abolished; 
e.  Only  three  of  the  sector-specific  hardcore  restrictions22  previously  included  in 
Regulation  1400/2002  were  carried  over  to  the  MVBER.23  The  rest  were  either 
replaced by those in the VBER24 or abolished altogether;25  
In  the  light  of  the  application  of  the  new  exemption  threshold  to  the  qualitative 
selective  agreements  prevalent  in  motor  vehicle  repair,  the  hardcore  provision 
relating to independent operators’ access to technical information26 was replaced by 
a  section  in  the  SGL  and  references  to  the  related  provisions  that  had  just  been 
incorporated in the type-approval rules.27  

f. 

The  MVBER  regime  provides  for  an  exemption  from  Article  101(1)  of  the  Treaty 
applicable to vertical agreements concerning conditions for the purchase, sale or resale of 
spare  parts  for  motor  vehicles,  or  repair  and  maintenance  services  for  motor  vehicles, 
provided that certain conditions are met.  

First,  the  agreements  must  fulfil  the  requirements  for  an  exemption  under  the  VBER, 
implying that the market shares of the supplier and the buyer concerned must not exceed 
the  threshold  of  30%28  and  that  the  agreement  in  question  must  not  include  any  of  the 

17   Article 3(1) VBER. 
18   Article 3 Regulation 1400/2002. 
19   Article 1(1)(d) VBER. 
20   Article 3 Regulation 1400/2002. 
21   Articles 1(1)(b) and 5(2)(b) of Regulation 1400/2002.  
22   Article 4 Regulation 1400/2002. 
23   Articles  5(a),  (b)  and  (c)  MVBER,  which  correspond  to  Article  4(1)(i),(j)  and  (l)  respectively  of  Regulation 

140//2002. 

24   Articles  4(a),  (b),  (c)  and  (d)  VBER,  which  correspond  to  Articles  (1)(a),  (b),  (c)  and  (d-e)  respectively  of 

Regulation 1400/2002. 

25   Article 4(1)(g) and (h) of Regulation 1400/2002. 
26   Article 4(2) of Regulation 1400/2002. 
27   Regulations 715/2007, 692/2008 and 595/2009. 
28   Article 3 VBER. 

8 

 
 
 
                                                           
hardcore restrictions listed under Article 4 VBER.29 The presence of such clauses in an 
agreement  implies  that  the  whole  agreement  no  longer  benefits  from  the  block 
exemption. Hardcore clauses are different from the so-called excluded restrictions listed 
under  Article  5  VBER.30  The  presence  of  excluded  restrictions  in  a  vertical  agreement 
does not imply the loss of the exemption for the entire agreement but only for the clauses 
constituting excluded restrictions under the VBER. 

Second, the agreements must not contain any of the hardcore restrictions provided for in 
the MVBER itself.31 These restrictions are: (i) the restriction of the sales of spare parts 
for  motor  vehicles  by  members  of  a  selective  distribution  system;  (ii)  the  restriction, 
agreed between a supplier of spare parts or repair equipment and a manufacturer of motor 
vehicles,  of  the  supplier’s  ability  to  sell  those  goods  to  authorised  or  independent 
distributors,  repairers  or  end  users;  and  (iii)  the  restriction,  agreed  between  a 
manufacturer of motor vehicles which uses components for the initial assembly of motor 
vehicles and the supplier of such components, of the supplier’s ability to visibly place its 
trade mark or logo on the components supplied. 

2.3 

Intervention logic and objectives  

In  essence,  the  MVBER  regime  exempts  specific  types  of  vertical  agreements  in  the 
motor  vehicle  sector  from  the  prohibition  in  Article  101(1)  of  the  Treaty.  For  the 
purposes of this evaluation, the term “intervention” captures all four instruments making 
up  the  MVBER  regime.32  Therefore  the  “intervention  logic”  (summarised  in  Figure  1 
below) refers to the application of this regime in its entirety to the motor vehicle sector. 

The general objective of the intervention is twofold: (i) to preserve the deterrent effect 
of Article 101 of the Treaty by facilitating the enforcement work of the Commission and 
also,  in  view  of  the  decentralised  enforcement  system,  the  work  of  the  NCAs  and 
national courts, which no longer have to carry out an individual assessment under Article 
101  of  the  Treaty  for  vertical  agreements  in  the  motor  vehicle    sector  covered  by  the 
MVBER  regime;  and  (ii)  to  help  businesses  conduct  the  self-assessment  of  their 
vertical agreements, thereby reducing costs.  

The specific objectives of the MVBER regime are better understood in the context of the 
wider legal framework that was in place in 2010 for applying Article 101 of the Treaty 
(and remains in place today), as further explained below: 

29   These  include  price  resale  maintenance  and  certain  restrictions  relating  to  territories,  customers,  cross-supplies 

and sale of components as spare parts. 

30   These restrictions include certain non-compete/single-branding obligations. 
31   Article 5 MVBER.  
32   The Commission´s 2009 Communication setting out specific situations characterized by competition problems in 

the automotive sector is also relevant for the evaluation. 

9 

 
 
 
 
  
 
 
                                                           
First specific objective - increasing legal certainty: The abolition of the pre-notification 
system, established by the previous Council Regulation 17/62,33 and its replacement by a 
self-assessment  system,  in  the  context  of  which  undertakings  need  to  check  for 
themselves  whether  the  agreements  and/or  specific  clauses  they  (plan  to)  enter  into 
comply  with  Article  101  of  the  Treaty,  accentuated  the  need  for  legal  certainty  and 
guidance  on  the  application  of  Article  101  of  the  Treaty.  The  VBER  and  the  MVBER 
provide the general framework of the Commission’s interpretation and implementation of 
Article 101 of the Treaty. Furthermore, the SGL and VGL set out the main elements of 
the  Commission’s  interpretation  of  the  MVBER  and  VBER,  as  well  as  the  main 
parameters  it  would  normally  take  into  account  when  assessing  vertical  agreements 
falling outside the scope of the exemption. The SGL and VGL also provide examples of 
the most common vertical restraints relevant to the motor vehicle sector, thus covering a 
large  part  of  the  relevant  market  practices.  Absent  such  guidance,  undertakings  would 
have  to  base  their  self-assessment  exclusively  on  the  Commission’s  administrative 
practice and the Union Courts’ case law, which, albeit useful, cannot provide sufficient 
legal certainty, due to their nature, which is in principle case-specific. 

Second specific objective  -  reducing  the risk of  false positives and false negatives:  The 
Commission’s power to adopt block exemption regulations identifying the categories of 
vertical  agreements  in  the  motor  vehicle  sector  for  which  it  can  be  assumed  with 
sufficient  certainty  that  they  satisfy  the  conditions  of  Article  101(3)  of  the  Treaty  goes 
hand-in-hand with the need to reduce errors in the form of so-called false positives (i.e., 
block exempting vertical agreements that should not benefit from the exemption) as well 
as the need to reduce errors in the form of so-called false negatives (i.e., leaving vertical 
agreements  outside  the  scope  of  the  exemption  in  situations  where  those  agreements 
should  have  benefited  from  the  exemption).  It  should  be  noted  that  false  negatives 
(under-exemption) are less harmful than false positives (over-exemption), given that false 
negatives do not  result in  situations  that are in breach of  Article 101 of the Treaty and 
Regulation  (EEC)  19/65,  under  which  the  Council  has  empowered  the  Commission  to 
adopt  block  exemption  regulations.  In  general,  block  exemption  regulations  aim  to 
reduce the risk of errors in  the form  of false positives and negatives by  means of three 
types  of  provisions:  (i)  the  conditions  for  exemption;  (ii)  specific  types  of  restrictions 
that,  if  present  in  an  agreement,  remove  the  benefit  of  the  block  exemption  from  the 
entire agreement (hardcore restrictions); and (iii) specific types of restrictions that are not 
exempted but still allow for the remaining part of the vertical agreement to benefit from 
the  exemption,  as  long  as  it  is  severable  from  the  restrictive  clauses  (excluded 
restrictions). A block exemption regime that manages – by the means set out above – to 
minimise  false  positives  and  negatives  is,  on  the  one  hand,  simplifying  administration 
and reducing compliance costs as much as possible by avoiding under-exemption and, on 
the  other  hand,  ensuring  effective  supervision  of  the  markets  by  avoiding  over-
exemption. 

33   EEC  Council:  Regulation  No  17:  First  Regulation  implementing  Articles  85  and  86  of  the  Treaty.  OJ  13, 

21.2.1962. 

10 

 
 
                                                           
Third  specific  objective  -  providing  a  common  assessment  framework  for  national 
authorities:  The  decentralisation  of  the  application  of  Article  101(3)  of  the  Treaty, 
whereby  NCAs were empowered to  grant  exemptions,  gave  rise to  the need to ensure 
consistency  across  the  EU  and  equal  footing  for  companies  active  in  different 
Member States, by providing a common framework for NCAs and courts when applying 
Article 101(3) of the Treaty.  

Fourth  specific objective  - protecting certain forms  of  competition in  the motor vehicle 
sector: The need to protect certain forms of competition in the motor vehicle sector was 
most recently identified and deemed to be of continued validity by the Commission in its 
2009  Communication,  which  preceded  the  adoption  of  the  MVBER  regime  in  2010.  It 
listed seven specific policy objectives in  relation to  “a number of problematic issues”, 
which  at  that  time  were  “particularly  relevant  for  the  motor  vehicle  sector”,  and  stated 
that  such  policy  objectives  underlying  Regulation  (EC)  No  1400/2002  remained  valid. 
The  present  evaluation  includes  an  analysis  of  whether  each  of  these  specific  policy 
objectives  has  been  achieved  in  practice  and  to  what  extent  they  have  proven  to  be 
effective and/or necessary. The seven specific policy objectives include: (i) preventing 
foreclosure  of  competing  vehicle  manufacturers  and  safeguarding  their  access  to  the 
market;  (ii)  protecting  competition  between  dealers  of  the  same  brand;  (iii)  preventing 
restrictions  on  parallel  trade  in  motor  vehicles;  (iv)  enabling  independent  repairers  to 
compete  with  the  manufacturers'  networks  of  authorised  repairers;  (v)  protecting 
competition  between  repairers  of  the  same  brand;  (vi)  preventing  foreclosure  of  spare 
parts suppliers;  and (vii) preserving the deterrent effect  of Article 101 of the Treaty by 
preventing suppliers from indirectly using pressure and threats to achieve anticompetitive 
results.34 

34   These  objectives  are  restated  in  Annex  1  to  the  accompanying  impact  assessment  of  the  same  date  as  the 

Communication (22 July 2009). 

11 

 
 
 
 
 
 
 
                                                           
Figure 1: Intervention logic for the MVBER regime  

Needs  

•  Effectively supervise markets at the minimum administrative and compliance cost 
•  Provide legal certainty for undertakings’ self-assessment of compliance with Article 101 of the Treaty 
•  Provide a common framework for the application of Article 101 of the Treaty by NCAs and national courts 
•  Ensure low prices, high quality, variety and innovation in the automotive primary market and the aftermarkets 

Objectives 

•General objectives: 
•To preserve the deterrent effect of Article 101 of the Treaty by facilitating the enforcement work of the Commission, 

NCAs and national courts and to help businesses conduct the self-assessment of their vertical agreements 

• Specific objectives: 
• Provide  legal  certainty  to  stakeholders  in  the  automotive  sector  as  to  which  vertical  agreements  can  be  considered 

compliant with Article 101 of the Treaty 

• Reduce the risk of false positives and false negatives 
• Provide a common framework for the application of Article 101 of the Treaty by NCAs and national courts 
• Protect certain forms of competition in the automotive sector, in particular seven specific policy objectives: (i) prevent 
foreclosure  of  competing  vehicle  manufacturers  and  safeguard  their  access  to  the  market;  (ii)  protect  competition 
between  dealers  of  the  same  brand;  (iii)  prevent  restrictions  on  parallel  trade  in  motor  vehicles;  (iv)  enable 
independent repairers to compete with the manufacturers' networks of authorised repairers; (v) protect competition 
between  repairers  of  the  same    brand;  (vi)  prevent  foreclosure  of  spare  parts  suppliers;  and  (vii)  preserving  the 
deterrent  effect  of  Article  101  of  the  Treaty  by  preventing  suppliers  from  indirectly  using  pressure  and  threats  to 
achieve anticompetitive results 

Activities / input  

• Define conditions for exemption 
• Set out hardcore and excluded restrictions 
• Provide guidance on the application of Article 101 of the Treaty and of the block exemption provisions 

Output 

• Undertakings using the motor vehicle block exemption regime when carrying out their self-assessment of compliance 

with Article 101 of the Treaty 

• NCAs and national courts applying Article 101(3) of the Treaty based on the motor vehicle block exemption regime 

Results / impact  

• Increasing legal certainty to stakeholders in the automotive sector as to which vertical agreements can be considered 

compliant with Article 101 of the Treaty 

• Reducing the risk of errors in the form of false positives and false negatives 
• Providing a common MVBER framework for NCAs and national courts 
• Protecting certain forms of competition of the automotive sector  
• Preserving the deterrent effect of Article 101 of the Treaty by facilitating the enforcement work of the Commission, 

NCAs and national courts and helping businesses conduct the self-assessment of their vertical agreements 

External factors 

New market trends and technological developments, e.g., financial, debt and COVID-19 crises, rising 
protectionism, manufacturing over-capacity, electrification, technological innovation, changes in 
consumer behaviour and business model, closer integration of the internal market. 

12 

 
 
 
 
 
 
 
2.4  Evaluation baseline  

The main point of comparison for the evaluation is the hypothetical situation in which the 
MVBER regime is not in place. In this situation, vertical agreements in the motor vehicle 
sector would be subject  to  the same regime as  any other vertical  agreements,  including 
the  VBER  and  the  VGL.35  The  evaluation  therefore  looks  at  the  functioning  of  the 
MVBER regime as compared to a situation in which the assessment of whether vertical 
agreements in the motor vehicle sector comply with Article 101 of the Treaty would have 
to  be  done  only  in  light  of  other  Commission  rules,  namely  the  VBER  and  the  VGL, 
relevant  case  law  at  EU  and  national  level,  as  well  as  the  enforcement  practice  of  the 
Commission and the NCAs. 

3  EVALUATION QUESTIONS  

This evaluation assesses the MVBER regime against the five Better Regulation criteria, 
namely  effectiveness  (Section  6.1),  efficiency  (Section  6.2),  relevance  (Section  6.3), 
coherence (Section 6.4) and EU added value (Section 6.5), using the specific evaluation 
questions for each. The evaluation questions are in Annex 5. 

4  METHODOLOGY 

The evaluation consists of an assessment of the functioning of the MVBER regime both 
from  a  general  perspective,  taking  into  account  the  intervention  as  a  whole,  and  more 
specifically, with regard to the conditions set out in the MVBER regime. The subject of 
this evaluation is the MVBER, the SGL and the application of the VBER and the VGL to 
the motor vehicle sector. 

This  section  is  structured  as  follows:  Section  4.1  identifies  the  sources  used  for 
evaluating the  functioning of the MVBER  and the SGL. Section 4.2 describes how the 
evidence  gathered  from  various  sources  was  processed.  Section  4.3  explains  the 
limitations of the analysis carried out and the extent to which they were addressed in the 
evaluation exercise. 

4.1  Description and use of the sources  

In order to assess the functioning of the MVBER regime, evidence from various sources 
was  gathered.  These  included  a  public  consultation  (Section  4.1.1.),  two  NCA 
consultations (Section 4.1.2), an external study (Section 4.1.3), spontaneous stakeholder 
submissions (Section 4.1.4) and evidence gathered through other Commission initiatives 
(Section 4.1.5). 

35   For  further  details on  the  cost  of  assessing  vertical  agreements  under  the VBER  and VGL  see  Section 5.2.2 of 
Commission staff working document, Vertical Block Exemption Regulation, Brussels, 8 September 2020, SWD 
(2020) 173. 

13 

 
 
 
 
 
 
 
 
                                                           
4.1.1  Open public consultation  

Between  12  October  2020  and  25  January  2021,  the  Commission  carried  out  a  public 
consultation to gather stakeholder views on the functioning of the MVBER regime. The 
objective  was  to  gather  qualitative  and  quantitative  evidence  on  all  five  evaluation 
criteria  from  the  perspective  of  stakeholders.  The  consultation  was  initially  planned  to 
last  12  weeks  but  the  deadline  was  extended  by  three  weeks  to  accommodate  the 
COVID-19 outbreak difficulties.  

The  public  consultation  generated  84  contributions,  submitted  through  the  online 
questionnaire. Seventeen participating respondents also submitted position papers, which 
largely  echoed  the  issues  raised  in  the  contributions  to  the  public  consultation.  In 
addition, a consumer association provided some background articles outside of the public 
consultation framework. The contributions to the public consultation came from a variety 
of  respondents  representing  different  levels  of  the  supply  chain,  in  particular  business 
associations  and  companies/business  organisations,  but  also  motorists’  associations,  an 
academic institution, a non-governmental organisation, a trade union, an EU citizen, and 
some other stakeholders.  

The summary report of the contributions to the public consultation was published on both 
the  Better  Regulation  Portal36  and  the  dedicated  MVBER  review  webpage  on  DG 
Competition’s  website37  on  16  March  2021  and  17  March  2021  respectively.  This 
summary report is also part of the synopsis report provided in Annex 3.  

4.1.2  Targeted consultations of NCAs  

During  the  evaluation  phase,  two  targeted  consultations  of  NCAs  were  conducted.  The 
first  of  these  aimed  at  collecting  mostly  statistical  information  about  the  NCAs’ 
enforcement  activities  concerning  the  MVBER  regime.  The  Commission  received  29 
contributions, including one from one of the EFTA States. This consultation forms part 
of the synopsis report provided in Annex 4. The second questionnaire aimed to gather the 
NCAs’ views about the performance of the MVBER regime against the five evaluation 
criteria. The Commission received 24 contributions, including one from one of the EFTA 
States.  The  information  provided  by  NCAs  contributed  to  the  assessment  all  five 
evaluation  criteria. A summary  report of this second consultation  was published on the 
dedicated MVBER review webpage on DG Competition's website38 on 17 March 2021. It 
is also part of the synopsis report provided in Annex 3. 

36   See: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/2008-Evaluation-of-the-Motor-

Vehicle-Block-Exemption-Regulation/public-consultation 

37  See: https://ec.europa.eu/competition/sectors/motor_vehicles/legislation/mvber_review.html 
38   See: https://ec.europa.eu/competition/sectors/motor_vehicles/legislation/mvber_review.html  

14 

 
 
 
 
 
 
 
                                                           
4.1.3  External study  

A  contractor  carried  out  an  external  fact-finding  study  (“fact-finding  study”)  for  the 
evaluation  with  respect  to  the  three  aspects  of  the  motor  vehicle  sector:  (i)  the 
distribution of new motor vehicles; (ii) the provision of repair and maintenance services 
for motor vehicles; and (iii) the distribution of spare parts for motor vehicles. 

The purpose of the study was to provide a detailed analysis of market developments with 
respect to three main economic activities in the motor vehicle sector on the basis of 111 
indicators (23 qualitative and 88 quantitative). The final report for the study was due on 
25 August 2020, but the COVID crisis affected the implementation of the contract. This 
resulted  in:  (i)  a  delay  in  a  survey  the  contractor  carried  out  in  spring  2020  to  collect 
primary data from market participants; (ii) a low response rate to this survey; and (iii) an 
incomplete interim report. 

Due to  these circumstances, the contractor requested four deadline extensions  and, as a 
result, the final report was not delivered until 9 October 2020 and only covered 49 out of 
the  111  indicators  contracted  for.  A  summary  of  the  key  findings  of  this  report  is 
available in Annex 2. 

4.1.4  Commission monitoring and enforcement practice  

The evaluation included an analysis of the Commission’s decision-making practice over 
the last ten years, as well as its informal correspondence39 with stakeholders in the motor 
vehicle  sector  since  2010.  The  results  of  this  review  are  incorporated  into  the  synopsis 
report provided in Annex 4. 

4.1.5  Spontaneous stakeholder submissions 

The  Commission  also  received  a  spontaneous  submission  from  a  consumer  association 
that had not participated in the public consultation. In addition, some of the respondents 
shared position papers to  supplement their contributions  to the public consultation  with 
additional  evidence.  These  additional  submissions  were  used 
the 
understanding of the positions of the respondents concerned. 

to  enhance 

4.2  Processing and triangulating of the evidence collected 

Evidence  from  various  sources  was  analysed  and  triangulated  for  the  evaluation  of  the 
MVBER regime. 

39  

Informal  submissions  (sometimes  referred  to  as  “market  information  letters”)  differ  from  formal  complaints  in 
that  they  do  not  contain  the  information  required  by  “Form  C”  annexed  to  Commission  Regulation  773/2004. 
Moreover,  in  many  cases,  they  do  not  allege  particular  breaches  of  the  EU  competition  rules,  but  rather  ask 
questions relating to the qualification of a particular set of circumstances. 

15 

 
 
 
 
 
 
 
 
 
 
 
                                                           
The  main  sources  of  evidence  used  for  the  assessment  of  each  evaluation  criterion  are 
listed in the table below.40 The evidence-gathering focused primarily on evidence, views 
and  experiences  provided  by  stakeholders  having  self-assessed  the  compliance  of  their 
vertical agreements in the motor vehicle sector with Article 101 of the Treaty, as well as 
NCAs’ experience in the enforcement of the MVBER regime. This was supplemented by 
the Commission’s monitoring and enforcing experience and the findings of the study.  

Sources 

Public 
consultation 

Criteria 

Effectiveness 
✔ 
Efficiency 
✔ 
Relevance 
✔ 
Coherence 
✔ 
EU added value  ✔ 

NCA 
enforcement 
consultation  

NCA consultation 
on MVBER regime 
performance 

Study 

Commission’s 
experience 

✔ 
✔ 

✔ 
✔ 
✔ 
✔ 
✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

For  the  assessment  of  each  evaluation  criterion,  the  following  approach  was  used.  The 
assessment  started  with  the  results  of  the  public  consultation.  An  in-depth  analysis  of 
the  feedback  received  provided  a  preliminary  but  comprehensive  understanding  of  the 
main  issues  faced  by  stakeholders  as  regards  the  functioning  of  the  current  rules.  This 
allowed  the  Commission  services  to  establish  the  issues  on  which  stakeholders  held 
common  positions,  as  well  as  the  issues  on  which  their  positions  diverged.  The 
assessment of the specific issues raised was carried out based on: (i) the examples and the 
level of detail provided by stakeholders to support their concerns with concrete evidence; 
(ii)  the  variety  of  positions;  and  (iii)  the  extent  to  which  different  types  or  groups  of 
stakeholders  shared  the  same  view.  The  results  of  this  consultation  provided  the 
stakeholders’ perspective on the  effectiveness,  efficiency, relevance, coherence  and EU 
added value of the MVBER regime. The evaluation took due account of the fact that the 
views  of  businesses  operating  at  different  levels  of  the  supply  chain  might  differ  with 
regard to particular aspects of the MVBER regime. 

The  first  consultation  with  NCAs  aimed  to  gather  statistical  information  about  their 
enforcement activities with regards to vertical restraints in the motor vehicle sector. The 
second consultation aimed to  gather the NCAs’ perspective on the performance of the 
MVBER  regime  against  the  five  evaluation  criteria.  The  two  consultations  provided  a 
significant amount of evidence on the most common types of behaviour encountered, as 
well as the challenges faced by NCAs in applying the MVBER regime. The evidence of 
the public consultation was compared to and contrasted with the evidence resulting from 
the  consultation  of  the  NCAs.  The  combination  of  these  sources  resulted  in  a  more 
complete  and  balanced  understanding  of  the  areas  where  the  MVBER  regime  had  not 
been functioning well, or not functioning as well as it could.  

40   A further breakdown of this table, which includes the evaluation questions for each criterion and a more detailed 

reference to the sources used, is provided in the evaluation matrix contained in Annex 5. 

16 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
The  fact-finding  study  was  designed  to  analyse  market  developments  as  regards  three 
main economic  activities in  the motor vehicle sector. The study  allowed  to  supplement 
the  findings  obtained  through  the  abovementioned  consultations  with  specific  data  and 
evidence on how the motor vehicle sector has evolved during the period under review. 

Finally,  whenever  possible,  the  findings  of  the  respondents  and  NCAs  consultations  as 
well as the fact-finding study have been supplemented by the Commission’s monitoring 
and enforcement experience in the area over the last ten years. 

4.3  Limitations and robustness of findings 

The analysis of the different evaluation criteria, including the methodology applied and 
the  evidence  sources  used  for  that  purpose,  is  subject  to  the  following  limitations,  the 
nature of which is described in the sections below: the limited scope of the fact-finding 
study  (Section  4.3.1),  limits  to  the  representativeness  of  stakeholder  feedback  (Section 
4.3.2) and limits to the enforcement experience of NCAs as regards the MVBER regime 
(Section  4.3.3).  None  of  these  limitations  prevented  the  Commission  from  drawing 
conclusions from the evaluation exercise. 

4.3.1  Limited scope of the fact-finding study 

The contractor used a survey as the primary data source, the launch of which coincided 
with the escalation of the COVID-19 crisis and the introduction of “lockdown” measures 
in all countries covered by the survey. Although the Commission granted the contractor 
several deadline extensions, the final response rate was low, particularly with respect to 
businesses such as dealers, repairers and parts distributors. As for the methodology, the 
final dataset was assessed based on its representativeness with reference to the indicators.  

To  overcome  the  data-gathering  limitations,  the  contractor  considered  the  vehicle 
manufacturers’ responses in respect of each indicator to be statistically significant when 
their combined market  share reached 30%.  For spare parts, the contractor considered it 
impossible to establish the total value of the market, and instead provided indications of 
the  representativeness  of  the  responses  provided,  by  indicating  the  combined  global 
revenue in 2019 and the combined number of employees.  

4.3.2  Limits relating to stakeholder feedback 

By  definition,  feedback  exercises  such  as  the  public  consultation,  which  are  subject  to 
voluntary participation, do not necessarily lead to representative results. Although a large 
variety  of  stakeholder  groups  responded  to  the  public  consultation,  some  of  these 
accounted for a higher share of responses than others. 

In  the  assessment  in  Section  6  below,  reference  is  made  to  specific  stakeholder  groups 
whenever the views reported were expressed primarily by one or more such groups rather 

17 

 
 
 
 
 
 
 
 
 
 
than being shared by all respondents to the public consultation. However, the evaluation 
does not disregard diverging views, either within the same or across different stakeholder 
groups.  This  approach  is  also  reflected  in  Annex  6,  which  presents  the  different  views 
and issues raised by respondents per area of the rules.  

In addition, the assessment in Section 6 below is presented on the basis of the views of 
those  respondents  to  the  public  consultation  which  actually  gave  specific  replies  to  the 
questions  concerned.  This  means  that  the  views  of  those  respondents  replying  “don’t 
know”, “not applicable”, “not relevant” and similar, or leaving their replies blank, are not 
taken  into  account  where  general  conclusions  are  drawn.  With  regard  to  the  views  of 
NCAs, reference is made generically to “NCAs”, since the purpose is to outline the main 
points raised without regard to the number of contributions addressing a particular point, 
or  whether  or  not  a  particular  point  of  view  is  shared  by  all  the  NCAs.  However,  for 
issues on which NCAs expressed clearly diverging views, both sides of the argument are 
presented.  Finally,  conclusions  are  based  on  those  NCAs  that  expressed  a  view  on  a 
particular point, excluding therefore those indicating that they did  not  have a view and 
those that did not reply to a particular question.  

As for the contributions received from consumers and/or their associations, a consumer 
association  shared  some  materials  outside  of  the  framework  of  the  public  consultation, 
which  were  used  for  background  purposes  in  the  evaluation.  Two  other  associations 
identifying themselves as “consumer associations” responded to the public consultation. 
Analysis of the profile of these stakeholders showed that these appear to represent their 
motorist members rather than consumers in general, and they or their members also have 
commercial interests.  

This  limited  contribution  of  consumers  to  the  evaluation  is  probably  explained  by  two 
factors.  First,  the  MVBER  regime  has  a  technical  nature,  being  primarily  aimed  at 
providing guidance to businesses in the motor vehicles sector self-assessing compliance 
of  their  vertical  agreements  with  EU  competition  law.  Consumers  and  consumer 
associations may therefore be neither aware of the regime’s existence, nor familiar with 
the way it functions. Second, although the regime has an impact on the prices at which 
consumers buy products and services in the sector and on the choice of such products and 
services  available  to  them,  consumers  are  generally  not  aware  of  the  terms  of  vertical 
agreements  in  the  sector.  They  may  therefore  not  be  able  to  link  the  prices  and  other 
purchase conditions they encounter with the way that the supply chain functions, or to the 
safe  harbour  provided  by  the  MVBER  regime.  To  overcome  these  limitations,  ad  hoc 
meetings were held with stakeholders representing diverse interests. 

4.3.3  Limited experience in the enforcement of the MVBER regime 

The enforcement experience of both NCAs and the Commission as regards the MVBER 
regime  has  been  modest,  in  that  although  complaints  were  submitted  and  cases  were 
pursued, few infringements were detected. Over the period covered by the review, NCAs 

18 

 
 
 
 
 
 
have  reported  a  total  of  156  closed  cases  concerning  vertical  restraints  in  the  motor 
vehicle sector, of which 4% concluded with prohibition decisions. Over the same period, 
the Commission dealt with 22 cases, of which none resulted in a prohibition decision. To 
overcome these limitations, the Commission supplemented its enforcement practice with 
an analysis of the informal submissions concerning the automotive sector received over 
the last 10 years. 

5  MARKET DEVELOPMENTS AND ENFORCEMENT ACTIVITIES IN THE MOTOR VEHICLE 

SECTOR  

5.1  Market developments 

Section  5.1  describes  the  main  market  developments,  including  the  conditions  of 
competition, during the period under evaluation.  

5.1.1  General market developments  

Since the adoption of the current MVBER regime, the markets have evolved in a number 
of  ways,  mainly  due  to  the  introduction  of  new  technologies,  environmental  pressures 
and  the  aftershocks  of  the  2008  financial  crisis.  Notably,  the  sector  has  witnessed:  (i) 
rising  protectionism  as  regards  extra-EU  trade;41  (ii)  stricter  emissions  controls42  and 
policies  aimed  at  reducing  emissions  and  achieving  other  environmental  goals,  such  as 
the  EU  Sustainable  and  Smart  Mobility  Strategy43  and  the  Green  Deal;44  (iii)  major 
fluctuations  in  the  price  of  fossil  fuels;45  (iv)  the  introduction  of  high-performance 
battery electric vehicles and the more widespread use of hybrid technologies;46 (v) the so-
called  “Dieselgate”  crisis;47  (vi)  increasing  use  of  the  Internet  as  a  research  tool  for 
consumers  and  as  a  means  for  dealers  to  expand  their  geographic  reach;48  (vii)  a 
continued reduction in dealer network density;49 (viii) an evolution in vehicle typology, 
with more light commercial vehicles in use to reflect the internet-driven surge in home 
shopping and local distribution;50 (ix) the integration of digital technology into vehicles 
themselves,  and  the  increasing  importance  of  vehicle-generated  data  for  existing 

41   See: https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1765 
42   See: https://ec.europa.eu/growth/sectors/automotive/environment-protection/emissions_en 
43   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and 
Social Committee and the Committee of the Regions Sustainable and Smart Mobility Strategy – putting European 
transport on track for the future. COM/2020/789 final. 

44   Communication  from  the  Commission  to  the  European  Parliament,  the  European  council,  the  Council,  the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions:  The  European  Green  Deal. 
COM/2019/640. 

45   See: https://ec.europa.eu/energy/data-analysis/energy-prices-and-costs_en 
46   See: https://www.eea.europa.eu/data-and-maps/indicators/proportion-of-vehicle-fleet-meeting-5/assessment 
47   See: https://ec.europa.eu/growth/content/eu-actions-dieselgate_en 
48   See Section 5.1.1.3 and Section 2.1.5, Annex 2. 
49   See Section 5.1.1.3. 
50   See https://www.acea.be/automobile-industry/vans 

19 

 
 
 
 
                                                           
aftermarket  providers  and  for  novel  businesses;51  and  (x)  the  increasing  use  of 
connectivity,  first  for  emergency  services,  and  more  recently  for  monitoring  the 
performance of vehicles and drivers.52 

In the context of the evaluation, a  contractor carried out a fact-finding study to  analyse 
market developments with respect to: (i) the distribution of new motor vehicles: (ii) the 
provision  of  repair  and  maintenance  services;  and  (iii)  the  distribution  of  spare  parts.53 
The study collected data on a representative sample of 12 EU Member States,54 and four 
vehicle  categories  (passenger  cars,  light  commercial  vehicles,  trucks  and  buses)  for  the 
period 2007-2017 (“period in scope”).55 The main findings of the study are summarised 
below and complemented by other sources.56  

5.1.1.1  Motor vehicle production and sales 

The  motor  vehicle  industry  is  one  of  the  most  important  sectors  for  the  EU  economy. 
Manufacturing  of  motor  vehicles,  bodies,  trailers  and  semi-trailers  employs  around  2.5 
million people in the EU and accounts for 8.5% of EU employment in manufacturing,57 
while  another  5.3  million  jobs  relate  to  both  indirect  manufacturing,58  sales  and 
maintenance services.59  

The  EU  produced  almost  20  million  motor  vehicles  in  2017  (ca.  20%  of  almost  99 
million manufactured globally). Passenger cars accounted for 86.6% of all motor vehicle 
production.60  The  rest  was  made  up  of  light  commercial  vehicles  (10.8%)  and  medium 
and heavy commercial vehicles (2.8%). Almost 260 million passenger cars were in use in 
the EU in 2016, and more than 15 million were registered in the EU in 2017, of which 
49.4% were petrol-fueled, 44.8% diesel-fueled, and 1.5% electric.61 

51   https://ec.europa.eu/jrc/sites/jrcsh/files/jrc112634.pdf 
52   https://digital-strategy.ec.europa.eu/en/policies/connected-and-automated-mobility 
53   Ernst & Young, Market developments in the distribution of new motor vehicles and spare parts and the provision 
of after-sales  services under Regulation 461/2010 of 27 May 2010, November 2020. The figures in this section 
refer to the said study, unless specified otherwise. 

54   Austria, Belgium, Cyprus, France, Germany, Greece, Ireland, Italy, the Netherlands, Poland, Spain and the United 

Kingdom. 

55   As per paras. 3 and 9 of Tender Specifications, the contracted study “will describe how market conditions have 
evolved in the European Union (EU) and its Member States (MS) over defined time periods before and after the 
Regulation's entry into force “. The study “shall provide […] qualitative and quantitative indicators for the time 
period 2007-2017”. 

56   A more detailed overview of the study is provided in Annex 2. 
57   https://ec.europa.eu/growth/sectors/automotive_en 
58   Tyres,  computer  and  peripherals  equipment,  electric  motors,  generators  and  transformers,  bearing,  gearing, 

cooling and ventilation equipment. 

59   ACEA Pocket Guide 2018-2019, available at https://www.acea.be/publications/article/acea-pocket-guide 
60   ACEA Economic and Market Report EU Automotive Industry Quarter 4 2017. 
61  

Ibid.  

20 

 
 
 
 
 
 
                                                           
The  EU  is  a  major  player  in  terms  of  motor  vehicle  trade:  exports  accounted  for  more 
than EUR 138 billion in 2017, with a trade balance of EUR 90.3 billion.62 

According to the study, the sales of passenger cars, at aggregate level, dropped in 2008 
during  the  financial  crisis,  and  kept  decreasing  every  year  from  2009  to  2013.  Sales  in 
2017  reached  13.3  million  units  for  the  countries  in  scope:  4%  less  than  in  2007.  A 
similar trend affected light commercial vehicles and trucks, with 2017 sales respectively 
10.5%  and  13%  lower  than  in  2007.  Despite  some  fluctuations,  bus  sales  remained 
stable, with total sales in 2017 only 1% lower than in 2007 (24.8k vs. 25.1k).63 

5.1.1.2 Product Innovation 

According to the study, the use of alternative powertrains has gradually increased from a 
low base, with the proportion of fossil fuel-powered vehicles sold declining slightly over 
the years. In 2017, around 2 million (0.8%) of the 262 million cars registered in the EU 
Member  States  were  classified  as  either  electric  cars  or  hybrid  electric  cars  using  a 
combination  of  an  electric  motor  and  a  petrol  or  diesel  engine.  The  number  of  hybrid 
electric-petrol cars in 2017 (1.5 million) was almost seven times the number recorded in 
2013 (0.2 million).64 

Based  on  vehicle  manufacturers’  annual  reports,  the  study  indicates  that,  on  average, 
research  and  development  (R&D)  expenditure65  increased  over  the  period  in  scope  for 
both  manufacturers  of  passenger  cars/  light  commercial  vehicles  and  for  manufacturers 
making  trucks  and  buses  (respectively,  from  4.3%  in  2007  to  4.7%  in  2017  and  from 
3.1% in 2007 to 4.1% in 2017).  

5.1.1.3  Distribution patterns and network density 

The study shows that quantitative selective distribution66 was the preferred model in the 
passenger cars category. The only Member States where vehicle manufacturers opted for 
exclusive distribution systems were France and Italy (12.5% and 14.3%,  respectively in 
2017). According to the study, no vehicle manufacturer used purely qualitative selective 
distribution  for  passenger  cars  in  any  of  the  countries  in  scope.  Innovative  channels 

62   ACEA Pocket Guide 2018-2019, available at https://www.acea.be/publications/article/acea-pocket-guide 
63   A country level summary of these figures is provided in Annex 2. 
64   Source: Eurostat. 
65   As a percentage of overall revenues of selected vehicle manufacturers. 
66   A ‘selective distribution system’ is a distribution system where the supplier undertakes to sell the contract goods 
or services, either directly or indirectly, only to distributors selected on the basis of specified criteria and where 
these  distributors  undertake  not  to  sell  such  goods  or  services  to  unauthorised  distributors  within  the  territory 
reserved  by  the  supplier  to  operate  that  system  (See  Article  1(1)(i)  MVBER).  Purely  qualitative  selective 
distribution  selects  dealers  only  on  the  basis  of  objective  criteria  required  by  the  nature  of  the  product  such  as 
training of sales personnel, the service provided at the point of sale, a certain range of the products being sold etc. 
Quantitative selective distribution adds further criteria for selection that more directly limit the potential number 
of  dealers  by,  for  instance,  requiring  minimum  or  maximum  sales,  by  fixing  the  number  of  dealers,  etc.  (See 
paragraph 175 VGL). 

21 

 
 
 
 
 
 
 
                                                           
(mobile pop-up stores, supermarkets, experience centers, third party platforms) were used 
extensively for sales across the countries in scope.67 The study showed that there were no 
significant changes in these proportions across the period in scope.  

In contrast to the position as regards passenger cars, many vehicle manufacturers present 
in  the  (more  concentrated)  light  commercial  vehicle  category  used  qualitative  selective 
distribution  systems  (50%  in  Austria  and  Italy,  40%  in  France).  Quantitative  selective 
distribution was prevalent in Cyprus and the UK (66.7%), while 20% and 25% of vehicle 
manufacturers opted for exclusive distribution systems in Spain and Germany. 

Quantitative  selective  distribution  was  the  most  prevalent  distribution  method  used  for 
truck  distribution  over  the  period  covered  by  the  study.  However,  some  truck 
manufacturers opted for qualitative distribution systems in France (20%), Italy and Spain 
(16.7%),  while  a  variable  number  of  truck  manufacturers  opted  for  mixed  systems 
(notably  67%  in  Greece,  50%  in  the  Netherlands,  40%  in  Poland  and  Ireland).  These 
proportions  did  not  significantly  change  over  the  period  in  scope.  As  for  buses, 
manufacturers opted mainly for exclusive distribution systems. Direct sales formats were 
common for the sales of both trucks and buses. 

The number of car dealer groups across all Member States increased from 2007 to 2011 
then  gradually  declined  during  2011  –  2017,  leading  to  an  overall  decrease  over  the 
period  in  scope.  According  to  the  study,  this  result  can  be  attributed  to  a  consolidation 
trend between dealer groups. 

The  network  density  for  all  car  brands  in  analysis  declined  over  the  years.  Aggregate 
network density fell from 0.17 car outlets per 1,000 inhabitants in 2007 to 0.14 in 2017, 
continuing  the  decline  that  was  reported  in  the  Commission’s  evaluation  report  for 
Regulation  1400/2002.68  The  number  of  dealer  outlets  fell  to  57,304  outlets  in  2017, 
10,831 outlets fewer than in 2007. According to the study, vehicle manufacturers reduced 
the numbers of dealers in their networks to maintain dealer profitability and recover from 
the Eurozone crisis.  Rising real  estate prices  in  inner cities were also  a  factor affecting 
the  number  of  dealer  outlets.  The  fall  in  outlet  numbers  took  place  against  the 
background of emerging retail trends such as online car sales, growing demand for used 
cars and fleet services and “immersive” virtual retail experiences.69 

67   The  low  rate  of  survey  responses  on  distribution  systems  and  innovative  channels  does  not  allow  to  make 

intertemporal comparisons. 

stores  and  virtual 

68   https://ec.europa.eu/competition/sectors/motor_vehicles/documents/evaluation_report_en.pdf, p. 3. 
69   EY  analysis  (Automotive  Retail  &  Distribution,  October  2015);  “The  traditional  car  dealer  is  disappearing: 
flagship 
Insider,  December  2016, 
the  new 
https://www.businessinsider.nl/auto-dealer-bmw-audi-virtual-reality-flagshipstore/ , accessed on 25 August 2020; 
“UK  franchised  dealer  outlet  numbers  grow  year  on  year,”  Motor  Trader,  https://www.motortrader.com/motor-
trader-news/automotive-news/uk-franchised-dealer-outlet-numbers-grow-year-year-30-10-2015  ,  accessed  on  25 
August  2020;  “Auto:  the  crisis  has  reduced  the  number  of  dealerships,”  Les  Echos,  August  2014, 
https://www.lesechos.fr/2014/08/auto-la-crise-a-reduit-le-nombrede-concessions-308291 , accessed on 25 August 
2020. 

trends,”  Business 

reality  are 

22 

 
 
 
 
 
                                                           
5.1.1.4  Provision of repair and maintenance services 

Repair and maintenance services are provided by both independent firms and members of 
authorised networks set up by a vehicle or parts manufacturers.70  

The  total  turnover  generated  by  the  maintenance  and  repair  of  motor  vehicles,  for  all 
categories in all countries in scope increased from EUR 106 billion in 2008 to EUR 145 
billion in 2017. This figure should be appraised in the context of the increased size (from 
197 to 225 million) and age of passenger cars parc.71  

By  2017,  the  market  for  maintenance  and  repair  had  experienced  significant  growth 
compared to the position in 2008, particularly in the United Kingdom (+211% by 2017), 
Germany (+161%) and  France (+148%). Out of all the countries in  scope, 5 reported a 
decline  in  the  total  value  of  the  market  for  repair  and  maintenance  services,  with  the 
biggest such occurring in Greece (-69% in 2017 compared to 2008).  

In  terms  of  network  density,  the  total  number  of  repairers,  both  authorised  and 
independent, increased in most countries between 2007 and 2017, with Cyprus, Greece, 
Ireland, Italy, Poland and Spain having a denser network compared to the other countries, 
and the Netherlands having the lowest network density.  

5.1.1.5  Distribution of spare parts 

According to the study, the market for spare parts supply (part manufacturers’ sales) for 
the 12 countries  in  scope increased by 29.8% in  terms  of sales value, from  EUR 160.5 
billion in 2008 to EUR 208.4 billion in 2017. This increase was not continuous over the 
years:  in  particular,  market  size  decreased  by  25.4%  in  2009,  as  a  result  of  the  2008 
economic  crisis.  Over  the  2007-2017  period,  parts  manufacturers  registered  a  stable 
operating  margin,  averaging  around  6-7%  despite  a  decrease  in  2009.  For  the  top  10 
firms, the average margin was higher at around 11-15%. 

As for motor vehicle spare parts distributors, their business grew by about 26% according 
to the study, with a volatile trend in all countries throughout the period 2007-2017. 

Based on survey  responses, the study showed that  passenger cars and light  commercial 
vehicle parts were mainly distributed using qualitative selective distribution systems and, 
to  a  minor  extent,  through  vehicle  manufacturers’  own  outlets.  A  number  of  survey 

70   The  study  findings  are  mostly  based  on  data  provided  by  passenger  cars  authorised  repairer,  given  the  lack  of 

sufficient data for the other categories. 

71   According to the study, passenger cars parc’s average age increased in all the countries in scope apart from Spain 
and Poland. Significant differences exist at country level: Italy registered the highest increase in the average age; 
Poland,  which  has  the  oldest  car  parc  among  the  countries  in  scope,  registered  a  slight  reduction.  The  general 
increasing trend seems to continue since 2017 (See ACEA, https://www.acea.be/statistics/article/average-vehicle-
age): this can be due to many reasons, like, for instance, the effect of financial crisis, longer duration of car loans, 
higher reliability of recent cars. 

23 

 
 
 
 
 
 
 
 
 
                                                           
respondents  used  innovative  distribution  channels  for  spare  parts  sales;  in  particular, 
parts manufacturers used their own websites for ecommerce, and by 2012, direct sales of 
spare parts had increased for all vehicle categories.72 

5.1.2  Developments in the conditions of competition73 

5.1.2.1  Market concentration  

The fact-finding study also analysed market concentration levels in the various segments 
by using metrics such as the Herfindahl-Hirshman Index (HHI), the CR4 index, as well 
as indexes of volatility (standard deviation and coefficient of variation).  

The  passenger  car  category  has  medium  concentration,  with  Volkswagen  Group,  PSA 
group and Renault-Nissan-Mitsubishi representing around 55% of the average aggregated 
market share in terms of volume. The average percentage difference in the market shares 
of  the  top  four  manufacturers  decreased,  at  an  aggregate  level,  from  5.91%  in  2007  to 
5.47%  in  2017.  Some  shifts  occurred  in  the  market  shares  of  the  significant 
manufacturers  throughout  the  period  in  scope:  the  distance  between  the  third  (Renault-
Nissan-Mitsubishi)  and  second  (PSA  Group)  vehicle  manufacturers  decreased,  mainly 
due  to  the  decrease  in  sales  of  the  latter,  while  the  share  of  the  4th  to  the  9th  largest 
vehicle  manufacturer  (“VM”)  remained  relatively  stable,  and  the  difference  in  market 
share between the 4th and the 6th decreased over time. 

The light commercial vehicles category was assessed as more concentrated than that for 
passenger  cars,  with  three  vehicle  manufacturers  (PSA  Group,  Renault-Nissan-
Mitsubishi and Ford Group) representing more than half of the market in terms of sales 
in  the  countries  in  scope.  During  the  period  2007-2017,  the  sales  of  PSA  Group  and 
Renault-Nissan-Mitsubishi  remained  relatively  stable,  while  some  significant  changes 
occurred  for  the  other  manufacturers  (accounting  for  approximately  52.1%  of  the 
market). In particular, Ford Group shifted from 5th in 2011 to 3rd place in 2017. In terms 
of  closeness  of  competition,  the  average  difference  among  the  top  4  manufacturers 
decreased over time from 6.19% to 4.97%. 

The truck and bus  categories were found to be highly concentrated. At aggregate level, 
five  vehicle  manufacturers  represented  more  than  97%  of  the  total  volume  in  sales  for 
trucks. Three main vehicle manufacturers represented more than 67% of total bus sales, 
while  a  significant  portion  (around  20%)  of  the  market  was  covered  by  small  local 
manufacturers. 

72   Results based on the responses of ten part manufacturers, jointly representing EUR 168 billion in global sales and 

817,000 employees (2019). 

73   The  findings  described  in  this  section  are  also  taken  into  account  for  the  evaluation  of  the  effectiveness  and 

relevance of the MVBER regime.  

24 

 
 
 
 
 
 
 
 
                                                           
Although  there  was  no  major  consolidation,  mergers  and  acquisitions  occurred  in  the 
motor vehicle sector during the period covered by the study, the largest in value  being, 
for  passenger  cars,  the  acquisition  of  Porsche  by  Volkswagen  Group  (2009  and  2012) 
and  the  acquisition  of  Land  Rover  by  Tata  Motors  in  2008.  In  the  heavy-duty  vehicles 
sector,  the  largest  acquisition  was  that  of  MAN  SE  by  Volkswagen  in  2011.  Finally, 
since the period covered by the study, PSA and FCA have merged to create Stellantis.  

5.1.2.2  Intensity of competition 

Respondents to the public consultation and NCAs shared their perceptions as to whether 
competition  has  intensified, weakened or stayed  the same since 2010 in  the three  areas 
covered by the MVBER regime.  

A  large  majority  of  respondents  to  the  public  consultation  reported  changes  in  the 
intensity  of  competition  in  the  distribution  of  new  motor  vehicles.  Almost  40%  of 
respondents suggested that competition had intensified. Some of these pointed, inter alia, 
to:  (i)  the  increased  number  of  brands  of  motor  vehicles  in  the  EU  market;  (ii)  the 
increased  use  of  direct  sales  by  vehicle  manufacturers;  (iii)  the  increased  diversity  in 
terms of product variety (e.g., hybrid, plug-in hybrid, battery electric); (iv) the increased 
offer in some technologies (e.g., powertrain technology); (v) the multiple sales channels; 
(vi)  the  diversification  in  vehicle  use  (e.g.,  leasing,  sharing  or  renting);  and  (vii)  the 
increased  leverage  of  fleet  operators.  Around  36%  of  respondents  to  the  public 
consultation suggested that competition had  decreased.74 Some of these supported their 
views by pointing to consolidation between OEMs, as well as mergers and takeovers of 
dealers.75 

As for the  NCAs, about  40% of them reported that the intensity of competition for the 
distribution of new vehicles had not changed significantly over the last 10 years. Those 
NCAs that reported an increase (31%) in competition intensity agreed with respondents 
to the public consultation that the wider range of vehicles available on the market and the 
increased  use  of  multiple  sales  channels,  such  as  internet  platforms  enabling  price 
comparisons, have played a role in this intensification of competition. Some NCAs also 
pointed to other factors such as the increase in demand for new motor vehicles following 
the 2010 financial crisis and the decrease in the number of complaints received by NCAs. 
Only 13% of the NCAs reported a decrease in the intensity of competition. These NCAs 
point  to  the  abolition  of the  previously-applicable  motor  vehicle  block  exemption  rules 
(i.e., Regulation 1400/2002) as the alleged cause. The remaining 16% of the NCAs did 
not express a view.  

74   Primarily,  associations  representing  vehicle  importers  and  part  dealers,  but  also  companies  (mainly  vehicle 

leasing/rental companies and repairers). 

75   For further details on the views of respondents on these issues, see Annex 3. 

25 

 
 
 
 
 
 
                                                           
The  fact-finding  study  mentioned  above  uncovered  some  elements  pointing  towards  an 
increase in the intensity of competition in the distribution of new passenger cars. Despite 
the financial crisis, the demand for new vehicles has grown since 2013; new distribution 
channels, business models and players have started emerging, further stimulating demand 
and  reaching  new  customer  segments;  several  new  models  have  been  launched  by  car 
manufacturers that are new to the market (especially Asian) and alternative powertrains 
for  passenger  cars  have  been  developed.  The  study  highlights  that  passenger  cars 
category  is  a  sector  of  medium  concentration,  unlike  the  light  commercial  vehicles, 
trucks  and  buses  categories,  which  are  more  concentrated.76  These  three  categories, 
however,  witnessed  considerable  market  share  fluctuations,  with  the  main  vehicle 
manufacturers  shifting  positions  over  the  period  in  scope,  thus  suggesting  that 
competition intensity has not decreased over the years.  

The views of respondents to the public consultation are divided as to the evolution of the 
intensity of competition in repair and maintenance services, with 44.6% considering 
that  competition  had  intensified  and  44.6%  considering  the  opposite.  Some  of  the 
respondents claiming that competition has intensified referred to  a number of factors to 
justify their views, such as (i) e-commerce; (ii) the VBER/MVBER rules; (iii) growth in 
the business  of independent  aftermarket  operators;  (iv) on-line reviews  of repairers and 
more  price  transparency;  (vi)  authorised  repairers’  provision  of  aftersales  services  for 
several  brands;  (vii)  an  increase  in  competition  between  authorised  and  non-authorised 
repairers; and (viii) pressure from leasing / rental companies, which are alleged to wish to 
build  their  own  service  networks.  The  group  of  respondents  claiming  that  competition 
had  weakened  pointed,  inter  alia,  at  (i)  the  decreasing  number  of  repairers  in  some 
European  regions;  (ii)  issues  faced  in  accessing  technical  information;  (iii)  restrictive 
warranty  terms;  (iv)  captive  spare  parts  and  requirements  to  activate  spare  parts  after 
installation;  (iv)  restrictions  on  access  to  tools,  diagnostic  systems,  digital  updates  and 
software; and (vi) technological developments in new vehicles making it harder for small 
independent repairers to provide their services effectively and affordably.  

NCAs are also divided as to the evolution of the intensity of competition in the provision 
of repair and maintenance services. About 35% of the NCAs reported that the intensity of 
competition  for the repair and maintenance services  had  not  changed significantly over 
the  last  10  years.  The  same  percentage  reported  that  competition  had  increased.  NCAs 
claiming that competition had intensified referred to the following factors to justify their 
views: (i) the MVBER regime having reduced the “monopoly” of authorised repairers / 
distributors and consequent intensified competition between authorised and independent 
service providers; and (ii) the 2010 financial crisis having greatly increased the demand 
for repair  and maintenance services, as consumers had a greater tendency to  pay  repair 
bills  rather  than  purchasing  a  new  vehicle.  NCAs  reporting  a  decrease  (22%)  in  the 
intensity of competition in the provision of repair and maintenance services attributed the 

76   Based on HHI index. See Section 2.1.4, Annex 2 for more details. 

26 

 
 
 
                                                           
 
changes  mainly  to  mergers  between  players,  changes  in  consumer  preferences  and 
technological developments. These NCAs also reported that insurance companies tended 
to  favour  repairs  in  authorised  repair  garages,  making  it  more  difficult  for  independent 
service  providers  to  compete.  Finally,  they  indicated  that,  due  to  the  increased 
complexity of modern vehicles independent  repairers  are forced to  focus on the simple 
mechanical  operations  that  are  decreasing  in  frequency,  while  more  complex  and 
software related operations are becoming more common.  

The fact-finding study shows that the size of market for repair and maintenance services 
increased during the period in scope, which can be linked to the increased size and age of 
the  passenger  car  parc.  The  study  also  shows  a  trend  towards  a  decrease  in  network 
density,  which  can  be  due  to  several  factors,  including  the  continuing  trend  observed 
toward rationalisation and consolidation of vehicle manufacturers’ networks. 

As  for  the  intensity  of  competition  in  spare  parts  distribution,  a  large  majority  of 
respondents to the public consultation believe that this has changed, with 54% reporting 
an  increase  in  competition.  Some  of  the  latter  pointed,  inter  alia,  at:  (i)  the  positive 
impact of the MVBER; (ii) the growth of e-commerce, which boosts price competition; 
(iii) the increasing demand for remanufactured/recycled parts; and (iv) the fact that new 
players had entered the EU parts distribution market (e.g., LKQ). In contrast, about 44% 
of the NCAs reported that the area had not undergone major changes in the intensity of 
competition  over the last ten  years, while 22% believed that  competition  had  generally 
intensified. The latter nonetheless cautioned that, as a result of the increased connectivity 
of modern vehicles, more spare parts need to be registered with the vehicle’s embarked 
software,  which  may  constitute  a  risk  to  competition  in  the  distribution  of  spare  parts. 
Finally,  only  4%  of  NCAs  reported  a  decrease  in  the  intensity  of  competition  in  spare 
parts distribution. 

The  fact-finding  study  shows  a  growth  in  terms  of  sales  value  of  the  business  of  both 
parts manufacturers and distributors over the period 2007-2017, which can be linked to 
the increase in the average age of  vehicles and their growing complexity. Vehicle parts 
supply appears in  general  to  be a profitable business  which, mainly towards the end of 
the  period  in  scope,  is  also  increasingly  taking  advantage  of  innovative  distribution 
channels  (in  particular  e-commerce  through  own  websites  or  third-party  platforms)  for 
spare parts distribution. Taking into account the limitations of the study and the elements 
collected  through  other  sources,  the  overall  picture  suggests  that  the  intensity  of 
competition in spare parts distribution did not decrease during the period in scope. 

Against this background, it can be concluded that the intensity of competition seems to 
have  increased  between  2007  and  2017  in  the  distribution  of  new  passenger  cars,  but 
remained  moderate  for  the  distribution  of  light  commercial  vehicles,  buses  and  trucks. 
The evidence  collected  for repair and maintenance services  and spare parts distribution 
shows a mixed picture as data from the fact-finding study is not conclusive and views of 
stakeholders point in different directions.  

27 

 
 
 
 
 
5.1.3  Enforcement of the Commission and NCAs regarding vertical restriction in 

the motor vehicle sector 

Section 5.1.3 presents an overview of the enforcement activities of the Commission and 
NCAs regarding vertical restrictions in the motor vehicle sector.  

5.1.3.1  The Commission’s enforcement and monitoring action regarding vertical 

restrictions in the motor vehicle sector 

Between 2010 and 2020, the Commission did not adopt any prohibition or commitments 
decisions concerning vertical restraints in the motor vehicle sector. This is not to say that 
the  Commission  did  not  encounter  allegations;  rather,  these  complaints  indicated,  at 
most, only a limited likelihood of the Commission finding a breach of Article 101 of the 
Treaty  

In  particular,  during  this  period,  the  Commission  received  22  formal  complaints 
concerning  a  variety  of  issues  relating  to  vertical  agreements  in  the  sector,77  but 
considered  that  none  of  these  complaints  were  suitable  for  pursuit.78  Two  of  the 
Commission’s  rejection  decisions  regarding  these  complaints  were  subject  to  appeals 
before the General Court. One of the decisions was upheld on appeal.79 The other appeal 
is currently pending80 before the General Court.   

In addition to formal complaints, as part of its monitoring and enforcement activities in 
the  sector,  the  Commission  deals  with  informal  correspondence/  submissions  from 
stakeholders.  Between  2010  and  October  2020,  it  dealt  with  around  600  such  informal 
submissions.81  In  a  relatively  small  number  of  these  cases,  the  initial  informal 
correspondence evolved into a formal complaint. For about 28% of correspondence, the 
Commission  found  no  indications  of  potential  infringement  that  would  justify  pursuing 
an  investigation,  while  in  26%,  it  provided  clarification  or  guidance.82  The  largest 
proportion  of  these  informal  submissions  concerned  the  distribution  of  new  motor 

77   See Annex 4. 
78   This led to 8 rejection letters under Article 7(1) of Regulation 773/2004, 12 rejection decisions under Article 7(2) 
of  Regulation  773/2004,  1  rejection  pursuant  to  Article  13  of  Regulation  1/2003  and  Article  9  of  Regulation 
773/2004, and 1 rejection pursuant Article 13 of Regulation 1/2003 and Article 7 (2) of Regulation 773/2004. 

79   Case T-531/18 LL-Carpenter s. r. o. v Commission. 
80   Case T-743/20 Car-Master 2 v Commission. 
81   The statistics provided exclude submissions that were deemed to be completely outside DG Competition’s remit. 
82   Further,  in  10%  of  the  instances,  the  correspondents  provided  information  without  requesting  action  from  the 
Commission, while in respect of 8% of the correspondence, the Commission found that the information provided 
was  insufficient  to  reach  any  conclusions.  In  a  further  8%  of  the  cases,  there  was  no  follow  up  by  the 
correspondent.  In  7%  of  the  submissions,  the  problem  was  addressed  by  informal  means.  In  6%  of  the 
submissions, the matter concerned a contractual issue. About 3% of the submissions were found to have no inter-
state  element,  and  2%  of  the  correspondence  was  referred  or  re-allocated  to  other  DGs  of  the  Commission. 
Finally, 1% of the submissions are still pending and a further 1% evolved into formal complaints. 

28 

 
 
 
 
 
 
 
                                                           
vehicles, followed by the provision of repair and maintenance, and then the distribution 
of spare parts.  

5.1.3.2  NCA enforcement and policy actions regarding vertical restrictions  

Between 2010 and 2020, NCAs from the Member States, the UK and Norway received 
142 complaints and started 25 ex officio procedures related to the motor vehicle sector. 
More than 90% of these cases were closed during the period under analysis, with only 11 
cases still ongoing.83 

A  large  majority  of  the  cases  (97)  did  not  lead  to  a  formal  decision  and  were  closed 
administratively,  primarily  due  to  absence  of  sufficient  evidence  or  lack  of  priority. 
Three cases were administratively closed by providing guidance to the complainants. In 
33 cases, the NCAs issued rejection decisions, primarily because they could not establish 
an infringement. In 19 cases, the NCAs issued commitment decisions, but none of these 
imposed financial or other types of penalties on their addressees. In six cases, the NCAs 
issued prohibition decisions; all of these decisions imposed either financial or other types 
of  penalties  on  the  addressees.  In  addition,  the  Belgian  NCA  was  the  only  competition 
authority that reported having adopted a decision imposing interim measures in the motor 
vehicle  sector  in  the  period  under  analysis.84  Finally,  during  the  period  concerned, 
Austria,  Ireland  and  Latvia  and  Norway  issued  national  guidance  papers  concerning 
vertical restraints in the motor vehicle sector. For Austria and Ireland, these are part of 
their general guidelines on vertical restraints. 

6  THE EVALUATION CRITERIA  

Against the background of Section 5, Section 6 evaluates the MVBER in the light of the 
five evaluation criteria.  

6.1  Effectiveness 

1.  What  is  the  level  of  legal  certainty  that  the  MVBER  regime  provides  for 
undertakings  assessing  whether  vertical  agreements  in  the  motor  vehicle  sector 
and/or  specific  clauses/restrictions  are  exempted  from  the  application  of  Article 
101 of the Treaty and thus compliant with this provision? 

What is the issue? 

As the function of the MVBER regime is to provide a safe harbour for certain categories 
of  vertical  agreements  in  the  motor  vehicle  sector,  by  nature,  one  of  its  specific 
objectives  is  to  give  legal  certainty  to  stakeholders,  making  it  easier  for  them  to 
perform  the  self-assessment  required  by  the  wider  competition  law  framework.  To 

83   See Annex 4. 
84   Decision no. BMA-2014-V / M-14 of July 11, 2014. 

29 

 
 
 
  
 
 
 
 
                                                           
provide  legal  certainty,  the  conditions  for  exemption  must  be  set  out  in  a  clear  and 
comprehensible manner, allowing stakeholders to understand them and how they apply to 
their  agreements.  Nonetheless,  the  analysis  of  whether  this  objective  has  been  met  is 
predicated  on  the  understanding  that  the  MVBER  regime  could  never  provide  absolute 
legal certainty. Instead, the assessment of whether this objective has been achieved seeks 
to  determine  whether  the  MVBER  regime  rules  provided  increased  legal  certainty  as 
compared to a situation without them, but also whether there is room for improvement in 
achieving the objective.  

The  MVBER  regime  covers  a  sector  within  which  business  models,  agreements  and 
restrictions  change  over  time.  When  setting  the  conditions  for  the  exemption,  it  is  thus 
not possible to predict exactly how markets will evolve and the types of restrictions that 
may  appear.  Therefore,  to  ensure  that  the  exemption  remained  future-proof,  the 
Commission had to set conditions that required some interpretation in their application to 
specific  cases.  Moreover,  even  though  the  SGL  and  VGL  were  intended  to  provide 
additional  guidance  on  how  to  apply  the  MVBER,  the  VBER  and  Article  101  of  the 
Treaty to the motor vehicle sector, for the same reasons, they could not have been made 
so  exhaustive  as  to  anticipate  every  possible  market  development,  or  every  type  of 
agreement or restriction that could conceivably have emerged. 

Finally, individual respondents’ assessment of the level of legal certainty provided by the 
rules may also depend on the specific difficulties they encounter when applying the rules 
to  agreements  in  the  particular  field  in  which  they  are  active  within  the  overall  motor 
vehicle  sector.  Therefore,  the  assessment  pursuant  to  this  objective  takes  into 
consideration  the  specific  areas  of  the  rules  for  which  respondents  and  NCAs  consider 
that  there  is  uncertainty  as  well  as  the  Commission’s  enforcing  and  monitoring 
experience and the findings of the study. 

What are the findings? 

A  majority  of  respondents  to  the  public  consultation85  consider  that  the  MVBER 
regime  has  achieved  its  aim  of  providing  legal  certainty.  Similarly,  NCAs  are 
generally  of  the  view  that  the  MVBER  has  provided  a  helpful  framework  for 
companies (and advisors) to self-assess compliance with Article 101 of the Treaty while 
also reducing the risk for a divergent application of Article 101 of the Treaty, and adding 
legal certainty for companies operating in more than one Member State.  

Despite  the  general  view  that  the  MVBER  regime  has  provided  legal  certainty, 
respondents  to  the  public  consultation,  from  different  stakeholders’  groups,  point  to 
some  areas  of  the  rules  which  they  consider  not  sufficiently  clear.  In  this  sense, 
definitions such as “vertical agreements”,86 “agency agreements”,87 “subcontracting”88 or 

85   See Annex 3 and Annex 6. 
86   Article 1(1)(a) VBER, paragraphs 24-26 VGL and Article 1(1)(a) MVBER. 

30 

 
 
 
 
 
 
                                                           
“tool”89 are seen by a significant share of respondents as providing little legal certainty. 
Similarly,  a  considerable  number  of  respondents90  perceive  that  certain  hardcore 
restrictions such as: (i) the restriction on the ability of suppliers of parts/tools/equipment 
to  sell  to  authorised  and  independent  repairers,  distributors  or  end  users;91  (ii)  the 
restriction of original equipment suppliers’(OES) ability to sell spare parts to end users or 
repairers;92 and (iii) the restriction of dealers ability to sell motor vehicles spare parts to 
other dealers within the same distribution system93 provide little legal certainty.  

Some replies94 to the public consultation also suggest that the provisions that deal with a 
number  of  specific  vertical  restraints  may  provide  insufficient  legal  certainty.  In 
particular, these submissions refer to: (i) the restriction on independent operators’ access 
to  technical  information;95  (ii)  placing  limits  in  the  numbers  of  authorised  repairers 
within a brand network;96 and (iii) the misuse of warranties97 have provided little or very 
little  legal  certainty.  With  regard  to  point  (ii),  it  should  be  noted  that  the  fact-finding 
study98  confirms  that  vehicle  manufacturers  use  a  combination  of  distribution  systems 
that  took  into  account  the  caveats  set  up  in  the  MVBER.  In  particular,  vehicle 
manufacturers  preferred  quantitative  distribution  systems  in  the  medium  concentrated 
passenger car category, whereas qualitative distribution systems were mostly used in the 
more concentrated light commercial vehicle category.  

A few NCAs are also of the view that further clarifications and guidance on some rules 
would be welcomed. They also pointed to the fact that recent market developments, new 
business models and new technologies should also be considered. A few NCAs felt the 
need  for  further  clarifications  as  regards  the  definitions  of  “vertical  agreements”,99 
“agency  agreements”,100  “selective  distribution”,101  “non-compete  obligation”,102 

87   Paragraphs 12-17 VGL. 
88   Paragraph 22 VGL and Paragraph 23 SGL. 
89   Paragraph 68 SGL. 
90   43%  of  respondents  in  the  case  of  the  restriction  on  the  ability  of  suppliers  of  parts/tools/equipment  to  sell  to 
authorised and independent repairers, distributors or end users; 37% in the case of the restriction of OES ability to 
sell  spare  parts  to  end  users  or  repairers;  and  23%  in  the  case  of  the  restriction  of  dealers  ability  to  sell  motor 
vehicles spare parts to other dealers within the same distribution system. 

91   Article 5(b) MVBER. 
92   Article 4(e) VBER and paragraph 59 VGL. 
93   Article 4(d) VBER and paragraph 59 VGL. 
94    32% and 6% of respondents considered the provisions on access to technical information to provide little and very 
little  legal  certainty  respectively.  35%  and  8%  of  respondents  considered  the  provisions  on  the  limits  in  the 
numbers of authorised repairers within a brand network to provide little and very little legal certainty respectively. 
20% and 8% of respondents considered the provisions on misuse of warranties provide little and very little legal 
certainty respectively. 
95   Paragraphs 62-68 SGL. 
96   Paragraph 70 SGL. 
97   Paragraph 69 SGL. 
98   See Section 5.1.1. 
99   Article 1(1)(a) VBER, paragraphs 24-26 VGL and Article 1(1)(a) MVBER. 
100   Paragraphs 12-17 VGL. 
101   Article 1(1)(e) VBER and Article 1(1)(i) MVBER.  

31 

 
 
                                                                                                                                                                            
“intermediary”,103  “spare  parts”104  and  “connected  undertaking”.105  A  considerable 
number  of  NCAs  perceived  certain  provisions  on  specific  vertical  restraints,  such  as 
those  dealing  with  independent  operators’  access  to  technical  (repair  and  maintenance) 
information,106  and  the  misuse  by  suppliers  of  vehicle  warranties107  as  providing  little 
legal certainty. Similarly, a few NCAs indicated that the hardcore restriction concerning 
resale price maintenance108 provide little legal certainty. In addition, few NCAs suggest 
integrating  the  recent  case  law  in  relation  to  vertical  restraints  into  the  respective 
provisions to increase legal certainty.  

Finally, the MVBER regime appears to have made it easier for NCAs and national courts 
to apply the rules consistently by providing a common framework for the application 
of Article 101 of the Treaty.109 Respondents and NCAs suggest that national guidance, 
enforcement practice of NCAs and relevant national case-law could not have been more 
than or as effective as the MVBER regime. Nevertheless, few NCAs note that the rules 
might be difficult to understand for those who are not legal experts, since five different 
documents110 have to be taken into account and the wording can be highly technical. In 
this regard, only one NCA notes that it should be discussed whether the VBER and the 
MVBER should be merged. However, if the motor vehicle rules were to be incorporated 
in  the  VBER  regime,  the  NCA  notes  the  following  points:  (i)  including  sector  specific 
rules  in  the  VBER  and  the  VGL  might  increase  the  length  and  complexity  of  these 
documents; (ii) other sectors might also ask for sector-specific rules in the VBER regime; 
and  (iii)  the  strong  signaling  effect  of  the  MVBER  regime  on  the  sector  might  be 
reduced.  Therefore,  it  appears  that  merging  both  instruments  would  not  automatically 
increase legal certainty for NCAs.  

Based  on  the  Commission’s  monitoring  and  enforcing  experience,  the  MVBER 
regime  appears  to  have  provided  a  high  degree  of  legal  certainty.  In  particular,  the 
Commission  has  received  – informally  -  relatively  few questions111 as  to  how the rules 
should  be  interpreted,  and  none  of  the  formal  complaints  that  it  has  received  and 
subsequently  rejected  concerning  vertical  agreements  in  this  sector  hinged  on  a 
misunderstanding of the substantive rules.  

102   Article 1(1)(d) VBER. 
103   Paragraph 52 SGL. 
104   Article 1(1)(h) MVBER. 
105   Article 1(2) VBER and Article 1(2) MVBER 
106   Paragraphs 62-68 SGL. 
107   Paragraph 69 SGL. 
108   Article 4(a) VBER. 
109   The third specific objective (i.e., to provide a common framework for the application of Article 101 of the Treaty) 

was treated in the questionnaires to the public and NCAs consultation under the EU added value criterion. 

110   VBER, MVBER, VGL, SGL and the FAQs. 
111   About 14% of the informal submission received by the Commission between 2010 and 2020 concerned general 

questions on the applicability of the MVBER regime. 

32 

 
 
 
 
                                                                                                                                                                            
Overall, respondents to the public consultation as well as NCAs consider the MVBER 
regime to  have  generally met the specific  objective of increasing  legal certainty for 
companies  and  NCAs  and  national  courts  as  compared  to  a  situation  without  the 
MVBER regime. In general, the MVBER regime is considered to be a useful instrument 
that  has  increased  legal  certainty  as  compared  to  a  situation  without  it.  The  MVBER 
regime also appears to have made it easier for the relevant authorities to apply the rules 
consistently  and,  therefore,  to  have  met  the  specific  objective  of  facilitating  the 
enforcement work of NCAs and courts, and the self-assessment of vertical agreements, 
by  providing  a  common  framework  for  the  application  of  Article  101  of  the  Treaty. 
Nevertheless,  it  appears  that  certain  provisions:    (i)  may  benefit  from  further 
clarifications;  (ii)  may  be  difficult  to  apply  or;  (iii)  may  not  take  into  account  recent 
market developments. 

2.  To what extent do the conditions currently defined in the MVBER regime meet 
the objective of only exempting those agreements for which it can be assumed 
with  sufficient  degree  of  certainty  that  they  generate  efficiencies  in  line  with 
Article 101(3) of the Treaty?  

What is the issue? 

The  safe  harbour  provided  by  the  MVBER  regime  is  limited  by  the  Empowerment 
Regulation  of  1965,  which  only  authorises  the  Commission  to  block  exempt  those 
agreements  for  which  it  can  be  assumed  with  sufficient  certainty  that  they  satisfy  the 
conditions  of  Article  101(3)  of  the  Treaty.  In  this  regard,  the  Commission  must  pay 
particular attention to avoiding false positives, this is exempting agreements for which it 
cannot  be  assumed  with  sufficient  certainty  that  they  satisfy  the  conditions  of  Article 
101(3) of the Treaty (over-exemption). At the same time, the Commission also seeks to 
avoid false negatives, which result in a situation where the respective vertical agreement 
or practice is not block exempted despite fulfilling the conditions of Article 101(3) of the 
Treaty  (under-exemption).  A  false  negative  increases  the  burden  for  businesses  when 
self-assessing the compliance of their agreements with Article 101 of the Treaty, as they 
have  to  perform  an  extended  individual  assessment,  instead  of  being  able  to  rely  on  a 
simpler set of rules (i.e., the MVBER regime). In light of the above, it has been assessed 
to  what  extent  the  MVBER  regime  has  correctly  drawn  the  line  when  setting  out  the 
conditions  that  vertical  agreements  need  to  meet  in  order  to  benefit  from  the  block 
exemption.  

The conditions  to  take into account  when assessing this specific objective are those set 
out in Articles 3 to 5 VBER and Article 5 MVBER. These include firstly the conditions 
to  be  met  by  all  agreements:  namely,  the  market  share  threshold  below  which  the 
exemption is granted112 and the hardcore restrictions that remove the benefit of the block 

112   Article 3 VBER. 

33 

 
 
 
 
 
                                                           
exemption  for  the  whole  agreement.113  Secondly,  the  conditions  include  certain 
restrictions  excluded  under  the  VBER,  to  which  the  block  exemption  does  not  apply, 
although  the  remainder  of  the  agreement  in  which  they  are  contained  may  still  be 
exempted.114 The VGL and the SGL are also relevant for this assessment insofar as they 
provide  additional  guidance  on  the  interpretation  of  the  respective  provisions  of  the 
VBER and MVBER. 

What are the findings? 

Article  3  VBER  provides  that  the  exemption  shall  only  apply  on  condition  that  the 
market share of the supplier and the buyer concerned do not exceed the threshold of 30%. 
A  majority  of  respondents  and  NCAs  believe  this  market  share  threshold  to  be 
appropriate  for  vertical  agreements  in  the  motor  vehicle  sector.  Some  respondents 
and  a  few  NCAs  however  pointed  to  potential  false  positives  and  false  negatives  as 
regards the level of the market share threshold. Those views are outlined below: 

-  As  for  potential  false  positives  (over-exemption),  some  respondents115  argued 
that  the  current  threshold  may  be  too  high,  pointing  out  that  very  few  players 
actually exceed 30% market shares.  

Some respondents drew a distinction between the distribution of new cars and the 
aftermarket  sectors.  This  group  mentioned  that  while  the  30%  threshold  still 
seemed appropriate for the market of distribution of new cars, for the aftermarket 
the current approach of calculating market share for each brand separately means 
that, in practice, the threshold has little effect, since few agreements fall below it. 
A  few  NCAs  noted  that  the  current  threshold  is  too  high  with  regards  to  the 
market for new motor vehicles, as for certain countries and segments the market 
is  very  fragmented,  meaning  that  all  agreements  fall  below  the  market  share 
threshold. 

-  As  for  potential  false  negatives  (under-exemption),  a  few  respondents  to  the 
public consultation considered the threshold to be too low.116 In this regard, they 
pointed out, for example, that if (i) the market for repair and maintenance (insofar 
as  it  is  separate  from  the  market  for  the  sale  of  new  motor  vehicles)  were 
considered to be brand-specific; and (ii) the market shares of authorised repairers 
(even  if  legally  they  are  separate  companies)  were  attributed  to  vehicle 
manufacturers  or  if  these  were  used  as  a  proxy  for  the  position  of  vehicle 

113   Article 4 VBER and Article 5 MVBER. 
114   Article 5 VBER. 
115   Around  28%.  Primarily,  associations  representing  parts  dealers  and  manufacturers,  but  also  companies  (mainly 

part dealers and repairers). 

116   Around  5%.  Associations  representing  vehicle  manufacturers,  dealers  and  importers,  a  vehicle  importer  and  a 

company active in the mineral-oil market. 

34 

 
 
 
 
 
 
                                                           
manufacturers on the upstream market, the majority of agreements for repair and 
maintenance  and  spare  parts  distribution  would  fall  outside  the  exemption. 
Similarly,  a few NCAs  noted that the threshold  may be  too  low, at  least for the 
provision  of  repair  and  maintenance  services  and  for  the  distribution  of  spare 
parts. 

In the Commission’s monitoring and enforcement experience, 30% has proven itself 
to be a market share threshold below which it can be presumed with sufficient certainty 
that agreements  will satisfy the conditions  of Article 101(3) of the Treaty. To date, the 
Commission has not identified any category of agreements that are unable to benefit from 
the  exemption  because  of  the  parties’  market  share,  but  which  are  relatively 
unproblematic in terms of competition; the identification of such a category would have 
been an indication that the threshold was set too low. Nor has it found any elements that 
have  led  it  to  consider  withdrawing  the  exemption  from  any  agreement  or  category  of 
agreements  in  the  motor  vehicle  sector,  which  is  an  indication  that  the  exemption 
threshold is not set too high.117 

Article 4 VBER and Article 5 MVBER provide for a list of hardcore restrictions. These 
are particularly severe restrictions which inclusion in an agreement implies that the latter 
cannot  benefit  from  the  block  exemption  under  the  MVBER  regime.  As  regards  these 
provisions,  a  majority  of  respondents  to  the  public  consultation  and  NCAs  do  not 
indicate  having  encountered  other  types  of  vertical  restrictions  beyond  those 
currently  included  in  the  VBER  and  MVBER  which  should  be  considered  severe 
restrictions of competition. 

At the same time, a significant share of respondents118 and a few NCAs reported that they 
had  encountered  restrictions  that  should  be  qualified  as  hardcore,  thereby  identifying  a 
number  of  potential  false  positives.  The  following  in  particular  were  identified:  (i) 
restrictions  on  access  to  technical  information  and  in-vehicle  data  for  aftermarket 
operators;  (ii)  direct  or  indirect  quantitative  criteria  for  access  to  authorised  networks; 
(iii)  requiring  the  use  of  vehicle  manufacturer-branded  spare  parts  in  respect  of 
replacements that are not covered by the terms of the warranty; (iv) bundling sales and 
aftersales  markets;  (v)  refusing  to  license  certain  rights  necessary  to  allow  suppliers  to 
offer spare parts to the independent channel; (vi) restrictions on the sale of brands from 
different suppliers;  and (vii) restrictions that  were included in  Article 4.2119 and Article 

117   Article 29(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on 
competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003 gives the Commission the power to 
withdraw  the  benefit  of  the  exemption  from  certain  categories  of  agreements  where  it  finds  effects  which  are 
incompatible with Article 101(3) of the Treaty. 

118   Around  41%.  Although  the  profile  of  respondents  replying  in  this  sense  is  very  diverse,  none  of  the  vehicle 

manufacturers associations participating in the consultation replied affirmatively to this question.  

119   This Article provided that the exemption would not apply “where the supplier of motor vehicles refuses to give 
independent operators access to any technical information, diagnostic and other equipment, tools, including any 
relevant  software,  or  training  required  for  the  repair  and  maintenance  of  these  motor  vehicles  or  for  the 
implementation of environmental protection measures”. 

35 

 
 
 
 
                                                           
4.1.(k)120 of Regulation 1400/2002. Based on their enforcement experience, a few NCAs 
also  pointed  to  refusals  by  OEMs  to  give  independent  repairers  access  to  technical 
information  as  a  potential  additional  hardcore  clause.  A  few  NCAs  suggested  that  in 
practice  the  inclusion  of  such  a  clause  might  not  have  real  effects,  since  for  passenger 
cars at least, most repair agreements may not benefit from block exemption in any event, 
due to the high market shares of the members of the authorised networks. Nevertheless, a 
few  NCAs  considered  that  listing  this  provision  as  a  hardcore  restriction  could  have  a 
signaling effect on the market for the provision of repair and maintenance services.  

In  addition,  a  majority  of  NCAs  and  respondents  to  the  public  consultation  did  not 
consider that there were any restrictions currently listed in Article 4 VBER and Article 5 
MVBER  that  should  not  be  included  in  this  list.  In  general  therefore,  the  majority  of 
NCAs and respondents to the public consultation did not consider that the current 
lists  of  hardcore  restrictions  created  a  risk  of  false  negatives.  Despite  this  general 
view, there were however a few respondents to the public consultation - mainly vehicle 
manufacturers  -  that considered that some of the restrictions that  are currently listed  as 
hardcore  should  not  be  considered  as  such.  The  main  concern  expressed  in  this  regard 
related to resale price maintenance.121  

Finally, Article 5 VBER provides for a list of excluded restrictions. The presence of these 
restrictions in a vertical agreement does not imply the loss of the exemption for the entire 
agreement  but  only  for  the  particular  clauses  that  qualify  as  excluded  restrictions.  The 
majority  of  respondents  to  the  public  consultation  and  NCAs  saw  the  current  list  of 
excluded  restrictions  contained  in  Article  5  VBER  as  appropriate.  This  means  that 
overall, no risks of false positives or false negatives were identified in this regard.  

The  Commission’s  monitoring  and  enforcing  experience  in  the  motor  vehicle  sector 
has not led it to identify any need for additional hardcore or excluded restrictions. 

The evidence gathered in the evaluation suggests that the MVBER regime has generally 
met the specific objective of avoiding false positives and false negatives. This means 
that: (i) the MVBER regime generally does not exempt agreements for which it cannot 
be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of 
the Treaty; and (ii) the MVBER regime does not fail to exempt agreements that could 
be exempted, respectively. This being said, with regard to specific points, a few NCAs 
and  some  respondents  to  the  public  consultation  mentioned  additional  practices  that 

120   “The restriction of a distributor's or authorised repairer's ability to obtain original spare parts or spare parts of 
matching quality from a third undertaking of its choice and to use them for the repair or maintenance of motor 
vehicles, without prejudice to the ability of a supplier of new motor vehicles to require the use of original spare 
parts supplied by it for repairs carried out under warranty, free servicing and vehicle recall work” 

121   According  to  these  respondents,  although  RPM  is  currently  permitted  when  new  products  are  launched, 
companies  applying  RPM  in  this  manner  run  the  risk  of  losing  the  exemption  for  their  entire  agreement  if  the 
Commission finds that on the facts, the RPM in question is caught by the hardcore provision. In their view, this 
allegedly creates a disincentive for VMs to use RPM in these cases even though it may lead to efficiencies. For 
further details see Annex 3. 

36 

 
 
 
 
 
                                                           
could be considered as hardcore restrictions. 

3.  To what extent has the MVBER regime contributed to protecting competition in 

certain dimensions of the motor vehicle sector?  

What is the issue? 

As  explained  in  Section  2.3,  in  the  2009  Communication  that  preceded  the  entry  into 
force  of  the  current  MVBER  regime,  the  Commission  identified  certain  problematic 
dimensions  of  competition  in  the  motor  vehicle  sector  which  were  considered  to  be  of 
particular relevance for the future. These specific policy objectives122 are englobed by the 
fourth  specific  objective  of  the  MVBER  regime:  protecting  competition  in  certain 
dimensions  of  the  motor  vehicle  sector  (see  Section  2.3).  Against  this  background,  the 
evaluation  analyses  whether the  seven specific policy objectives  identified in  the 2009 
Communication have been achieved. 

What are the findings? 

1.  Preventing foreclosure of competing vehicle manufacturers and safeguarding 

their access to the market 

In  the  2009  Communication,  the  Commission  found  that  in  certain  circumstances, 
restrictions in distribution agreements - especially the widespread use of single-branding 
clauses123  in  motor  vehicle  distribution  agreements  entered  into  between  suppliers  and 
distributors  -  might  make  it  unduly  difficult  for  competing  vehicle  manufacturers  to 
access  the  retail  and/or  repair  market.  To  ensure  that  inter-brand  competition  was  not 
undermined,  the  Commission  stressed  the  need  to  preserve  the  ability  of  competing 
vehicle manufacturers to enter the market and/or expand their market presence. 

Overall, respondents to the public consultation124 and NCAs were of the view that 
full  or  partial  progress  had  been  made  in  terms  of  enabling  competing  vehicle 
manufacturers to enter the market and / or expand their market presence. Indeed, 
only a few respondents to the public consultation expressed the view that this objective 
had not been achieved. None of the respondents replying that this objective had not been 

122   Namely:  (i)  preventing  foreclosure  of  competing  vehicle  manufacturers  and  safeguarding  their  access  to  the 
market;  (ii)  protecting  competition  between  dealers  of  the  same  brand;  (iii)  preventing  restrictions  on  parallel 
trade  in  motor  vehicles;  (iv)  enabling  independent  repairers  to  compete  with  the  manufacturers'  networks  of 
authorised repairers; (v) protecting competition between repairers of the same brand; (vi) preventing foreclosure 
of  spare  parts  suppliers;  and  (vii)  preserving  the  deterrent  effect  of  Article  101  of  the  Treaty  by  preventing 
suppliers from indirectly using pressure and threats to achieve anticompetitive results. 

123   Under a single branding clause, the buyer is obliged or induced to concentrate his orders for a particular type of 

product on one brand. 
124   See Annexes 3 and 6. 

37 

 
 
 
 
 
 
 
 
                                                           
achieved  or  had  only  partially  been  achieved  provided  specific  explanations  for  their 
positions. Of the NCAs, only a few considered that the objective had been only partially 
achieved or not achieved at all. The latter pointed to the alleged lack of new players in 
certain national markets or to the lack of growth of existing markets to justify their reply. 
Similarly, at the NCA level, only 1% of all the complaints received by NCAs were filed 
by vehicle manufacturers. 

The  fact-finding  study  showed  that  inter-brand  competition  was  fairly  present  at 
least  in  the  passenger  cars  and  light  commercial  vehicles  segments  in  the  period 
under  review  (2007-2017).  In  the  same  vein,  the  study  also  showed  that  no  passenger 
car  manufacturer  appears  to  have  had  particularly  strong  market  power  in  any  of  the 
countries  in  scope.  The  passenger  cars  segment  can  be  classified  as  having  medium 
levels  of  concentration.  Over the period under  review, the market shares of the players 
fluctuated  considerably,  which  can  be  an  indication  of  a  competitive  market.  As  with 
passenger cars, the light commercial vehicle category reported fluctuating market shares 
over the period in scope. Despite being a more concentrated segment than passenger cars, 
no manufacturers held particularly strong market power during the period covered by the 
study. It should however be noted that after the period covered by the study, two major 
manufacturers  of  light  commercial  vehicles  -  FCA  and  PSA  –  merged  to  create  a  new 
company named Stellantis,125 implying that at the date of the evaluation, concentration in 
this segment will have increased compared to the position at the time of the study. In the 
trucks  category,  in  terms  of  sales,  all  main  manufacturer  groups  registered  a  decrease 
during the period 2007-2017, although some shifts in market positions took place during 
the same period. Finally, the bus category appears to have suffered less from the crisis, 
with  an  overall  minor  sales  decrease.  As  with  trucks,  the  bus  sector  is  also  highly 
concentrated.  

When  looking  at  innovation,  the  fact-finding  study  highlighted  that,  on  average,  R&D 
expenditure  as  a  percentage  of  revenue  remained  rather  stable  for  passenger  cars  and 
light commercial vehicles, while it increased throughout the years for buses and trucks, 
despite the serious economic crisis that affected the sector in 2008/2009. 

In  line  with  the  views  of  respondents  and  the  fact-finding  study,  the  Commission’s 
monitoring and enforcement experience indicates that this specific policy objective 
has  been  largely  achieved.  In  particular,  it  points  to  inter-brand  competition  for  new 
passenger  cars  in  the  EU  being  healthy.  In  contrast,  the  truck  and  bus  sectors  have 
traditionally  been  more  concentrated.  It  should  also  be  noted  that  the  markets  for  light 
commercial  vehicles  (and  the  concentration  levels  thereon)  have  recently  been 
particularly  affected  by  the  merger  of  FCA  and  PSA,  which  calls  for  monitoring  this 
markets particularly carefully in the future.  

125   M.9730 FCA / PSA. 

38 

 
 
 
 
 
                                                           
Over the period covered by this evaluation, based on the Commission’s experience, there 
are no indications that manufacturers have found it particularly difficult to access the EU 
motor vehicle markets,  either by  entering, or by  expanding their presence. Only one of 
the  22  formal  complaints  received  by  the  Commission  between  2010  and  2020  was 
lodged  by  a  vehicle  manufacturer  /  national  importer,  and  only  3%  of  the  informal 
submissions to the Commission were filed by this type of stakeholder. Moreover, it does 
not appear that a vehicle manufacturers operating in other parts of the world would have 
attempted to enter / expand their presence in the EU markets, but being stymied by the 
existence of mono-brand sales networks.126  

In light of the above, it appears that overall, the specific policy objective of preventing 
foreclosure of competing vehicle manufacturers and safeguarding their access to the 
market has been either fully or partially achieved.  

2.  Protecting competition between dealers of the same brand  

New  motor  vehicles  are  almost  entirely  distributed  through  the  vehicle  manufacturers' 
authorised  networks.  By  exempting  vertical  agreements  providing  for  quantitative 
selective  distribution  or  exclusive  distribution  so  long  as  the  market  share  threshold  of 
30%  is  not  exceeded  and  that  no  hardcore  restrictions  are  included  therein,127  the 
MVBER regime allows suppliers that do not have significant market power to limit the 
numbers of the firms authorised to distribute their products. In its 2009 Communication, 
the Commission considered that there was a danger that intra-brand competition could be 
undermined,  particularly  in  a  context  where  new  vehicles  were  distributed  through 
dealers with near-identical business models. It was therefore considered that there was a 
need  to  protect  price  competition  between  dealers  of  the  same  brand  and  to  encourage 
diversity in distribution formats. 

NCAs  and  respondents  to  the  public  consultation128  were  generally  of  the  view  of 
that  full  or  partial  progress  had  been  made  in  terms  of  protecting  competition 
between dealers of the same brand. Only some respondents and a small share of NCAs 
considered  that  this  objective  had  not  been  achieved.  These  NCAs  reported  that  the 
increasing  consolidation  between dealers combined with  a  growing presence of vehicle 
manufacturers-owned  outlets  (this  trend  being  also  echoed  by  some  respondents  to  the 
public consultation), rigid remuneration systems and sales campaigns left little room for 
effective competition in the distribution of new vehicles. In the same vein, these NCAs 
also reported a trend towards direct distribution by OEMs when it comes to new motor 
vehicles, with dealers acting as delivery and configuration points. The increase in direct 

126   The  fact-finding  study  shows  that  some  non-European  vehicle  manufacturers  entered  the  EU  market  after  2007 
(Tesla  Motors)  while  others  expanded  their  market  presence  during  the  observation  (Mahindra  Group  and  Tata 
Group), see Annex 2.  

127   Paragraph 46 SGL and paragraph 152 VGL. 
128   See Annexes 3 and 6. 

39 

 
 
 
 
 
                                                           
sales by vehicle manufacturers has also been indicated as a relevant factor by a number 
of respondents  - mainly  dealers  - to  the  public consultation.  Finally, some respondents, 
mainly  dealers,  argued  that  intra-brand  competition  has  decreased  due  to,  among  other 
things, the removal of the sector-specific block exemption from agreements for new car 
sales  which,  in  their  view,  has  increased  the  dependence  of  dealers  on  vehicle 
manufacturers.  

The  fact-finding  study  showed  that  intra-brand  competition  did  not  decrease 
significantly over the period in scope, at least  as far as passenger cars are concerned. 
The study did not provide indications in this respect as regards light commercial vehicles, 
or trucks and buses. 

The  fact-finding  study  has  shown  that  the  density  of  all  passenger  car  manufacturers’ 
authorised networks decreased over the period 2007-2017, although in differing fashion, 
depending upon the brand. In general, the greatest reductions in density over the period 
affected brands like Renault, Dacia, Peugeot and Citroën, which had a relatively denser 
dealer  network  in  2007.  Other  brands,  like  Nissan  and  Toyota,  whose  network  was 
already  less  dense  than  the  average,  reported  a  smaller  decrease  in  density.  The  study 
provides  limited  input  concerning  market  concentration  of  dealers.  However,  based  on 
survey  results,  the  average  percentage  difference  in  market  shares  of  the  top  three 
passenger  car  dealers  reported  many  fluctuations  year  over  year,  with  an  overall  slight 
increase of this figure for seven out of 11 countries.  

Based on survey results, the study showed a certain homogeneity of the models used by 
vehicle  manufacturers  for  the  distribution  of  passenger  cars  and  trucks,  in  that  vehicle 
manufacturers  opted  mainly  for  quantitative  selective  distribution  systems.  There  was 
more  diversity  in  the  distribution  of  light  commercial  vehicles,  where  qualitative  and 
quantitative distribution models were evenly spread across each of the countries in scope. 
Exclusive  distribution  systems  seem  to  be  the  preferred  system  for  bus  distribution, 
although a certain diversity can also be observed in this category. 

In light of the study’s findings, the observed slight decline in aggregate network density 
for passenger cars and the increase in market concentration appear to have been moderate 
overall, considering the effects of the financial crisis and the observed trend of network 
rationalisation and consolidation of dealer groups. Moreover, a certain diversification of 
distribution systems was also observed, albeit without significant changes in the way that 
the different systems were used at country level.  

The Commission’s  monitoring and enforcement experience indicates that the need 
to protect dealers of the same brand has largely been met, a finding which is in line 
with  the  views  of  respondents  to  the  public  consultation  and  the  fact-finding  study.  Its 
experience is that the homogeneity in distribution formats observed prior to 2010 is still 
present  in  the  markets  in  2021,  and  in  particular  it  notes  that  the  vast  majority  of 
passenger  cars  continue  to  be  distributed  through  quantitative  selective  distribution 

40 

 
 
 
 
 
 
networks, as confirmed by the findings of the study. It has also observed the density of 
these networks declining over the period covered by this evaluation, which represents a 
continuation of the trend observed at the time of its last review of the MVBER regime129 
and  is  confirmed  by  the  findings  of  the  fact-finding  study.130  On  the  other  hand,  its 
experience  is  that  consumers  are  increasingly  using  the  Internet  to  shop  around  for 
vehicles, and that this is extending the geographic reach of individual authorised dealers. 
Finally, over the period since the MVBER regime was adopted, the Commission has not 
pursued any cases demonstrating that suppliers had put barriers in the way of intra-brand 
competition,  for  instance  via  resale  price  maintenance.  Sixteen  out  of  the  22  formal 
complaints  received  between  2010  and  2020  were  submitted  by  authorised  dealers  (or 
repairers),  but  all  of  them  were  rejected.131  There  were  two  informal  submissions 
including  allegations  of  restrictions  to  access  authorised  dealers’  networks  that  turned 
into  formal  complaints,132  however,  one  of  them  was  rejected  and  the  Commission’s 
decision was upheld by the EU General Court133 and the other was withdrawn.134  

In light of the above, it appears that overall, the specific policy objective of protecting 
competition  between  dealers  of  the  same  brand  has  been  partially  or  even  fully 
achieved. 

3.  Preventing restrictions on parallel trade in motor vehicles 

In  its  2009  Communication,  the  Commission  found  that  the  protection  of  cross-border 
trade  had  enabled  consumers  to  shop  within  the  Single  Market  and  take  advantage  of 
price  differentials  between  Member  States.  There  was  thus  a  need  to  ensure  that  this 
continued to be the case and that distribution agreements did not restrict parallel trade. 

Overall, both NCAs and respondents135 to the public consultation were of the view 
that  full  or  partial  progress  had  been  made  in  terms  of  preventing  restrictions  of 
parallel  trade  in  motor  vehicles.  Some  NCAs  even  reported  that  cross-border 
competition had intensified slightly. This being said, some NCAs reported a tendency to 
prevent cross-border sales via indirect means (e.g., by shortening the warranty period in 
certain Member States or “accidentally” failing to provide the registration document for 
the  end  consumer).  These  NCAs  reported  that  since  car  sales  margins  are  low,  and 

129   See Section III of Commission Evaluation Report on the operation of Regulation (EC) N° 1400/2002 concerning 

motor vehicle distribution and servicing, May 2008. 

130   See Section 5.1. 
131   One of the rejections (AT.40665) concerned a complaint filed by a Polish car dealer against Toyota Motor Poland 
with  regard  to  a  refusal  to  access  the  authorised  network  of  the  latter.  The  decision  is  currently  under  appeal 
before the EU General Court, T-743/20 - Car-Master 2 v Commission. 

132   The first one was a complaint from a company in the Czech Republic that had seen it application to become an 
authorised distributor of Subaru motor vehicles rejected, while the second one was a complaint against a vehicle 
manufacturer for not allowing its authorised dealers to sell certain type of cars to certain consumers. 

133   Case T-531/18 - LL-Carpenter v Commission. 
134   The complaint was not made public.  
135   For further details on the comments of respondents and NCAs see Annexes 3 and 6. 

41 

 
 
 
 
 
                                                           
dealers  make  much  of  their  profit  from  repair  and  maintenance  on  cars  that  they  have 
sold  locally,  they  have  few  incentives  to  sell  to  consumers  resident  in  other  Member 
States. It is also worth noting that, only one of the decisions issued by NCAs finding an 
infringement of competition involved parallel trade restrictions. 

This position seems to be supported by the fact that only 8% of the respondents to the 
public  consultation  declared  to  have  encountered  restrictions  of  authorised  dealers’ 
ability to sell motor vehicles or spare parts in other Member States in their agreements. 
In contrast to the overall picture, a few respondents raised concerns that the EU Single 
Market  had  been  segmented  into  national  markets,  thereby  obstructing  any  real  EU-
wide  competition;  and  that  intra-brand  competition  between  dealers  only  existed  at 
national level. 

The Commission's monitoring and enforcement experience also points in the direction 
that  the  objective  of  preventing  obstacles  to  parallel  trade  and  largely  enabling 
consumers to purchase vehicles in other Member States has, at least in part, been met. 
Although the Commission has had substantial volumes of correspondence136 on this issue 
since  the  current  MVBER  regime  was  adopted,  and  9%  of  the  formal  complaints  filed 
with  the Commission contained allegations regarding restrictions on cross-border trade, 
this  has  not  allowed  it  to  detect  any  substantial  obstructions  on  the  part  of  suppliers. 
More  concretely,  the  Commission  has  not  had  cause  to  adopt  any  decision  similar  to 
those pursued in the early 2000s.137  

In light of the above, it appears that overall the specific policy objective of preventing 
restrictions  on  parallel  trade  in  motor  vehicles  has  been  either  fully  or  partially 
achieved.  

4.  Enabling independent repairers to compete with the manufacturers' networks of 

authorised repairers 

In  its  2009  Communication,  the  Commission  observed  that  independent  repairers 
provided  consumers  with  an  alternative  channel  for  the  upkeep  of  their  motor  vehicles 
and were a source of vital competitive pressure, as their business models and their related 
operating  costs  were  different  from  those  in  the  authorised  networks.  Independent 
repairers’ ability to compete depended on unrestricted access to essential inputs such as 
spare parts and technical information.  It was thus necessary to safeguard this access, as 
well as to  prevent  other  indirect  means  from  affecting independent  repairers’ positions, 
such  as  the  misuse  of  warranties  by  vehicle  manufacturers  and/or  their  authorised 
repairers.   

136   About 25% of the informal submission received by the Commission since 2010 concerned restrictions of parallel 

trade.  

137    Case  IV/35.733  –  VW  Case  COMP/36.653  -  Opel,  Case  COMP/F-2/36.693  -  Volkswagen,  and  Case 

COMP/36.264 - Mercedes‑ Benz.  

42 

 
 
 
 
 
 
                                                           
The  evaluation  shows  that  the  majority  of  respondents  to  the  public  consultation 
and  NCAs  considered  that  this  objective  had  been  partially  achieved  and  some 
respondents  and  NCAs  considered  it  to  have  been  even  fully  achieved.138  Despite  the 
general  views,  based  on  their  enforcement  experience,  some  NCAs  report  difficulties 
for  independent  repairers  to  obtain  timely  access  to  spare  parts  and  to  information 
relevant  for  the  provision  of  aftersales  services  -  notably  repair  and  maintenance  - 
persisted  and  that  this  may  become  more  important  in  the  future  as  result  of  the 
increasing digitalisation of motor vehicles. This is also echoed by some respondents to 
the public consultation, which flagged (i) difficulties accessing OEM-branded (captive) 
parts,  in  particular  from  independent  distributors;  (ii)  limitations  on  independent 
publishers’  access  to  full  /  up-to-date  technical  information;  and  (iii)  restrictions  on 
access to in-vehicle data and security-related functions. 

Moreover,  some  NCAs  reported  that  as  result  of  the  increase  in  complexity  of  motor 
vehicles  authorised  repairers  gained  an  advantage  over  their  independent  competitors, 
forcing  the  latter  to  focus  mainly  on  simple  mechanical  operations.  Similarly,  some 
respondents  to  the  public  consultation  noted  restrictions  on  access  to  aftermarket 
diagnostics  technologies,  which  allegedly  leads  to  independent  repairers  being  mainly 
focused on basic repairs / common maintenance, while more sophisticated interventions 
are  conducted  by  authorised  repairers.  Some  NCAs  suggested  that  the  transition  to 
electric and hybrid vehicles may reinforce these trends.  

Further  to  the  above,  some  respondents  argued  that  the  misuse  of  warranties  leads 
consumers  towards  the  authorised  repair  networks.  In  this  regard,  NCAs  indicated  that 
consumers do not often ask independent repairers to provide services in the first part of 
the life cycle of vehicles (e.g., the period covered by warranty) as certain conducts (e.g., 
complex  warranty  conditions,  long  warranty  periods)  direct  customers  towards 
authorised  repairers.  Finally,  some  NCAs  highlighted  that  the  limited  case  law  on 
independent repairers’ access to technical information and the fact that this behaviour is 
not listed as a hardcore restriction makes enforcement more complex for NCAs.  

These  views  of  NCAs  and  respondents  to  the  public  consultation  on  the  misuse  of 
warranties,  access  to  technical  information  and  vehicle  data  and  access  to  spare  parts  / 
diagnostic tools find some support in  the decisional  practice of  NCAs.  Around 39% of 
the  infringement  decisions  adopted  by  NCAs  concerned  abuse  of  warranties,  16% 
included  restrictions  on  access  to  spare  parts  /  diagnostic  tools  and  about  7%  involved 
restrictions to access technical information and vehicle data.139 

The fact-finding study provided limited information about independent repairers, given 
the  low  participation  of  this  category  to  the  survey,  therefore  does  not  provide  enough 

138   See Annexes 3 and 6. 
139   See Annex 4. 

43 

 
 
 
 
 
 
                                                           
elements  to  evaluate  the  key  parameters  of  competition  for  this  objective.  Most  of  the 
information  present  in  the  fact-finding  study  was  collected  by  parts  manufacturers 
through the survey. 

The  Commission’s  monitoring  and  enforcement  experience  indicates  that  the 
specific  policy  objective  of  protecting  the  ability  of  independent  repairers  to 
compete  has  been  at  least  partially  met.  Since  the  previous  review  of  the  MVBER 
regime,  independent  operators  that  compete  with  authorised  repairers  still  face 
difficulties in accessing the inputs they need to repair vehicles140 While some of these 
issues may be linked to these operators’ (often multi-brand) business models, and to the 
major  investments  needed  to  repair  increasingly  technologically-advanced  vehicles,  it 
cannot be excluded that some of the difficulties encountered may be due to restrictions 
on  the  markets,  in  particular  as  regards  access  to  key  inputs  such  as  repair  and 
maintenance  information.  However,  it  should  be  noted  that  since  it  adopted  the  four 
Technical  Information  decisions  in  2007,141  and  included  the  lessons  learned  in  the 
SGL, the Commission has not examined complaints the facts of which would render it 
necessary to adopt further decisions in this area. 

In  light  of  the  above,  it  appears  that  overall  the  specific  policy  objective  of  enabling 
independent repairers to compete with  the manufacturers'  networks of authorised 
repairers  has  been  partially  achieved.  The  evaluation  shows,  however,  that 
stakeholders are still encountering some difficulties in this area, mainly in connection 
with  the  misuse  of  warranties,  access  to  technical  information  and  vehicle  data  and 
access to spare parts / diagnostic tools.  

5.  Protecting competition between authorised repairers of the same brand 

In  its  2009  Communication,  the  Commission  found  that  effective  competition  on  the 
market  for  repair  and  maintenance  services  not  only  depended  on  the  competitive 
interaction between independent and authorised repairers but also on the degree of such 
interaction  within  the  network  of  authorised  repairers.  This  was  all  the  more  true  for 
owners  of  new  vehicles,  who  tended  to  have  them  serviced  in  authorised  garages.  In 
2010,  it  was  therefore  concluded  that  submitting  applicants  to  quantitative  selection 
(including by obliging them to also sell new cars) was likely to cause the agreement to 
fall within Article 101(1) of the Treaty.142 Since most authorised repair agreements could 
not  benefit  from  block  exemption,  due  to  the  market  shares  of  the  parties,  this  implied 
that  limits  on  repairer  numbers  would  need  individual  self-assessment  under  Article 
101(3) of the Treaty. 

140   About  10%  of  the  informal  submissions  received  by  the  Commission  since  2010  concerned  restrictions  on 

restrictions on access to RMI / vehicle data. 

141   See cases AT. 39140 - DaimlerChrysler, AT. 39141- Fiat, AT. 39142 - Toyota Motor Europe and AT. 39143 - 

Opel. 

142   See paragraph 70 SGL. 

44 

 
 
 
 
 
                                                           
The  majority  of  respondents  to  the  public  consultation  believe  that  the  specific 
policy  objective  has  been  partially  achieved143  while  a  few  deem  it  fully  achieved. 
Conversely, NCAs are mostly of the view that the objective has been fully achieved, 
with  only  a  few  considering  it  partially  achieved.  The  latter  NCAs  indicated  that  the 
quality  requirements  set  by  vehicle  manufacturers  for  authorised  repairers  had  become 
increasingly  strict,  requiring  large  investments  in  personnel,  buildings  and  equipment, 
which  in  turn  translated  into  fewer  authorised  repairers  being  admitted  to  the  network. 
Certain  respondents  to  the  public  consultation  also  expressed  the  view  that  intra-brand 
competition  is  decreasing  as  a  result  of  refusals  on  the  part  of  suppliers  to  allow 
candidate  repairers  enter  the  authorised  networks  and  the  termination  of  contracts  that 
provide for both vehicle sales and aftersales functions.  

As for enforcement in this area, between 2010 and 2020, there were no infringement 
decisions  taken  by  the  Commission  in  this  area.  There  were  nevertheless  two  informal 
submissions  which  turned  into  formal  complaints  involving  allegations  that  a  vehicle 
manufacturer had engaged in anticompetitive behaviour as regards the provision of after-
sales services by implementing a number of practices to exclude small repairers from its 
authorised  network.  However,  after  assessing  the  evidence  on  these  cases,  the 
Commission rejected the complaints on the basis of lack of Union interest.144 At the same 
time,  only  around  7%  of  the  infringement  decisions  adopted  by  NCAs  involved 
inappropriate selection criteria.  

The  fact-finding  study  highlighted  a  general  decrease  in  the  number  of  authorised 
repairer outlets from 2007 to 2017, as well as a reduction of the total number of contracts 
signed  by  vehicle  manufacturers  with  authorised  repairers.  These  findings  appear 
consistent  with  the  position  of  some  NCAs  reporting  fewer  authorised  repairers  being 
admitted to the network, although some differences exist at country level both in terms of 
the number of authorised repairers and of the number of contracts for authorised repairers 
signed, with  a  general  decreasing trend apart from  some brands, which might  be partly 
due to vehicle manufacturers’ observed trend towards rationalisation and consolidation of 
their networks.  

The  Commission’s  monitoring  and  enforcing  experience  tends  to  show  that  this 
specific  policy  objective  has  been  partially  met.  In  particular,  the  evidence  available 
does not seem to indicate any generalised or widespread practices on the part of suppliers 
to refuse network entry to candidate repairers that met quality criteria. The Commission 
has,  however,  encountered  individual  instances  where  it  appeared  that  importers  had 
refused  access  to  a  particular  firm  on  the  grounds  that  there  was  already  an  authorised 

143   See Annexes 3 and 6. 
144   See cases: AT.39804 Volkswagen Group Italia (Audi I) and AT.39836 Volkswagen Group Italia (Audi III). 

45 

 
 
 
 
 
                                                           
repairer in the area in question. This situation was resolved on an informal basis.145 The 
Commission has also encountered occurrences where an individual repairer was refused 
access  to  a  network  because  of  an  allegedly  poor  pre-existing  relationship  with  the 
supplier.  As  these  situations  were  not  indicating  that  the  supplier  in  question  was 
operating a quantitative restriction, no action was taken.  

In light of the above, it appears that overall the specific policy objective of protecting 
competition  between  authorised  repairers  of  the  same  brand  has  been  partially 
achieved.  The  evaluation  indicates  that,  among  others,  certain  issues  with  regard  to 
access to authorised repairers’ networks seem to remain problematic. 

6.  Preventing foreclosure of spare parts suppliers 

In  its  2009  Communication,  the  Commission  found  that  there  were  often  large 
differences  in  price  between  parts  sold  or  resold  by  a  vehicle  manufacturer  and 
alternative  parts.  The  availability  of  alternative  parts  brought  considerable  benefits  to 
consumers,  in  terms  of  both  choice  and  price.  The  Commission  therefore  considered  it 
necessary  to  protect  access  by  spare  parts  manufacturers  to  the  motor  vehicle 
aftermarkets,  thereby  ensuring  that  competing  brands  of  spare  parts  continued  to  be 
available to both independent and authorised repairers, as well as to parts wholesalers. 

Most respondents to the public consultation consider this specific policy objective 
as  partially  achieved146,  while  a  handful  of  respondents  consider  it  to  be  fully 
achieved, and only a few consider it not to be achieved. NCAs were generally of the 
view that this objective had been fully achieved or partially achieved, although one 
NCA considered that the objective had not been achieved. As regards the NCAs, some 
indicated  that  independent  repairers  still  struggled  to  obtain  some  categories  of  spare 
parts.  In  particular,  some  NCAs  noted  that  authorised  repairers  still  did  not  often  use 
parts of brands  competing with those supplied by the car manufacturers. In  relation to 
this, certain respondents noted that authorised repairers remain largely dependent on the 
OEMs,  mainly  for  commercial  reasons  (e.g.,  bonuses  /  rebates  /  audits).  Some 
respondents referred to: (i) restrictions on the development of aftermarket spare parts or 
their remanufacturing due to, for example, restrictions brought about by a lack of access 
to OEMs’ parts coding or the integration of logos in the design; (ii) hampering of Tier 1 
suppliers  by “tooling arrangements” and the introduction of electronic codes for spare 
parts;  and  (iii)  spare  parts  suppliers  being  increasingly  obliged  to  transfer  intellectual 
property titles and tooling rights to OEMs.   

With  regard  to  enforcement  and  monitoring,  the  third  and  fifth  most  common 
allegations included in informal submissions sent to the Commission between 2010 and 

145   2.6 % of the informal submissions received concerned inappropriate selection criteria for dealers / repairers and 

were resolved on an informal basis. 

146   See Annexes 3 and 6. 

46 

 
 
 
 
 
 
                                                           
2020 concerned restrictions on sales to end users and restrictions on access to spare parts 
/  diagnostic  tools,  respectively.  As  for  NCAs,  the  second  most  recurrent  restrictions 
identified in infringement decisions adopted by NCAs concerned restrictions on access to 
spare parts / diagnostic tools, with 16% of the decisions pertaining this issue. Around 7% 
of  the  infringement  decisions  adopted  by  NCAs  involved  restrictions  on  component  or 
parts suppliers’ downstream sales.  

The fact-finding study mainly provided data regarding spare parts sales trends, market 
size and profitability. In particular, the study showed that both the market for spare parts 
supply (sales of part manufacturers) and that for spare parts distribution (sales by parts 
distributors)  registered  an  increase  in  terms  of  sales  value  in  the  period  2007-2017. 
Moreover,  the  study  shows  that  vehicle  parts  supply  is  a  profitable  business.  The 
average  operating  margin  of  the  top  10  parts  manufacturers  increased  from  8.7%  in 
2007 to 11.7% in 2017, with the most profitable companies reaching 18%. Globally, the 
average  operating  margin  of  parts  manufacturers  remained  rather  stable  at  above  7% 
over the period 2007-2017. Given the limitations of the study, it is not possible to draw 
meaningful  conclusions  on  other  parameters  of  competition  regarding  this  objective, 
like, for instance, the possibility for independent repairers to obtain certain spare parts.  

The Commission’s enforcement and  monitoring experience  tends  to point towards 
this  specific  policy  objective  having  been  partially  met.  As  to  enforcement,  the 
Commission has received three formal complaints concerning distribution of spare parts 
in  recent  years,  but  rejected  all  of  them.147  These  markets  seem  to  be  characterised  by 
two rigidities. Firstly, OES’ contractual arrangements with motor vehicle manufacturers 
may,  in  some  circumstances,  prevent  or  hamper  the  former  from  supplying  the 
aftermarket directly, in competition with parts sold to the OEMs and then resold as spare 
parts. In particular, suppliers in the sector seem to use so-called “tooling arrangements”148 
in  the  sector,  and  of  requirements  sometimes  placed  on  OES’  to  transfer  intellectual 
property  rights  to  their  OEM  customers.  Secondly,  agreements  between  OEMs  and 
authorised repairers may oblige or incite the latter to purchase most of their supplies of 
parts  directly  from  the  OEM.  However,  to  date,  the  Commission  has  not  found  any 
elements that led it to assess the compatibility of these rigidities with Article 101 of the 
Treaty. On the other hand, in its experience, alternatives usually exist on the markets for 
the most common parts used in vehicle maintenance, and independent repairers often use 
such parts to service customers’ vehicles.  

Taking  all  of  this  into  account,  it  appears  that  overall,  the  specific  policy  objective  of 
preventing  foreclosure  of  spare  parts  suppliers  has  been  partially  achieved.  The 
evaluation  shows  that,  inter  alia,  independent  repairers  seem  to  face  difficulties  in 
obtaining some spare parts and access to electronic codes. Issues also appear to still arise 

147   See Annex 4. 

47 

 
 
 
 
                                                           
 
in relation to requirements placed on OES’ to transfer intellectual property rights to their 
OEM customers. 

7.  Preserving the deterrent effect of Article 101 of the Treaty – preventing suppliers 

from using indirect pressure and threats to achieve anticompetitive results 

In  its  2009  Communication,  another  factor  of  particular  importance  identified  by  the 
Commission was the need to ensure that the manufacturers did not use the safe harbour 
granted  by  regulation  in  order  to  hinder  independent  procompetitive  behaviour  of 
authorised  dealers  and  repairers  through  various  forms  of  indirect  pressure  and  threats 
which  might  lead  to  similar  outcomes  to  those  prohibited  by  means  of  hardcore 
provisions. 

The evaluation has shown that some respondents to the public consultation and a few 
NCAs  have  encountered  in  their  agreements  and  enforcement  activities,  respectively, 
conduct  which  could  serve  as  an  indirect  means  of  achieving  anti-competitive  results 
(i.e., indirect pressure or threats by suppliers on dealers or repairers). 149 In evaluating this 
objective, attention has been given to the fact that, as in many durable goods industries, 
distributors are often the weaker party to agreements with suppliers. This is not of itself 
anticompetitive;  nor  does  it  amount  to  prima  facie  evidence  of  anti-competitive 
behaviour,  but  this  imbalance  should  nonetheless  be  kept  in  mind  when  assessing 
allegations of such behaviour.  

In  any  event,  despite  the  options  open  to  dealers  and  repairers  to  have  their  identities 
protected,  in  the  period  2010  to  2020  the  Commission  did  not  received  any  formal 
complaints  that  would  allow  it  to  find  that  suppliers  had  hindered  pro-competitive 
behaviour  by  exerting  means  of  indirect  pressure  or  threats  on  dealers  or  repairers  .  It 
cannot be excluded that some of the disputes may have been resolved through negotiation 
or  arbitration.150  The  Commission’s  monitoring  and  enforcement  experience 
therefore tends to show that this specific policy objective has been largely met.  

Contributions from a few NCAs as well as respondents to the public consultation bear 
out  the  above  observations  as  regards  the  relative  weakness  of  dealers’  contractual 

149   NCAs  have  indicated  the  following  practices:  (i)  setting  qualitative  standards  may  raise  /  unify  costs,  thereby 
increasing  dealers’  economic  dependence  on  a  particular  supplier;  (ii)  inciting  authorised  distributors  to  merge 
may  increase  market  concentration  at  dealer  level;  (iii)  imposing  commercial  /  pricing  policies  on  dealers  may 
indicate an imbalance in rights and obligations between the parties; (iv) setting arbitrary limits on the number of 
dealers may exclude some from the distribution networks; and (v) fixing remuneration systems / sales campaigns 
may  have  steering  effects  on  dealers’  conduct  and  unifying  price  effects.  In  the  same  vein,  some  respondents, 
mainly  dealers  /  repairers,  point  to  the  following  practices:  (i)  an  increase  in  direct  (including  online)  sales  by 
vehicle manufacturers; (ii) decreasing basic discounts or increasing promotional campaigns may allegedly amount 
to  indirect  resale  price  maintenance;  (iii)  fees  paid  to  dealers  for  delivering  and  preparing  a  car  that  has  been 
purchased directly from the vehicle manufacturer are allegedly too small to make the dealers’ business profitable.  
150   This seems supported by the replies to the public consultation: it appears that although respondents came across 
certain restrictions in their agreements with third parties, the large majority of the respondents which found such 
clauses in their agreements and contested them, did not end up in court. See Annex 3. 

48 

 
 
 
 
                                                           
position,151 but do not seem to indicate that pressure or threats have been used indirectly 
to exploit this weakness for anticompetitive gain.  

One reason for the lack of indications in this area could be an increased awareness of the 
rules  applicable  to  vertical  agreements  in  the  motor  vehicle  sector,  which  may  have 
steered market players towards compliance. In this regard, the evaluation revealed that, 
as  suggested  in  the  2010  Evaluation  Report,152  some  stakeholders  are  putting  in  place 
codes  of  conduct  /  practice  that  apply  to  contractual  relations  between  the  respondents 
and their contractual partners in the motor vehicle sector.153  

In light of the above, it appears that overall the specific policy objective of preventing 
suppliers from using indirect pressure and threats to achieve anticompetitive results 
has been partially or fully achieved.  

The  evidence  gathered  in  the  evaluation  suggests  that  generally  the  fourth  specific 
objective  of  the  MVBER  regime  –  i.e.,  protecting  competition  in  number  of 
dimensions  in  the  motor  vehicle  sector  -  has  been  partially  or  fully  achieved. 
Nevertheless, potential competition concerns seem to remain, in particular with regard 
to  three  of  the  specific  policy  objectives,  namely:  (i)  enabling  independent  repairers  to 
compete effectively with authorised repairers, with respondents to the public consultation 
pointing  at  issues  on  access  to  technical  information  and  vehicle  data,  misuse  of 
warranties  and  access  to  spare  parts  /  diagnostic  tools;  (ii)  protecting  competition 
between  authorised  repairers  of  the  same  brand,  where  certain  issues  with  regard  to 
access to authorised repairers’ networks seem to remain; and (iii) preventing foreclosure 
of  spare  part  producers  in  the  aftermarket,  where  there  are  some  indications  of 
independent  repairers  facing  difficulties  to  obtain  certain  spare  parts  and  access  to 
electronic codes, and where some issues also appear to arise in relation to requirements 
placed on OES’ to transfer intellectual property rights to their OEM customers.  

6.2  Efficiency 

4.  Are the incurred compliance and enforcement costs involved in the assessment 
of  the  application  of  the  MVBER  regime  to  vertical  agreements  in  the  motor 
vehicle sector reasonable and proportionate to the benefits that the rules bring? 

What is the issue? 

151   See footnote 150. 
152   See subsection G of section 3 of Commission Evaluation Report on the operation of Regulation (EC) 1400/2002 

concerning motor vehicle distribution.  

153   See, for example, ACEA’s “Code of good practice regarding certain aspects of vertical agreements in the motor 

vehicle sector”, available here.  

49 

 
 
 
 
 
 
 
 
                                                           
When considering this criterion, the evaluation looked into whether the MVBER regime 
was  efficient  in  achieving  its  objectives,  taking  into  account  the  costs  and  benefits 
associated with applying it. In accordance with the current framework, businesses have to 
self-assess  their  vertical  agreements  in  the  motor  vehicle  sector  to  ensure  compliance 
with  Article  101  of  the  Treaty,  which  necessarily  entails  costs  for  businesses.  The 
MVBER regime aims to facilitate this self-assessment. In this context, it is important to 
note that the MVBER regime does not impose any additional compliance obligations on 
businesses beyond those reflected in Article 101 of the Treaty. Nevertheless, in order to 
verify  whether  their  agreements  can  benefit  from  the  safe  harbour  provided  by  the 
MVBER  regime,  businesses  need  to  check  them  against  the  conditions  set  out  in  the 
MVBER regime, which may entail costs. 

In assessing whether the MVBER regime has been efficient in  achieving its objectives,  
several  elements  were  considered:  (i)  the  types  and  amount  of  costs  incurred  by 
businesses when assessing whether their vertical agreements in the motor vehicle sector 
can benefit from the exemption; (ii) whether such costs are proportionate to the benefits 
the MVBER regime brings; and (iii) whether, absent the MVBER Regime, the costs of 
ensuring that vertical agreements in the motor vehicle sector comply with Article 101 of 
the Treaty would increase.  

What are the findings? 

A  large  majority  of  respondents  to  the  public  consultation  and  NCAs154  considered 
that,  without  the  MVBER  regime,155  costs  stemming  from  the  assessment  of  the 
compliance  of  vertical  agreements  in  the  motor  vehicle  sector  with  Article  101  of  the 
Treaty would have been higher and that the current level of costs seemed proportionate 
to the benefits brought by the MVBER Regime. 

As  to  the  type  of  costs  incurred  by  businesses  when  assessing  whether  their  vertical 
agreements in the motor vehicle sector can benefit from the exemption, most respondents 
to  the  public  consultation  referred  to  costs  for  external  counsel  and  internal 
administrative costs, followed by costs for internal lawyers. Although respondents were 
asked to provide estimates on the yearly amount of such costs, only a few provided actual 
figures. The latter range from EUR 10,000 to EUR 140,000 per year and do not allow to 
draw general conclusions on the real level of costs.  

The  NCAs  also  generally  assessed  the  costs  to  be  reasonable  and  proportionate  to 
the benefits obtained but reported not being able to provide exact figures. This being 
said, some NCAs were of the view that the reduction of costs may be small, as assessing 
the complexities of vertical agreements in the motor vehicle sector still requires intense 

154   See Annexes 3 and 6. 
155   If the current MVBER were to lapse, the VBER would apply by default. 

50 

 
 
 
 
 
 
                                                           
resources due to inter alia the intricate legal framework that made up the motor vehicle 
rules, the limited case law, and the complex and technical nature of the specific cases in 
the motor vehicle sector.  

The  evidence  gathered  in  the  evaluation  suggests  that  the  MVBER  regime  has  been 
efficient as,  absent the latter, the costs resulting  from assessing compliance  of vertical 
agreements in the motor vehicle sector with Article 101 of the Treaty would have been 
higher.  Costs  are  generally  seen  as  proportionate  to  the  benefits  brought  by  the 
MVBER regime, notably the safe harbour and the resulting increase in legal certainty. 
Nevertheless, the data collected is not sufficient to allow to quantify such costs and to 
conclude clearly on whether the compliance costs have decreased. 

6.3  Relevance 

5.  Do  the  objectives  of  the  MVBER  regime  reflect  current  needs  and  are  they 

appropriate to meet those needs? 

What is the issue? 

The assessment of the relevance of the MVBER regime focuses on whether its objectives 
have proven to be appropriate and whether they still correspond to current needs, taking 
into account market developments since its adoption. As mentioned above, the MVBER 
regime pursues a general objective through four specific objectives.156 In order to assess 
the  relevance  of  these  objectives,  the  following  elements  were  examined  (i)  how  the 
evolution of the motor vehicle sector over the last decade might have impacted the needs 
and  objectives  of  the  intervention;  (ii)  whether,  in  view  of  new  market  developments, 
respondents  still  saw  the  objectives  of  the  MVBER  regime  as  relevant;  (iii)  whether 
additional  objectives  should  be  pursued  in  respect  of  vertical  agreements  in  the  motor 
vehicle sector; and (iv) whether the material scope of the MVBER was still appropriate, 
i.e., whether it should continue to cover only self-propelled vehicles intended for use on 
public roads and having  three or more road wheels,  or whether it could  be extended to 
cover other vehicles. 

What are the findings? 

Overall, respondents to the public consultation and NCAs157 indicate that the general 
and specific objectives of the MVBER regime continue to be relevant today. This general 
view  is  aligned  with  the  Commission’s  monitoring  and  enforcement  experience, 
which is that the general objective of the MVBER regime - preserving the deterrent effect 
of  Article  101  of  the  Treaty  by  facilitating  the  enforcement  work  of  the  Commission, 

156   See Section 2.3. 
157   See Section 5.1.1 questions 2 and 3 and Section 5.1.5 respectively. 

51 

 
 
 
 
 
 
 
 
 
                                                           
NCAs  and  national  courts  and  to  help  businesses  conduct  the  self-assessment  of  their 
vertical agreements – as well as its three of the four specific objectives - providing legal 
certainty  to  stakeholders  in  the  sector;  reducing  the  risk  of  false  positives  and  false 
negatives; and providing a common framework for the application of Article 101 of the 
Treaty  –  remain  relevant  today,  both  for  this  sector,  and  others  in  which  vertical 
agreements are used.158 

On balance, therefore, it appears that both the general objective and the three specific 
ones  remain  relevant  today.  As  regard  the  current  relevance  of  the  fourth  specific 
objective (and its sub-specific policy objectives), the views of the NCAs and respondents 
to  the  public  consultation,  as  well  as  the  findings  of  the  study,  and  the  Commission’s 
monitoring and enforcement experience are presented below: 

1.  Preventing  foreclosure  of  competing  vehicle  manufacturers  and  safeguarding 

their access to the market  

NCAs and respondents to the public consultation on the whole indicated that this specific 
policy objective was still relevant, without further qualification or distinction between the 
different markets. 

The protection of inter-brand competition is highly relevant, and indeed is one of the core 
ambitions  of  competition  policy.  However,  given  the  level  of  intensity  of  inter-brand 
competition  in  the  passenger  car  markets  revealed  by  the  fact-finding  study,  it  follows 
that the protection of market access for competing car manufacturers may not  still have 
the same relevance as regards these markets. However, the same may not be said for the 
light commercial vehicles, truck and bus sectors, where the fact-finding study found that 
inter-brand competition appears to be weaker. 

On  balance,  therefore,  it  appears  that  this  specific  policy  objective  seems  to  still  be 
relevant for light commercial vehicles, truck and bus sectors but that it may not be 
as relevant for passenger cars.  

2.  Protecting competition between dealers of the same brand   

On the whole, NCAs as well as respondents to the public consultation indicated that this 
specific policy objective was still relevant. 

Fostering intra-brand competition is particularly important where inter-brand competition 
is only moderate or weak. The fact-finding study showed that intra-brand competition did 
not decrease significantly between 2007 and 2017, at least as far as passenger cars were 
concerned. 

158   Commission Staff Working Document Evaluation of the Vertical Block Exemption Regulation, SWD (2020) 173 

final, Section 5.2.3. 

52 

 
 
 
 
 
 
 
 
 
                                                           
In line with the above, the Commission’s monitoring and enforcement experience in this 
regard  is  that  this  specific  policy  objective  remains  relevant  for  the  light  commercial 
vehicle, truck and bus sectors. As regards passenger cars, the existence of dealer groups 
that may hold a portfolio of brands in a particular local area, thereby potentially reducing 
inter-brand competition in that area,159 may be an indication that the protection of intra-
brand competition may also remain a relevant objective for passenger car distribution.  

On balance, therefore, it appears that protecting this specific policy objective seems to 
still be relevant.  

3.  Preventing restrictions on parallel trade in motor vehicles  

NCAs  and  respondents  to  the  public  consultation  were,  on  the  whole,  of  the  view  that 
this specific policy objective was still relevant. 

The  Commission’s  monitoring  and  enforcement  experience  also  points  in  the  direction 
that  this  specific  policy  objective  is  still  relevant.  For  example,  the  Commission  has 
recently reaffirmed that the protection and promotion of the Single Market remains a core 
policy  objective.  For  individual  consumers  to  benefit  from  the  Single  Market,  it  is 
essential  that  they  are  able  to  purchase  products  and  services  across  borders  without 
encountering artificial barriers. Next to a home, the motor vehicle is the most expensive 
investment  that  the  average  consumer  will  make,  and  if  cross-border  purchases  are 
hampered, the risk of consumer harm is therefore high.  

On  balance,  therefore,  it  appears  that  this  specific  policy  objective  continues  to  be 
relevant. 

4.  Enabling independent  repairers to  compete with the manufacturers' networks of 

authorised repairers  

On the whole, the opinion of NCAs and respondents to the public consultation was that 
this  specific  policy  objective  was  still  relevant,  with  many  contributors  indicating  the 
need to ensure that new technologies, such as those related to vehicle-generated data, are 
taken into account.160  

The Commission’s monitoring and enforcement experience is that independent repairers 
exert vital  competitive pressure  on the authorised networks. They are also of particular 
importance  for  owners  of  older  vehicles,  helping  to  keep  these  products  in  a  safe  and 
environmentally-friendly condition. Their presence on the markets may be becoming all 
the  more  important  as  the  investment  requirements  placed  on  authorised  repairers  are 

159   As a result of the observed consolidation trend between dealer groups. See Sections 5.1.1.3, 5.1.2.2 and Annex 2. 
160   See Annex 3.  

53 

 
 
 
 
 
 
 
 
 
 
                                                           
increased, thereby harmonising more of their cost base.161 Independent repairers’ ability 
to  compete  is  dependent  on  their  access  to  key  inputs  such  as  spare  parts,  technical 
information,  tools,  training,  and  –  increasingly  –  data.  Where  such  inputs  can  only  be 
obtained from car manufacturers or their nominated partners, it is especially important to 
ensure that these are not unjustifiably withheld, or that access to them is not restricted.  

On  balance,  therefore,  it  appears  that  this  specific  policy  objective  continues  to  be 
relevant. 

5.  Protecting competition between repairers of the same brand 

NCAs and respondents to the public consultation on the whole indicated that this specific 
policy objective was still relevant. 

The  fact-finding  study  highlighted  a  general  decrease  in  the  number  of  authorised 
repairer outlets from 2007 to 2017, as well as a reduction of the total number of contracts 
signed  by  vehicle  manufacturers  with  authorised  repairers.  According  to  the  study,  the 
observed  gradual  expansion  of  new  alternative  fuel  vehicles  –  in  particular  hybrid  and 
electric  –  in  all  countries  in  scope,  was  likely  to  lead  authorised  repairers  to  incur 
additional  investments  (training,  tooling,  diagnostic,  charging  equipment)  to  meet  the 
specific maintenance and repair requirements of such vehicles. 

In the Commission’s monitoring and enforcement experience, partly because they are the 
only outlets able to honour the vehicle manufacturers’ warranties, and partly because of 
consumer  perception,  authorised  repairers  have  an  important  role  to  play  on  the 
aftermarkets,  especially  for  the  owners  of  newer  vehicles.  They  are  also  frequently  the 
only local  source for vehicle-manufacturer branded spare parts used in  the  independent 
sector.  The  qualitative  requirements  placed  on  authorised  repair  shops  appear  to  have 
increased,  partly  due  to  the  increase  in  technology  in  modern  cars,  and  the 
correspondingly high investments needed to be able to maintain and repair them.162 This 
in turn may have harmonised more of authorised repairers’ costs than was the case in the 
past.  

On  balance,  therefore,  it  appears  that  this  specific  policy  objective  continues  to  be 
relevant. 

6.  Preventing foreclosure of spare parts suppliers  

NCAs and respondents to the public consultation on the whole indicated that this specific 
policy  objective  was  still  relevant,  with  some  respondents  indicating  that  independent 
repairers still seem to face issues to in relation to spare parts.  

161   See Annex 3. 
162   See Annex 3. 

54 

 
 
 
 
 
 
 
 
 
                                                           
In  the  Commission’s  monitoring  and  enforcement  experience,  competition  from  spare 
parts  suppliers  (both  OES163  and  IAM  /  “matching  quality”164)  continues  to  be  vitally 
important for repairers wishing to offer a high-quality service at a reasonable cost to end 
consumers.  Spare  parts  make  up  a  major  fraction  of  the  cost  of  vehicle  repair  and 
maintenance and when alternative brands of parts are available, competition drives prices 
down.  Two  kinds  of  rigidities  seem  to  persist  on  the  spare  parts  markets.  Firstly, 
authorised  repairers  continue  to  source  a  large  percentage  of  their  parts  requirements 
from  the  OEM,165  instead  of  directly  from  the  manufacturer  of  those  parts,  or  from 
matching quality suppliers. Secondly, “tooling arrangements” and other restrictions often 
prevent  OES  from  directly  supplying  the  aftermarkets.  The  Commission’s  experience 
therefore  supports  the  line  broadly  advanced  by  NCAs  and  respondents  to  the  public 
consultation. 

On  balance,  therefore,  it  appears  that  this  specific  policy  objective  continues  to  be 
relevant. 

7.  Preserving  the  deterrent  effect  of  Article  101  of  the  Treaty  by  preventing 
suppliers  from  using  indirect  pressure  and  threats  to  achieve  anticompetitive 
results  

In its 2009 Communication, the Commission indicated the need to preserve the deterrent 
effect of Article 101 of the Treaty by preventing suppliers from using indirect pressure 
and  threats  to  achieve  anticompetitive  results.  This  objective,  described  as  “flanking”, 
therefore related in the main to the maintenance of intra-brand competition. 

On the whole, the views of NCAs and contributors to the public consultation were that 
this  objective  was  still  relevant  as  some  of  them  have  identified  a  number  of  conducts 
which,  in  their  view,  could  serve  as  an  indirect  means  of  achieving  anti-competitive 
results.166 

Based  on  the  Commission’s  monitoring  and  enforcement  experience  there  seem  to  be 
few  positive  indications  showing  that  suppliers  achieve  anti-competitive  results  by 
exerting  pressure  on  their  dealers  /  repairers  and  issuing  threats.  Rather,  its  experience 
tends  to  point  in  the  direction  that  the  ability  of  suppliers  to  influence  their  dealers’  / 
repairers’ behaviour in particular lies in the fact that they make large investments in the 
brand, and are therefore unwilling to jeopardise those investments by going against what 

163   OES are the manufacturers of the parts used for the initial assembly of the new vehicle. 
164   Independent Aftermarket Suppliers of matching quality parts supply products that match the quality of the parts 
used for the initial assembly of the new vehicle, and/or of the spare parts supplied by the vehicle manufacturer. 
165   The  fact-finding  study  shows  that  vehicle  manufacturers  adopt  a  wide  range  of  rebates,  incentives  and  bonus 
schemes  on  both  vehicles  and  parts,  which  may  lead  authorised  repairers  to  source  certain  parts  directly  from 
vehicle manufacturers. 
166   See Annexes 3 and 6. 

55 

 
 
 
 
 
 
 
                                                           
they perceive as their supplier’s interests.167 Therefore, this objective does not appear to 
be of particular relevance, particularly on the markets  for passenger cars, where, as the 
study  confirms,168  there  is  healthy  inter-brand  competition.  Given  the  contrast  between 
the expressed views of respondents and Commission’ experience, further analysis as to 
whether this remains a relevant flanking objective appears to be needed.   

The  stakeholders  were  also  asked  in  the  public  consultation  whether  the  MVBER 
regime could contribute to the pursuit of other objectives which were not considered 
at the time of the adoption  of the current framework. A number of respondents  to 
the  public  consultation  opined  that  the  application  of  the  MVBER  regime  should 
facilitate  or  contribute  to  the  pursuit  of  sustainability  objectives,  in  the  context  of  the 
Green Deal.169 It was suggested, for example, that ensuring full reparability of cars and 
recycling  /  remanufacturing  of  spare  parts  would  be  helpful  in  this  regard.170  Another 
potential objective identified by some respondents referred to the need to ensure access 
to in-vehicle data necessary for repair and guaranteeing security of connected cars.171 

As  to  sustainability,  the  most  effective  way  for  the  competition  rules  to  contribute  to 
sustainability  objectives  is  to  ensure  effective  competition,  stimulate  innovation  and 
thereby encourage the offer of sustainable products and services. The current MVBER 
regime already allows for the exemption of all agreements, including those that target 
sustainability objectives, so long as the market shares of the parties do not exceed the 
30% threshold172 and the agreement does not contain hardcore restrictions.173 Where the 
market  shares  exceed  the  30%  threshold  such  agreements  will  remain  subject  to 
individual assessment pursuant to Article 101(3) of the Treaty. 

As regards to access to in-vehicle data, where such data, or indications that result from it, 
are supplied to authorised repairers, that data should be also supplied on an equal basis to 
independent operators that compete with those repairers. However, the evaluation shows 
that access to data, like access to other essential inputs, should be seen as a subset of the 
specific objective of enabling independent repairers to compete with the manufacturers' 
networks of authorised repairers, rather than as a separate objective.  

As  for  the  current  scope  of  the  MVBER  regime,  NCAs  are  of  the  view  that  this  is 
appropriate. Conversely, a majority of respondents174 to the public consultation argued 

167   See Annex 3. 
168   See Section 5.3.1, Question 4. 
169   Communication  from  the  Commission  to  the  European  Parliament,  the  European  council,  the  Council,  the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions:  The  European  Green  Deal. 
COM/2019/640. 
170   See Annexes 3 and 6. 
171   See Annexes 3 and 6. 
172   See Article 3 VBER. 
173   See Article 4 VBER and Article 5 MVBER. 
174   Primarily  associations  representing  parts  dealers,  parts  manufacturers,  vehicle  dealers  or  vehicle  importers,  but  

also companies (mainly parts dealers, but also other types of market operators such as repairers). 

56 

 
 
 
 
                                                           
that  the  scope  of  the  MVBER  regime  should  be  widened  to  also  cover  two-wheel 
vehicles  (mainly  motorcycles,  but  some  also  mentioned  electric  bikes  or  electric 
scooters)  and  some  vehicles  not  meant  for  roads  (such  as  agricultural  machinery, 
tractors  and  forestry  vehicles  or  construction  vehicles).  According  to  certain  of  these 
respondents,  OEMs  place  significant  pressure  on  authorised  repairers  to  use  only 
specific  spare  parts  to  the  detriment  of  alternative  spare  parts  suppliers  with  regard  to 
these types of vehicle. The increasing importance of electric bikes and scooters as new 
forms of mobility was also underlined.  

In  2010,  the  Commission  decided  that,  although  the  general  regime  for  vertical 
agreements  was  appropriate  for  motor  vehicle  distribution  agreements,  a  narrower 
exemption was necessary for vertical agreements relating to the provision of repair and 
maintenance  services  and  distribution  of  spare  parts  for  “self-propelled  vehicles 
intended  for  use  on  public  roads  and  having  three  or  more  road  wheels”.175  This  was 
done  following  a  full  analysis  of  the  sector  in  question  which  showed  considerable 
rigidities on the spare parts markets.176 At this stage, there are no concrete indications 
that  similar  rigidities  exist  in  respect  of  two-wheeled  or  off-road  vehicles  (e.g., 
agricultural machinery, tractors and forestry vehicles, construction vehicles).  

On balance therefore, it appears that the current scope of MVBER is still appropriate.  

The evidence gathered in the evaluation suggests that the first three specific objectives 
of the MVBER regime – legal certainty, avoiding false positives and false negatives as 
well as creating  a common framework of assessment  -  are  still relevant today. As to 
the  seven  elements  of  competition  under  the  fourth  specific  objective,  the  evaluation 
shows that overall they are still relevant. Nevertheless, the evaluation points at potential 
adjustments  of  certain  aspects  of  the  fourth  specific  objective,  namely  the  specific 
policy objectives of: (i) preventing foreclosure of competing vehicle manufacturers; (ii) 
safeguarding their access  to  the market  and protecting  competition  between dealers of 
the  same  brand;  (iii)  preserving  the  deterrent  effect  of  Article  101  of  the  Treaty  by 
preventing suppliers from using indirect pressure and threats to achieve anticompetitive 
results.  Finally,  as  to  the  material  scope,  the  evidence  gathered  in  the  evaluation 
suggests that the current scope of MVBER is still appropriate. 

6.4  Coherence 

Is the MVBER regime coherent within itself and with other Commission instruments 
that  lay down rules or provide guidance on the application /  interpretation of Article 
101 of the Treaty as well as with other current or upcoming Commission instruments 
in the area of competition policy and enforcement, and EU legislation? 

175   Article 1(g) and 4 MVBER. 
176   See para 64 et seq of Commission staff working document, The Future Competition Law Framework applicable to 
the motor vehicle sector, Impact Assessment and Section 4 of the London Economics study on “Developments in 
car retailing and after-sales markets under Regulation N° 1400/2002”. 

57 

 
 
 
 
 
 
                                                           
What is the issue? 

When  assessing  the  coherence  of  the  MVBER  regime,  the  different  instruments  that 
make it up must be considered.  In addition, both other Commission rules and  guidance 
on the application of Article 101 of the Treaty and other EU legislation with  relevance 
for vertical agreements in the motor vehicles sector also require consideration. 

As regards other Commission rules and guidance on the application of Article 101 of the 
Treaty,  there  are  a  number  of  guidelines,  notices  and  other  block  exemptions,  many  of 
which  touch  upon  concepts  and  issues  also  dealt  with  in  the  MVBER  regime.  For 
example, the Article 81(3) Guidelines177 provide additional guidance on the application 
of the four conditions of Article 101(3) of the Treaty and therefore apply for the purposes 
of  carrying  out  individual  assessments  of  vertical  agreements  covered  by  the  MVBER 
regime.  Similarly,  the  Notice  on  the  definition  of  the  relevant  market178  and  the 
Horizontal  Block  Exemption  Regulations179  and  related  Guidelines180  are  also  relevant. 
In  addition,  it  is  necessary  to  assess  whether  other  EU  legislation  with  relevance  for 
vertical agreements in the motor vehicle sector is coherent with the MVBER regime. In 
this regard, it is important to consider the Type Approval Regulation181 to the extent that 
it  interacts  with  the  MVBER  regime  as  well  as  any  potential  upcoming  legislation  on 
access to in-vehicle data.  

What are the findings? 

The  majority  of  respondents  to  the  public  consultation  did  not  provide  examples  of 
specific  inconsistencies  or  contradictions  within  the  different  instruments  that  compose 
the MVBER regime or between them. Similarly, most of the respondents did not refer to 
concrete  inconsistencies  or  contradictions  between  the  MVBER  regime  and  other 
Commission  instruments  that  lay  down  rules  or  provide  guidance  on  the  application  / 
interpretation of Article 101 of the Treaty, or between the MVBER regime and existing 
or upcoming Commission instruments in the area of competition policy and enforcement. 

177   Communication from the Commission, Notice - Guidelines on the application of Article 81(3) of the Treaty, OJ C 

101, 27.4.2004. 

178   Commission  notice  on  the  definition  of  the  relevant  market  for  the  purposes  of  Community  competition  law 
("Market  Definition  Notice"),  OJ  C  372,  9.12.1997.  The  Market  Definition  Notice  is  currently  subject  to  a 
separate review launched in April 2020.  

179   Commission Regulation No 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on 
the  functioning  of  the  European  Union  to  categories  of  research  and  development  agreements,  OJ  L  335, 
18.12.2010, p. 36, and Commission Regulation No 1218/2010 of 14 December 2010 on the application of Article 
101(3) of the Treaty to categories of specialisation agreements, OJ L 335, 18.12.2010. 

180   Communication  from  the  Commission,  Guidelines  on  the  applicability  of  Article  101  of  the  Treaty  on  the 
Functioning  of  the  European  Union  to  horizontal  co-operation  agreements  ("Horizontal  Guidelines"),  OJ  C  11, 
14.1.2011. 

181   Regulation (EU) 2018/858 of the European Parliament and of  the Council of 30 May 2018 on the approval and 
market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units 
intended  for  such  vehicles,  amending  Regulations  (EC)  No  715/2007  and  (EC)  No  595/2009  and  repealing 
Directive 2007/46/EC, OJ L 151, 14.6.2018. 

58 

 
 
 
 
 
 
                                                           
Similar  views  were  expressed  with  regard  to  inconsistencies  between  the  MVBER 
regime  and  other  existing  or  upcoming  EU  rules,  with  a  majority  of  respondents  not 
identifying any.182  

In line with the general view of respondents, the majority of NCAs considered the 
instruments  of  the  MVBER  regime  to  be  coherent  both  in  themselves  and  with 
other instruments that provide guidance on the interpretation of Article 101 of the 
Treaty.  

This being said, some NCAs pointed to three perceived inconsistencies concerning: (i) 
the  market  share  thresholds  set  out  in  paragraphs  56  and  12  of  the  SGL  for  the 
exemption of agreements for the distribution of new vehicles; (ii) the overall notion of 
bilateral and unilateral behaviour in the context of access to technical information; and 
(iii) the definition of the relevant market in the motor vehicle sector.  

Finally, both respondents and NCAs emphasised the importance of coherence between 
the MVBER regime and any potential future EU rules on access to in-vehicle data, so as 
to  ensure  competitive  access  to  data  for  all  actors  involved.  It  was  argued  that  the 
recitals  of  a  possible  future  MVBER  regime  should  contain  a  reference  to  upcoming 
regulations  on  access  to  in-vehicle  data  and  that  the  MVBER  regime  should  be 
consistent  with  the  aims  of  the  Commission  in  relation  to  the  data  economy,  the  data 
strategy and the EU Data Governance Act.183  

Based on the evidence gathered, it appears that generally the different instruments of 
the  MVBER  regime184  are  coherent  within  and  between  themselves.  The  evidence 
also indicates that the MVBER regime is coherent overall both with other Commission 
rules and guidance on the application of Article 101 of the Treaty, as well as with other 
EU  legislation  with  relevance  for  vertical  supply  and  distribution  agreements. 
Nevertheless,  both  respondents  and  NCAs  identify  a  few  areas  where  they  perceive  a 
lack of consistency. Moreover, both respondents and NCAs call on the Commission to 
ensure consistency with any potential upcoming legislative initiative particularly in the 
area of access to in-vehicle data. 

6.5  EU added value 

As an intervention at  EU level,  has the MVBER regime provided EU added value in 
terms of companies' self-assessment of compliance with Article 101 of the Treaty? 

What is the issue? 

182   See Annexes 3 and 6. 
183   Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  European  data  governance  (Data 

Governance Act). COM/2020/767 final. OJ L 325, 16.12.2019. 
184   The MVBER regime includes the VBER, MVBER, VGL, and SGL. 

59 

 
 
 
 
 
 
 
 
                                                           
When  assessing  whether,  as  an  intervention  at  EU  level,  the  MVBER  regime  provides 
added  value,  it  must  be  considered  that  competition  law  is  an  area  where  the  EU  has 
exclusive  competence.  This  means  that  the  EU  alone  is  allowed  to  legislate  and  adopt 
binding  acts  in  this  area,  whereas  the  Member  States  are  only  allowed  to  legislate  if 
empowered by the EU to implement these acts. Moreover, the Empowerment Regulation 
of  1965  grants  only  the  Commission,  and  not  the  Member  States,  the  power  to  adopt 
block exemption  regulations for certain  categories of vertical  agreements. Therefore, in 
the  absence  of  the  MVBER  regime,  which  is  the  relevant  point  of  comparison  for  the 
assessment,  stakeholders  would  be  deprived  of  the  safe  harbour  that  only  an  EU 
intervention  can  provide.  Hence,  they  would  have  to  rely  on  other  instruments  for  the 
purpose of self-assessing the compliance of their vertical agreements with Article 101 of 
the Treaty, instead of being able to rely on this set of rules. 

What are the findings? 

Evidence suggests that a large majority of both respondents to the public consultation 
and  NCAs185  believe  that  the  MVBER  regime  provides  added  value.  Overall, 
respondents  and  NCAs  consider  that:  (i)  the  MVBER  regime  has  made  it  easier  for 
NCAs  and  national  courts  to  apply  the  rules  consistently;  and  (ii)  national  guidance, 
enforcement  practice  of  NCAs  and  relevant  national  case-law  could  not  have  been 
equally or more effective than the MVBER regime.  

Only a minority of respondents believed that the MVBER regime had not made it easier 
for NCAs and national courts to apply the rules consistently. According to some of these 
respondents,  for some topics, the absence of cases at  EU level  has  made it difficult  for 
market players and Member States to apply the rules coherently. A few respondents also 
maintain that in certain Member States, NCAs did not seem to apply the MVBER regime 
and that national  courts do not take proper notice of the MVBER and especially not of 
the SGL. A few also mentioned diverging rulings of the European Court of Justice and 
decisions of NCAs.186 Finally, NCAs report only limited experience in the application of 
the  MVBER  regime,  and  highlight  that  in  certain  Member  States,  courts  have  applied 
national rules on abuse of dominance instead of the MVBER rules to particular practices 
(e.g., refusal to access technical information). 

Based  on  the  evidence  gathered,  it  appears  that  the  MVBER  regime  provides  added 
value. In particular, the MVBER regime appears to have made it easier for NCAs and 
national courts to apply the rules consistently increasing legal certainty and guidance as 
compared  to  existing,  more  general  and  nationally  fragmented  guidance  on  the 

185   See Annex 3 and 6.  
186   An  example  given  was  the  recent  decision  by  the  German  Federal  Cartel  Office  regarding  provisions  within 
selective  distribution  agreements  that  prohibited  distributors  from  selling  products  via  third-party  platforms 
(German Competition Authority, Intersport, Press release, 25 June 2020). 

60 

 
 
 
 
 
 
                                                           
application  of  Article  101  of  the  Treaty  to  the  motor  vehicle  sector.  Views  of 
stakeholders suggest that national guidance, enforcement practice of NCAs and relevant 
national  case-law  could  not  have  been  equally  or  more  effective  than  the  MVBER 
regime. 

7  CONCLUSIONS 

Based  on  the  assessment  developed  in  the  previous  sections,  this  section  presents  the 
conclusions on the evaluation of the MVBER regime. 

The  substantive  scope  of  the  evaluation  comprises  four  sets  of  rules:  (i)  the  MVBER 
itself;  (ii)  the  VBER,  in  so  far  as  it  applies  to  vertical  agreements  concerning  motor 
vehicles; (iii) the VGL, which provide guidance on the application of the VBER; and (iv) 
the SGL, which provide guidance on the application of the MVBER and supplement the 
VGL with regard to the application of the VBER to the motor vehicle sector.  

The  geographic  scope  of  the  evaluation  extends  to  all  EU  Member  States.  NCAs  and 
national  courts  are  bound  by  the  directly  applicable  provisions  of  the  MVBER  and 
VBER.  Thus,  the  evaluation  of  the  MVBER  regime  includes  not  only  the  decisional 
practice of the Commission, but also that of the NCAs. 

The  evaluation  is  based  on  evidence  gathered  from  various  sources.  These  include  a 
public  consultation,  two  targeted  consultations  of  NCAs,  and  an  external  fact-finding 
study,  as  well  as  the  Commission’s  experience  gained  through  enforcement  and 
monitoring  activities  in  the  motor  vehicle  sector  over  the  last  decade.  The  evidence-
gathering during the evaluation was subject to certain limitations. First, the scope of the 
fact-finding  study  was  significantly  reduced  as  a  result  of  the  COVID-19  outbreak  and 
the  subsequent  lockdown  measures.  Second,  in  the  public  consultation,  due  to  its 
voluntary nature, some stakeholder groups accounted for a higher share of responses than 
others and limited information on consumer views was received. Finally, the enforcement 
experience of both NCAs and the Commission as regards the MVBER regime has been 
modest:  even  though  complaints  have  been  submitted  and  pursued,  few  infringements 
were detected. The above limitations did not however prevent drawing conclusions from 
the evaluation exercise. 

Overall,  the  evidence  suggests  that  the  MVBER  regime  is  useful  and  remains 
relevant for stakeholders. Nonetheless, the evaluation has identified a number of issues, 
which may limit the effectiveness, relevance and coherence of the intervention. These are 
summarised below. 

Effectiveness: The evidence gathered in the evaluation suggests that: 

-  The  intensity  of  competition  seems  to  have  increased  in  the  distribution  of  new 
passenger  cars,  but  remained  moderate  for  the  distribution  of  light  commercial 

61 

 
 
 
 
 
 
 
 
 
vehicles,  buses  and  trucks.  The  evidence  collected  for  repair  and  maintenance 
services  and  spare  parts  distribution  shows  a  mixed  picture.  On  balance,  the 
evidence does not reveal changes that would have significantly affected the MVBER 
regime’s effectiveness. 

-  The MVBER regime is overall considered to have generally met the first specific 
objective of increasing legal certainty for companies and NCAs. It also appears to 
have made it easier for NCAs and national courts to apply the rules consistently and, 
therefore, to have met the third specific objective of facilitating the enforcement 
work  of  the  relevant  authorities  and  the  stakeholders’  self-assessment  of  their 
vertical agreements by providing a common framework for the application of Article 
101 of the Treaty. Nevertheless, the evaluation identified certain provisions that: (i) 
may  benefit  from  further  clarifications;  (ii)  may  be  difficult  to  apply  or;  (iii)  may 
require adjustments due to recent market developments.   

-  The MVBER regime has generally met the second specific objective of avoiding 
false  positives  and  false  negatives.  This  means  that  the  MVBER  regime:  (i) 
generally does not exempt agreements for which it cannot be assumed with sufficient 
certainty that they satisfy the conditions of Article 101(3) of the Treaty; and that (ii) 
does  not  fail  to  exempt  agreements  that  could  be  exempted.  This  being  said,  with 
regard  to  specific  points,  some  respondents  to  the  public  consultation  and  a  few 
NCAs  mentioned  practices  that  they  believe  could  be  also  considered  as  hardcore 
restrictions. 

-  Generally  the  fourth  specific  objective  of  the  MVBER  regime  has  been  fully  or 
partially achieved. Nevertheless, potential  competition  concerns seem  to  remain, in 
particular  with  regards  to  three  aspects:  (i)  enabling  independent  repairers  to 
compete  effectively  with  authorised  repairers;  (ii)  preventing  foreclosure  of  spare 
part  producers  in  the  aftermarket;  and  (iii)  protecting  competition  between 
authorised repairers of the same brand. 

-  Against  this  background,  considering  that  the  four  specific  objectives  have  been 
generally achieved, it follows that the general objective of the MVBER regime (i.e., 
to  preserve  the  deterrent  effect  of  Article  101  of  the  Treaty  by  facilitating  the 
enforcement  work  of  the  Commission,  NCAs  and  national  courts  and  to  help 
businesses  conduct  the  self-assessment  of  their  vertical  agreements)  has  also  been 
generally  achieved.  This  conclusion  is  also  supported  by  the  general  market 
developments  and  in  particular  the  evolution  of  the  intensity  of  competition  in  the 
motor vehicle sector, especially in the passenger car segment.  

Efficiency: The evidence suggests that the MVBER regime has been efficient, as in its 
absence,  the  costs  resulting  from  assessing  compliance  of  vertical  agreements  in  the 
motor  vehicle  sector  with  Article  101  of  the  Treaty  would  have  been  higher.  Costs  are 
generally  seen  as  proportionate  to  the  benefits  brought  by  the  MVBER  regime. 

62 

 
 
 
 
 
 
Nevertheless,  the  data  collected  is  not  sufficient  to  allow  to  quantify  such  costs  and  to 
conclude clearly on whether the compliance costs have decreased. 

Relevance: The evidence suggests that the specific objectives of the MVBER regime are 
still  relevant  today.  Nevertheless,  the  evaluation  suggests  that  adjustments  might  be 
necessary  on  certain  aspects  of  the  fourth  specific  objective,  namely:  (i)  preventing 
foreclosure  of  competing  vehicle  manufacturers  and  safeguarding  their  access  to  the 
market;  (ii)  protecting  competition  between  dealers  of  the  same  brand;  and  (iii) 
preserving the deterrent effect of Article 101 of the Treaty by preventing suppliers from 
using  indirect  pressure  and  threats  to  achieve  anticompetitive  results.  Finally,  as  to  the 
material scope, the evidence suggests the current scope is still appropriate. 

Coherence:  The  evidence  suggests  that  the  different  instruments  of  the  MVBER 
regime are coherent both within and between themselves. The evidence also indicates 
that  the  MVBER  regime  is  overall  coherent  both  with  other  Commission  rules  and 
guidance  on  the  application  of  Article  101  of  the  Treaty,  as  well  as  with  other  EU 
legislation  with  relevance  for  vertical  agreements.  Nevertheless,  both  respondents  and 
NCAs identify a few areas where they perceive a lack of consistency. 

EU  added  value:  The  evidence  suggests  that  the  MVBER  regime  provides  added 
value.  In  particular,  the  MVBER  regime  appears  to  have  made  it  easier  for  NCAs  and 
national courts to apply the rules consistently. Therefore, the objective of facilitating the 
enforcement  work  of  the  relevant  authorities  and  the  stakeholders’  self-assessment  of 
their vertical agreements by providing them with legal certainty has been met. 

63 

 
 
 
 
 
 
 
Annex 1: Procedural information 

1.1 Lead DG, Decide Planning/CWP references 

the  European  Commission  ("DG 
The  Directorate-General  for  Competition  of 
Competition")  is  the  lead  DG  for  the  review  of  the  regime  applicable  to  vertical 
agreements in the motor vehicle  sector, which consists of the general block exemption 
rules,  set  out  in  Regulation  (EU)  330/2010  ("Vertical  Block  Exemption  Regulation"  or 
"VBER")  and  the  Guidelines  on  Vertical  Restraints    (“VGL”),  sector-specific  block 
exemption  provisions,  provided  for  in  Regulation  (EU)  461/2010  (the  "Motor  Vehicle 
Block  Exemption  Regulation”  or  “MVBER)"),  and  the    Supplementary  Guidelines  on 
vertical  restraints  in  agreements  for  the  sale  and  repair  of  motor  vehicles  and  for  the 
distribution  of  spare  parts  for  motor  vehicles  (“VGL”).  These  rules  are  referred  in  this 
SWD as the “MVBER regime”. 

The  review  was  registered  in  the  Decide  Planning  system  with  the  reference 
PLAN/2018/4817.187 

1.2 Organisation and timing 

The  evaluation  of  the  MVBER  regime  was  launched  on  3  December  2018,  in  order  to 
ensure  sufficient  time  to  carry  out  the  procedural  steps  required  by  the  Commission’s 
Better Regulation Guidelines. The evaluation roadmap, which set out the background of 
the evaluation as well as its purpose and scope, was published on 19 February 2019. The 
evaluation roadmap also presented the consultation activities that the Commission would 
conduct  during  the  evaluation  (notably  a  public  consultation,  an  external  fact-finding 
study  and  a  consultation  of  the  NCAs)  and  explained  the  data  collection  methodology 
that would be followed to gather relevant information for the purpose of the evaluation. 
The  evaluation  was  carried  out  in  close  cooperation  with  other  interested  Commission 
services.  The  inter-service  steering  group  ("ISSGL")  set  up  for  that  purpose  comprises 
representatives  of  the  Directorates  General  CNECT,  CLIMA,  ECFIN,  GROW,  JRC, 
ENV,  and  MOVE,  as  well  as  the  Secretariat-General  and  the  Legal  Service,  which  are 
associated by default to any such initiative. The ISSGL was consulted on the evaluation 
roadmap,  the  consultation  strategy  and  the  online  evaluation  questionnaire  aimed  at 
collecting  the  views  of  the  respondents  in  the  context  of  the  public  consultation.  The 
ISSGL  also  reviewed  the  summary  of  the  results  of  the  public  consultation  and  the 
stakeholder  workshop.  The  ISSGL  was  likewise  consulted  on  the  tender  specifications 
and the milestones for the fact-finding study. The evaluation of the MVBER regime was 
also  carried  out  in  close  cooperation  with  the  NCAs,  which  were  consulted  on  their 
enforcement experience and the performance of the regime.  

187   See  Better  Regulation  Portal  at  https://intragate.ec.europa.eu/decide/sep/index-compressed.html?Bali_3.16.6-
2021-02-22%2016:48:17#/overview-screen/view=recent-files&display=table&dossier-details-uuid=DORSALE-
DOSSIER-2018-30251. 

64 

 
 
 
 
 
                                                           
The different milestones of the evaluation phase are reflected in the table below: 

Timing 

Step 

3 December 2018 

Launch of the evaluation in the Commission’s Decide Planning 

15 January 2019 

1st ISSGL Meeting with the following agenda items: 

-  Evaluation roadmap 
-  Consultation strategy 
-  Tender specifications 

19 February 2019 

Publication of the evaluation roadmap (4-weeks comments period) 

26 November 2019 

Signature of the contract for the external study 

8 June 2020 

First questionnaire to NCAs (7-weeks consultation period) 

11 September 2020 

2nd ISSGL Meeting (video-conference) with the following agenda 
items:  

-  Questionnaire for public consultation  
- 
Intervention logic  
-  Evaluation matrix 

9 October 2020 

Submission of the final report of the external study 

12 Octobre 2020 

Second questionnaire to NCAs (5-weeks consultation period) 

12 Octobre 2020 

Publication  of  the  online  evaluation  questionnaire  (15-weeks 
consultation period) 

26 February 2021 

3rd ISSGL Meeting (video-conference) with the following agenda 
items:  

16 March 2021 

17 March 2021 

16 April 2021 

-  Presentation of summary of NCA replies 
-  Presentation of summary of external study 
-  Presentation of summary of public consultation 

Publication  of  the  summary  report  of  the  public  consultation  on 
the Better Regulation Portal. 

Publication of the summary report of NCA consultations and 
public consultation on DG Competition’s website. 

4th ISSGL Meeting (video-conference) with the following agenda 
items: 

-  Consultation on the draft Evaluation Report and draft SWD 

31 May 2021 

Publication of Evaluation Report and SWD 

65 

 
 
 
 
 
1.3 External Evaluation Support Study  

As explained in Section 4.1.3 of the SWD, the evaluation was supported by an external 
fact-finding study. The purpose of the study was to provide a detailed analysis of market 
developments with respect to three main economic activities in the motor vehicle sector – 
distribution  of  new  motor  vehicles,  provision  of  repair  and  maintenance  services  and 
distribution of spare parts on the basis of 23 qualitative and 88 quantitative indicators. 

Following  an  open  tender  process188  concluded  without  any  tenders  being  received,  it 
was  decided  to  have  recourse  to  a  negotiated  procedure  without  prior  publication  of  a 
contract notice, as laid down in Art. 164 para. (5) indent (f) of the Financial Regulation. 
Two  consultancies  that  downloaded  the  procurement  documents  from  the  eTendering 
platform  as  registered  users  were  contacted.  The  Commission  also  contacted  a 
consultancy  that  has  been  active  in  the  context  of  previous  reviews  of  the  exemption 
regime applicable to the motor vehicle sector. 

Following the negotiated procedure, a contract was signed with Ernst & Young Special 
Business  Services  (EY)  on  26  November  2019.189  According  to  Article  I.3.3  of  the 
contract, the duration of the contract could not exceed 9 months, meaning that the final 
report was due by 25 August 2020. 

In mid-March 2020, EY launched a survey, with a view to collecting primary data from 
market  participants.  The  launch  of  the  survey  coincided  with  the  escalation  of  the 
COVID-19  pandemic,  with  all  countries  covered  by  the  survey  introducing  lockdown 
measures  to  contain  its  spread  and  with  stakeholders  requesting  extensions  of  the 
deadline to reply to the contractor’s survey. Due to these special circumstances, EY was 
granted four deadline extensions and the study was finally submitted on 9 October 2020. 
The ISSGL was consulted on all the interim documents related to the fact-finding study.  

188 See OJ 2019/S 040-089199, OJ 2019/S 059-135550 and OJ 2019/S 089-212315. 
189 Award notice OJ 2019/S 240-587964. 

66 

 
 
 
 
 
 
 
                                                           
Annex 2: Key findings of fact-finding study 

1 

INTRODUCTION 

The  European  Commission  (“the  Commission”)  is  currently  evaluating  the  functioning  of  the 
motor  vehicle  block  exemption  rules,1  comprising  the  Motor  Vehicle  Block  Exemption 
Regulation  (EU)  No  461/2010  (“MVBER”),  the  application  of  the  General  Block  Exemption 
Regulation  (EU)  No  330/2010  to  the  motor  vehicle  sector  (“VBER”),  along  with  the 
Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor 
vehicles and for the distribution of spare parts for motor vehicles (“SG”) and the Guidelines on 
vertical restraints (“VGL”). 

In  this  context,  the  Commission  commissioned  a  study  on  market  developments  in  the 
distribution  of  new  motor  vehicles  and  spare  parts  and  the  provision  of  after-sales  services 
under Commission Regulation (EU) 461/2010 (“the study”). The contract was awarded to Ernst 
&  Young  Special  Business  Services  (“E&Y”)  by  virtue  of  contract  signed  on  26  November 
2019.2 The final Report was delivered on 9 November 2020. 

1  BACKGROUND INFORMATION 

The purpose of the study is to present an analysis of market developments with respect to three 
main economic activities in the motor vehicle sector – the distribution of new motor vehicles, 
the provision of repair and maintenance services and the distribution of spare parts, on the basis 
of 111 indicators (23 qualitative and 88 quantitative). 

A large proportion of these indicators required the collection of raw primary data directly from 
undertakings active in  the motor vehicle sector. E&Y proposed to  use surveys to  collect  such 
data, which would cover 89 indicators out of 111. The remaining 22 indicators were populated 
with data coming from databases. 

The launch of the survey coincided with the escalation of the COVID-19 pandemic and with the 
introduction  of  “lockdown”  measures  in  all  countries  covered  by  the  survey.  These 
circumstances affected the response rate of the survey, particularly with  respect  to  businesses 

1   Any reference to the motor vehicle block exemption rules in this document should be understood as comprising the four set 

of rules, namely the MVBER, the VBER and their respective Guidelines. 

2   Contract n. COMP/2019/005 of 26 November 2019. 

67 

 
 
 
 
 
 
 
                                                           
such as dealers, repairers and parts distributors.3  

In conclusion, the final deliverable covered (fully or partially)4 49 indicators (17 qualitative; 32 
quantitative)  of  the  111  indicators  and  failed  to  cover  62  indicators  (6  qualitative;  56 
quantitative). 

2  STRUCTURE OF THE STUDY AND METHODOLOGY 

The  study  is  structured  in  three  sections:  1)  New  motor  vehicles  and  their  distribution;  2) 
Provision of repair and maintenances services, and 3) Distribution of spare parts. 

E&Y  collected  and  analysed  data,  where  possible  at  both  aggregate  and  country  level,  for  a 
representative sample of 12 EU Member States (Austria, Belgium, Cyprus, France, Germany, 
Greece, Ireland, Italy, the Netherlands, Poland, Spain and the United Kingdom5 and of 4 vehicle 
categories:  passenger  cars  (“PC”),  light  commercial  vehicles  (“LCV”),  trucks  and  buses.  The 
study covers the period 2007-2017.6 

The following sections summarize the main findings of the study. Data limitations or data gaps, 
when relevant, are indicated in footnotes. For further details, reference should be made to the 
full text of the study and on the caveats and footnotes thereof. 

2.1  New motor vehicles and their distribution 

The study analyses new vehicle sales, market concentration, distribution patterns and financial 
performance.  

2.1.1  Size and structure of the market for new vehicle sales 

3   These circumstances led, in turn, to a postponement of the conclusion of the survey to 15 June 2020 (initially expected to 
run until 17 April 2020) and, in turn, to an extension, upon request of E&Y, of the final deadline for the delivery of the fact-
finding study. 

4   A partially covered indicator presents data gaps of diverse magnitude (e.g. one or more years missing). 
5   The  12  Member  States  were  selected  by  E&Y  to  ensure  a  balanced  representation  of  the  EU  market,  covering  all  EU 
regions, ranging from small to large, and including a broad range of economic characteristics. For the purpose of this fact-
finding study the United Kingdom is still treated as a Member State given that over the time period in scope 2007-2017, the 
United Kingdom was still part of the EU.  

6   E&Y considered statistical significance to be met when the corresponding average market share  of survey participation by 
vehicle  manufacturers  achieved  a  30%  threshold.  Indicators  for  which  the  combined  market  share  of  all  respondents  was 
inferior  to  30%  of  their  respective  market,  by  year  and  by  country,  were  not  considered  in  this  report,  unless  otherwise 
specified. E&Y specified that applying a similar minimum threshold to the answers of parts manufacturers was not possible, 
as the total value of this market is unknown and therefore it was not possible to calculate an accurate market share of the 
respondents.  The  representativeness  of  the  responses  provided  by  parts  manufacturers  was  indicated  by  providing  their 
combined global revenue (in EUR 2019) as well as their combined number of employees. 

68 

 
 
 
 
 
 
 
 
 
 
                                                           
Passenger cars 

The  study  shows  that  the  2008  financial  crisis  had  an  impact  on  sales  level  for  all  types  of 
motor vehicle. At aggregate level, the sales of PC contracted as of 2007 and reached the lowest 
level in 2013. Sales in 2017 reached 13.3 million units for the countries in scope, 4% less than 
in 2007. A similar trend affected LCVs and trucks, with 2017 sales respectively 10.5% and 13% 
lower  than  in  2007,  despite  continuous  growth  as  of  2013-2014.  Bus  sales,  despite  some 
fluctuations,  remained  stable,  with  total  sales  in  2017  only  1%  lower  than  in  2007  (24.8k  vs. 
25.1k). 

At country level, Germany is the largest market for PC, accounting for approximately 25% of 
sales  in  the  countries  in  scope.  Germany’s  sales  remained  rather  stable,  unlike  other  EU 
countries.  Notably,  Italy  moved  from  being  the  second  largest  market  in  2007  to  the  fourth; 
France lost one position (3rd to 4th). While overall PC sales contracted from 2007 to 2017, the 
change  in  sales  at  country  level  differs  significantly.  On  the  one  hand,  Poland  registered  the 
highest increase in sales (+66%), followed by Austria (+18.5%) and Germany (+9.3%). On the 
other, Greece reported a decrease of almost 70%, followed by Ireland (-29.6%), Spain (-23.1%) 
and Italy (-21.6%). 

In terms of VMs, the study shows that Volkswagen Group was the market leader across many 
of  the  countries  in  scope  during  the  period  covered,  including  Austria,  Germany,  Greece, 
Ireland, the Netherlands, Poland and Spain. PSA Group led the market in Belgium, France and 
the UK, while the FCA group was leader in Italy.7 

Light commercial vehicles, trucks and buses 

According  to  the  study,  France  is  the  largest  market  for  LCV  in  terms  of  sales  for  the  12 
countries in scope. Germany gained a position (from 4th to 3rd), while Spain lost one (from 3rd to 
4th) and Italy remained stable in fifth place. PSA Group is the market leader in Belgium, France, 
Poland  and  Spain,  while  Volkswagen  is  the  market  leader  in  Austria,  Germany  and  the 
Netherlands.  

Germany is the largest market in terms of sales of trucks, followed by France and UK. Poland 
increased its sales by 20% in the period 2007-2017, becoming the fourth largest market in terms 
of sales among the countries in scope. Sales in Spain and Italy witnessed a strong contraction of 
45% and 34% respectively. Daimler Group is the market leader in Germany and Greece, while 
TRATON Group is the market leader in Austria, Belgium, Ireland and Poland.  

7  

Since the period covered by the fact-finding study, PSA and FCA have merged to create Stellantis. 

69 

 
 
 
 
 
 
 
 
                                                           
France, Germany and UK are the first three countries in terms of buses sold in the period 2007-
2017.  CNH  Industrial  is  the  market  leader  in  France  and  Italy,  while  Daimler  Group  is  the 
market leader in Austria, Germany and Greece. The bus market in UK, Poland and Belgium is 
fragmented, with many small operators accounting for around 40% of the total sales. 

2.1.2  Breakdown of new vehicle sales by powertrain 

The  fact-finding  study  analyses  the  innovation  in  manufacturing  on  new  vehicles  in  PC  and 
trucks based on different powertrains installed in 11 of the countries in scope. 

The  use  of  alternative  powertrains  in  new  vehicle  sales  has  gradually  increased,  with  the 
proportion of fossil fuel-powered vehicles reducing slightly over the years. The implementation 
of stringent emission regulations and incentives such as free parking, access to high-occupancy 
vehicle lanes for zero-emission vehicles is likely to further drive the electrification of vehicles 
in the Member States. The total number of electric vehicles (EVs) across Europe reached about 
1 million in 2017.8 

The transition towards the use of alternate fuels for heavy commercial vehicles such as trucks 
has been slower compared to passenger cars due to multiple factors: limited economies of scale, 
long range requirements, payload mass and volume constraints, comparatively lower charging 
and refuelling infrastructure than for passenger cars.9 
The 1 million  EV milestone reached in  2017 was mostly driven by  Nordic countries. Among 
the  countries  in  scope,  Germany,  France,  the  UK  and  the  Netherlands  have  been  the  primary 
contributors  to  the  growth  in  EVs  in  total  numbers.  Favourable  government  incentives  have 
been crucial to EV adoption levels.  

An analysis of the percentage of new vehicle registrations by powertrain compared to the total 
number of new alternative fuel vehicle registrations, indicates that, among vehicles powered by 
alternative fuels, hybrid electric vehicles (HEV)10 have the highest share in the majority of the 
countries under study. In the Netherlands the electric chargeable vehicles (ECV)11 represent the 

8 

9  

vehicles 

“Electric 
2018, 
https://energyindustryreview.com/energy-efficiency/electric-vehicles-sales-in-europe-surpassed-1-million/,  accessed  on  23 
September 2020. 

Industry  Review,  August 

1  million,”  Energy 

in  Europe 

surpassed 

sales 

“Transitioning to zero-emission heavy duty freight vehicles,” The International Council of Clean Transportation, September 
2017,  https://theicct.org/sites/default/files/publications/Zero-emission-freighttrucks_ICCT-white-paper_26092017_vF.pdf, 
accessed on 3 September 2020. 

10   Hybrid electric vehicles (HEV) are full hybrids and mild hybrids. 
11   Electric  chargeable  vehicles  (ECV)  are  battery  electric  vehicles  (BEV),  extended-range  electric  vehicles  (EREV),  plug-in 

hybrid electric vehicles (PHEV) and fuel cell electric vehicles (FCEV). 

70 

 
 
 
 
 
 
                                                           
highest share, while in Italy the highest share is for the other alternative fuel vehicles (AFV).12 

2.1.3  Vehicle manufacturers’ market presence 

The  fact-finding  study  analysed  the  market  presence  of  VMs  in  the  countries  in  scope  by 
examining the new vehicle models entering or exiting a certain segment of the market, as well 
as by registering the most relevant mergers and acquisitions affecting the countries in scope. 

The fact-finding study shows that, at an aggregate level over the period covered by the study, 
more  models  of  PC  entered  the  market  than  left  it.  In  terms  of  VMs,  Mahindra  Group,  Tesla 
Motors and Tata Group had the highest number of models entering the market, while General 
Motors Group, PSA Group and Hyundai  Group  made the highest  number of models reaching 
the  end  of  production.  Segment  “C”  (compact)  appears  to  be  the  most  competitive,  with  the 
most  manufacturers  present.  A  similar  trend  affected  trucks,  with  more  than  10  VMs  were 
reported to  have withdrawn a model from  multiple segments, whereas fewer VMs introduced 
new  models.  At  aggregate  level,  Isuzu  Motors,  Toyota  Group  and  other  smaller  VMs 
introduced  new  models  in  the  heavy  and  medium  truck  segment  during  this  period,  while 
Renault-Nissan  Group,  Isuzu  Motors  and  Ford  Group  had  the  highest  number  of  models 
reaching the end of production. 

LCV  and  buses  showed  an  opposite  trend,  with  more  new  models  than  models  leaving  the 
market;  Volkswagen  Group,  Mahindra  Group  and  Hyundai  Group  registered  the  highest 
number of new models in the LCV segment, while Fiat Chrysler Automobiles, PSA Group and 
Hyundai Group had the highest number of models reaching the end of production. 

In terms of mergers and acquisitions, the main operations (in terms of value) affecting PC were 
the acquisition of Dr. Ing. h.c. F. Porsche AG by Volkswagen AG and the acquisition of Land 
Rover by Tata Motors Limited. In the heavy-duty vehicles market, the largest acquisition was 
that of MAN SE by Volkswagen AG in 2011. 

2.1.4  Market concentration of vehicle manufacturers 

The fact-finding study analyses the concentration level of the various segments by using metrics 
such  as  the  Herfindahl-Hirshman  Index,  the  CR4  index,  as  well  as  indexes  of  volatility 
(standard  deviation  and  coefficient  of  variation).  The  following  findings  are  intended  at 
aggregate level. The full study provides further analysis at country level. 

12   Other alternative fuel vehicles are vehicles other than electric: natural gas vehicles (NGV), LPG-fueled vehicles and ethanol 

(E85) vehicles. 

71 

 
 
 
 
 
 
 
 
 
                                                           
Passenger cars 

The analysis showed that the PC category has medium concentration.13 At an aggregate level, 
Volkswagen  Group,  PSA  group  and  Renault-Nissan-Mitsubishi  represent  more  than  half 
(±55%) of the average aggregated market  share in  terms  of volume. The leading VMs are, in 
order: Volkswagen Group, PSA Group, Renault-Nissan-Mitsubishi, Ford Group, Fiat Chrysler 
Automobiles, BMW Group, Daimler Group, Hyundai Group, and Toyota Group. 

In terms of closeness of competition, the fact-finding study shows that the average percentage 
difference in the market shares of the top four manufacturers decreased, at an aggregate level, 
from  5.91%  in  2007  to  5.47%  in  2017.  There  were  some  shifts  in  the  market  shares  of  the 
significant  manufacturers  throughout  the  period  in  scope.  Notably,  the  distance  between  the 
third (Renault-Nissan-Mitsubishi) and second (PSA Group) VMs decreased, mainly due to the 
decrease in  sales  of the  latter. The share of the  4th  to  the 9th  largest  VM remained relatively 
stable, while the difference in market share between the 4th and the 6th decreased over time. 

Light commercial vehicles 

The  LCV  category  is  more  concentrated  than  that  for  PCs,14  with  three  VMs  (PSA  Group, 
Renault-Nissan-Mitsubishi and Ford Group) representing more than half of the market in terms 
of  sales  in  the  countries  in  scope.  During  the  period  2007-2017,  the  sales  of  PSA  Group  and 
Renault-Nissan-Mitsubishi remained relatively stable, while some significant changes occurred 
for the other manufacturers (accounting for approximately 52.1% of the market). In particular, 
Ford Group shifted from 5th in 2011 to 3rd place in 2017. In terms of closeness of competition, 
the  average  difference  among  the  top-4  manufacturers  decreased  over  time  from  6.19%  to 
4.97%. 

Trucks and Buses 

The  truck  and  bus  categories  are  traditionally  highly  concentrated.15  At  aggregate  level,  five 
VMs  represent  more  than  97%  of  the  total  volume  in  sales  for  trucks.  Three  main  VMs 
represent more than 67% of total bus sales, while a significant portion (around 20%) is covered 
by small local manufacturers. 

13   According  to  the  study,  the  HHI  index  for  passenger  cars  category  was  1,290  in  2017.  In  empirical  literature,  a  market 

presenting an HHI index greater than 1,000 and lower than 1,800 is considered of medium concentration. 

14   HHI index equal to 1,650 in 2017. 
15   HHI index respectively equal to 2,050 for trucks and 2,010 for buses in 2017. 

72 

 
 
 
 
 
 
 
 
                                                           
2.1.5  Distribution patterns and networks 

The  fact-finding  study  analyses  the  types  of  distribution  models  used  for  each  category  of 
vehicle, the network density of passenger car dealers, the market concentration of dealers, and 
provides an overview of dealers’ remuneration at country level. 

Distribution patterns for new vehicles 

The  fact-finding  study  shows  that  quantitative  selective  distribution  is  the  preferred  model  in 
the PC category. The only Member States where VMs opted for exclusive distribution systems 
were  France  and  Italy  (12.5%  and  14.3%,  respectively  in  2017).  Innovative  channels  (mobile 
pop-up  stores,  supermarkets,  experience  centers,  third  party  platforms)  were  used  extensively 
for  sales  across  the  countries  in  scope.16  The  fact-finding  study  shows  that  there  were  no 
significant changes in these proportions across the period in scope. 

In  contrast  to  PCs,  many  VMs  present  in  the  (more  concentrated)  LCV  category  used 
qualitative  selective  distribution  systems  (50%  in  Austria  and  Italy,  40%  in  France). 
Quantitative selective distribution is prevalent in Cyprus and UK (66.7%), while 20% and 25% 
of VMs opted for exclusive distribution systems in Spain and Germany. 

Quantitative  selective  distribution  is  the  most  prevalent  distribution  method  used  for  truck 
distribution.  Some  truck  manufacturers  opted  for  qualitative  distribution  systems  in  France 
(20%),  Italy  and  Spain  (16.7%),  while  a  variable  number  of  truck  manufacturers  opted  for 
mixed systems (notably 67% in Greece, 50% in the Netherlands, 40% in Poland and Ireland). 
These proportions, however, did not significantly change over the period in scope. As for buses, 
manufacturers  opted  mainly  for  exclusive  distribution  systems.  Direct  sales  formats  are 
common for the sales of both trucks and buses. 

Network density of passenger car dealers 

The  network  density  for  car  dealers  measures  the  total  number  of  car  dealer  outlets  broken 
down by car brands in each country, per 1,000 inhabitants, during the period 2007-2017.  

The number of car dealer groups across all Member States increased from  2007 to  2011 then 
gradually declined during 2011 – 2017, leading to an overall decrease over the period in scope. 
According  to  the  fact-finding  study,  this  result  can  be  attributed  to  a  consolidation  trend 
between dealer groups. For instance, Penske Automotive expanded its independent dealer group 

16   The  low  rate  of  survey  responses  on  distribution  systems  and  innovative  channels  does  not  allow  to  make  intertemporal 

comparisons. 

73 

 
 
 
 
 
 
 
 
 
                                                           
in Europe by acquiring multiple dealer groups such as Sytner Group in the UK, Jacobs Gruppe 
in Germany, several dealerships selling Porsche, Audi, Volvo and Land Rover in Italy and by 
forming a joint venture with Portuguese based Caetano Group to capture part of the local BMW 
market.17  The  number  of  Volkswagen  dealer  groups  fell  by  1,787  year-on-year  in  2017  as  it 
aimed  to  reduce  network  size,  primarily  in  Germany,  to  strengthen  its  efforts  in  e-mobility, 
digitalization  and  consumer  loyalty.  Audi  reduced  the  number  of  dealerships  with  433  from 
2007  to  2017  and  introduced  direct  online  sales  for  fleets.  Porsche  Holding  Salzburg’s 
subsidiary PGA Motors sold 275 of its dealer outlets to Emil Frey Group and consolidated its 
French dealerships with Volkswagen brands to form a joint retailing entity: Volkswagen Group 
Retail France.18 

The  aggregate  network  density  declined  from  0.17  in  2007  to  0.14  car  outlets  per  1,000 
inhabitants in 2017. While the population of the Member States has grown over the years, the 
number  of  dealer  outlets  fell  to  57,304  outlets  in  2017,  10,831  outlets  less  than  in  2007. 
According  to  the  fact-finding  study,  VMs  reduced  their  dealer  networks  to  maintain  dealer 
profitability  and  recover  from  the  Eurozone  crisis.  Rising  real  estate  prices  in  inner  cities  are 
also  a  factor  affecting  the  number  of  dealer  outlets.  Traditional  dealer  outlets  also  face 
competition from independent “fast fitters” and Original Equipment Supplier (OES) workshops, 
which  aim  to  provide  both  parts  sales  and  aftersales  services.  This  is  also  against  the 
background  of  emerging  retail  trends  such  as  online  car  sales,  growing  demand  for  used  cars 
and fleet services and “immersive” virtual retail experiences.19 

The  analysis  of  network  density  broken  down  by  car  brands  revealed  that  French  brands 
Renault, Dacia, Peugeot and Citroen had a denser dealer network between 2007 – 2017 than did 
Nissan  and  Toyota,  which  had  the  lowest  density  dealer  networks  among  the  car  brands  in 

17   “Penske doubles up in Italy, buys 8 dealerships,” Autonews, October 2016, 

2  September 

https://www.autonews.com/article/20161004/RETAIL/161009956/penske-doubles-up-in-italy-buys-8-dealerships,  accessed 
on 
2014, 
to 
https://www.autonews.com/article/20140804/RETAIL/308049930/penske-adds-spain-to-its-overseasroster,  accessed  on  2 
September 2020. 

roster,”  Autonews,  August 

adds  Spain 

overseas 

“Penske 

2020; 

its 

18   “VW 

to 

retail 

Group's 

company 

sell 
https://europe.autonews.com/article/20170323/ANE/170329928/vw-group-s-retail-company-to-sell-275-dealerships, 
accessed  on  2  September  2020;  “Volkswagen  to  reorganize  its  dealer  network  to  take  advantage  of  future  mobility,” 
Autovista  Group,  January  2018,  https://autovistagroup.com/news-andinsights/volkswagen-reorganise-its-dealer-network-
take-advantage-future-mobility,  accessed  on  2  September  2020;  “Volkswagen  and  Audi  plan  big  dealership  network 
changes,”  Autovista  Group,  May  2017,  https://autovistagroup.com/news-and-insights/volkswagen-and-audi-plan-big-
dealership-network-changes, accessed on 2 September 2020. 

dealerships,” 

Autonews, 

March 

2017, 

275 

19   EY analysis (Automotive Retail & Distribution, October 2015); “The traditional car dealer is disappearing: flagship stores 
and virtual reality are the new trends,” Business Insider, December 2016, https://www.businessinsider.nl/auto-dealer-bmw-
audi-virtual-reality-flagshipstore/, accessed on 25 August 2020; “UK franchised dealer outlet numbers grow year on year,” 
Motor  Trader, 
https://www.motortrader.com/motor-trader-news/automotive-news/uk-franchised-dealer-outlet-numbers-
grow-year-year-30-10-2015,  accessed  on  25  August  2020;  “Auto:  the  crisis  has  reduced  the  number  of  dealerships,”  Les 
Echos,  August  2014,  https://www.lesechos.fr/2014/08/auto-la-crise-a-reduit-le-nombrede-concessions-308291,  accessed  on 
25 August 2020. 

74 

 
 
 
                                                           
analysis. The network density for all the car brands in analysis declined over the years. During 
the  Eurozone  crisis,  German  and  Asian  brands  managed  to  maintain  better  profitability 
compared to French brands.20 

Overview of dealer remuneration for vehicles (country level)21 

The  analysis  shows  that,  at  country  level,  about  20%  -  30%  of  the  VMs  offered  factory-to-
dealer incentives and a vehicle financing share across the 12 countries in scope. According to 
survey responses, some of the factory-to-dealer incentives may be included as a percentage of 
the invoice value. About 30% - 40% of VMs offered increasing volume-based bonuses, such as 
the stair-step programme.22 

Survey responses also indicated that bonuses may be based on the level of sales target achieved 
quarterly or monthly or  annually, or could  be separate volume bonuses for fleet  and personal 
car  sales.  Bonuses  may  further  be  dependent  on  improving  customer  satisfaction  and  market 
share.  Approximately  20%  of  VMs  offered  fixed  volume-based  bonuses  in  Austria,  France, 
Greece,  Ireland  and  Italy,  while  10%  of  VMs  offered  these  bonuses  in  Poland  and  the 
Netherlands. Such bonuses could also relate to compliance with targets. About 10% of VMs in 
Austria,  Spain  and  the  UK  offered  special  bonuses  for  specific  vehicle  models/  engine  types, 
which  reached  30%  in  2017,  including  bonuses  on  EVs,  stock  clearances,  age  of  stock  or 
special  trim  levels.  According  to  the  survey  results,  other  forms  of  remuneration  were  also 
offered by VMs, such as annual quality bonuses as a proportion of sales turnover. 

According  to  survey  responses  from  the  VMs,  an  analysis  of  their  sales  targets  for  dealers 
revealed that the majority were set by the VMs themselves and were volume-based. In most of 
the  countries,  the  VMs  responded  that  the  majority  of  the  targets  were  aggregated.  The 
timeframe on which those targets were set (monthly, quarterly, annual or other) varied greatly 
between the countries and over the years. The majority of those targets were, according to the 
VMs, adjustable during the year in most of the countries in scope, with an exception of Austria 
and the Netherlands where the majority of the targets  were reported to be unchangeable. The 
methodology  and  the  main  parameters  used  for  the  calculation  of  these  targets  were  in  most 

20   “Automakers 

2013, 
https://europe.autonews.com/article/20130704/ANE/130709956/automakers-strive-to-save-dealers-ineurope, accessed on 25 
August 2020. 

Autonews, 

Europe,” 

dealers 

strive 

save 

July 

to 

in 

21   The  analysis  does  not  demonstrate  an  aggregated  view  or  intertemporal  comparison  of  dealer  remuneration  for  the  12 
countries in scope given that the limited information is sourced from 10 self-identifying VM respondents for passenger cars 
and  eight  VM  respondents  for  LCVs  in  the  survey.  The  average  total  market  share  of  respondents  for  the  whole  period 
(2007, 2012 and 2017) and across all countries is approximately 24%, as such the results hereafter report the survey and no 
major conclusions for the wider market should be drawn. 

22   Stair-step  programme  is  a  programme  in  which  the  manufacturer  retroactively  pays  a  bonus  for  each  vehicle  sold  within 

certain volume thresholds. 

75 

 
 
 
 
 
                                                           
cases  a  combination  of  several  options  such  as  past  market  performance  and  forecast  market 
performance. Not meeting the sales targets had, in most cases, an impact on the dealer bonuses.  

2.1.6  Financial Performance 

The  fact-finding  study  provides  an  overview  of  VMs’  financial  performance,  by  analysing 
operating  margins  and  expenditure  on  research  and  development.  Financial  performance  of 
VMs  is  also  compared  with  the  following  industries:  computers  and  peripheral  equipment; 
communication  equipment;  consumer  electronics.  These  industries  were  selected  as  they 
present similar aspects to the motor vehicle industry: suppliers trade consumer products, have a 
large  network  of  dealers  and/or  repair  service  providers  and  distribute  spare  parts  in  the 
aftersales market. 

2.1.7  Operating margin of vehicle manufacturers 

The  average  operating  margin  of  VMs  (of  PC  and  LCV)23  increased  from  4.9%  to  6.9% 
between 2007 and 2017, along  a non-constant  trend.  In particular, some  small decreases took 
place in 2012, 2013, 2015 and 2016, and in 2008, a significant drop, due to the financial crisis, 
resulted in operating margin levels of only 1.5%. 

BMW  Group  and  Daimler  Group  (Mercedes-Benz  Cars  and  Vans)  experienced  a  quick 
recovery after the financial crisis (8.4% and 8.3% respectively in 2010, and of 8.9% and 9.6% 
respectively in 2017). Ford Motor Group also experienced a quick recovery, with an operating 
margin  of 11.3% in  2010. Renault Group, Volkswagen Group  and Fiat Chrysler Automobiles 
experienced  a  gradual  improvement  in  operating  margins  throughout  the  years  in  scope;  the 
three companies improved their operating margin to 6.8%, 4.1% and 6.9% respectively in 2017. 
PSA  Group  only  significantly  improved  its  operating  margin  from  2015  onwards,  reporting 
6.1% in 2017. Toyota Group endured a volatile period with margins varying between -2.2% and 
10.1%,  and  reported  a  slightly  lower  operating  margin  in  2017:  8.2%  compared  to  8.6%  in 
2007. 

As for trucks and buses (as with PC and LCV, several truck manufacturers also produce buses), 
Paccar reported the highest operating margins throughout the years in scope, varying between 
6%  and  15.8%.  While  Daimler  Group  Trucks  and  Buses  and  Paccar  continued  to  grow  after 
2012, Volvo Group experienced a limited decline in 2013 and 2014 before recovering to a level 
of 9.1% in 2017. CNH Industrial’s operating margin decreased from 2014 until 2016, but this 
recovered in 2017, with a reported value of 4.6%. 

23   The study highlights that most passenger car VMs are also manufacturers of LCVs, and they rarely provide their financial 
data broken down by vehicle category. Therefore, passenger cars and LCV are treated together in this section of the study. 

76 

 
 
 
 
 
 
 
                                                           
2.1.8  R&D expenditure of vehicle manufacturers24 

As a percentage of overall revenues of selected VMs making PCs and LCVs, R&D expenditure 
remained, on average, rather stable throughout  the period, despite the serious economic  crisis 
that affected the sector in 2008-2009. A slight increase from 4.3% in 2007 to 4.7% in 2017 is 
noted. BMW Group, Volkswagen Group and Daimler Group (Mercedes-Benz Cars and Vans) 
report  the  highest  R&D  expenditures  as  a  percentage  of  revenue  over  the  period  in  scope, 
varying  between  4.8%  and  7.3%.  In  contrast  Fiat  Chrysler  Automobiles  and  Hyundai  Motor 
Company seem to have invested the least in R&D, with expenditures fluctuating between 1.9% 
and 3.2% of overall revenue. 

As a percentage of overall revenues of selected VMs making trucks and buses, average R&D 
expenditure increased over the 2007-2017 period, from 3.1% to 4.1% in 2017, which contrasts 
with  the  overall  decrease  in  operating  margin.  Daimler  Group  (Daimler  Trucks  and  Buses), 
Volvo  Group  and  Paccar,  followed  more  or  less  the  same  course  over  the  years.  R&D 
expenditure was increased from 2007- 2012, decreased between 2013 and 2014 and increased 
again  from  2015  onwards.  CNH  Industrial’s  R&D  expenditure  percentage  remained  rather 
stable between 2013 and 2017, evolving from 3.6% to 3.5%. 

to 

the  other 

When looking at R&D expenditure as percentage of revenue, the range of values reported and 
their evolution over the years for all categories in the motor vehicle sector are in line with the 
range of values and the evolution thereof in the computers and peripheral equipment industry. 
As 
industries  compared,  both  consumer  electronics  manufacturers  and 
communication  equipment  manufacturers  experienced  a  dissimilar  trend  over  the  years  in 
scope, as they witnessed a stronger increase in operating margin between 2007 and 2012, while 
remaining  at  a  stable  level  between  2012  and  2017.  Manufacturers  of  communication 
equipment tended to spend a significantly higher percentage of revenue on R&D compared to 
the other industries judged to be comparable. It is notable however that the life expectancy of 
communication equipment is much shorter than is the case for vehicles: a factor which might be 
expected to imply greater R&D investments.  

2.2  Provision of repair and maintenance services 

2.2.1  Size and structure of the market for repair and maintenance services 

The total turnover generated by the maintenance and repair of motor vehicles, for all categories 
in  all  countries  in  scope  increased  from  EUR  106,065M  in  2008  to  EUR  145,608M  in  2017. 

24   See footnote 24. 

77 

 
 
 
 
 
 
 
 
                                                           
France, Germany, Italy and the UK accounted for the largest slice of the market. 

By 2017, the market for maintenance and repair had experienced significant growth compared 
to  the  position  in  2008,  particularly  in  the  United  Kingdom  (+211%  by  2017),  Germany 
(+161%) and France (+148%). 

Out of all the countries in scope, 5 reported a decline in the total value of the market for repair 
and maintenance services, with the biggest such occurring in Greece (-69% in 2017 compared 
to 2008).  

2.2.2  Size and age of vehicle parc 

The fact-finding study provides an analysis of the vehicle parc, including its size and age: the 
total size of this parc for all categories in all countries in scope increased by 13.7%, from 227M 
in  2007  to  258M  in  2017.  PC  represent  by  far  the  largest  section  of  the  vehicle  parc,  and 
increased from 197M vehicle in 2007 to 225M in 2017. The number of LCVs grew from 24.1M 
to  27.5M  over  the  same  period,  while  the  truck  fleet  was  almost  stagnant  at  5M  vehicles  on 
average. Buses made up the lowest share of the total parc, with units increasing from 565,881 to 
606,998 over the 2007-2017 period.  

At  an  aggregate  level,  across  all  countries  and  years  in  scope,  the  number  of  PC  represents 
approximately 87.1% of the size of vehicle parc. LCVs represent 10.6%, while trucks and buses 
make up 2.08% and 0.24% respectively. From 2007 to 2017, there was no significant change in 
the overall typology. 

Over  the  period  covered  by  the  fact-finding  study,  the  size  of  the  PC  parc  increased  in  all 
countries in scope, although at different rates: Poland had the largest increase (+54%), followed 
by  the  UK  (+12.9%)  and  Germany  (+12.8%).  Italy  had  the  highest  number  of  cars  per 
inhabitant (over 0.6), followed by Austria and Germany. As for the age of PC parc, Poland has, 
on average, the oldest parc (16.4 years), followed by Greece (12.3 years) and Spain (12 years), 
while  the  UK  has  the  youngest  vehicle  parc  (7.6  years),  with  Austria  and  Ireland  trailing 
slightly behind. The average age of the parc increased over the period in all countries covered 
by the fact-finding study, with the exception of Poland and Spain. For half of the countries in 
scope, the majority of the parc consisted of PC of above 10 years old, while for the other half, 
the majority of the parc was between 5-10 years old. 

The  overall  size  of  the  LCV  parc  for  all  countries  in  scope  increased  by  14.3%  over  the  11 
years,  from  24.1M  to  27.5M.  According  to  the  fact-finding  study,  this  increase  was  mainly 
driven by the growth in e-commerce, which increased demand for the types of transport service 
often carried out by LCVs. Considering the LCV parc of all countries in scope, France has the 

78 

 
 
 
 
 
 
 
 
highest share (23%, on average), followed by Spain (18.3%), Italy (15%) and UK (14.6%).  

Apart from Spain, all the other countries under fact-finding study showed a consistent increase 
in the LCV parc (Poland +41%, Germany +40%, Belgium and Austria +25%, the Netherlands 
+4%). The highest number of LCVs per inhabitant were reported in Spain, followed by France, 
Greece,  Ireland  and  Italy.  Germany  had  a  significantly  lower  number  of  LCVs  per  inhabitant 
relative  to  the  other  countries  in  scope.  According  to  the  fact-finding  study,  these  differences 
are  partly  due  to  the  difference  in  age  of  the  respective  LCV  parcs.  Greece  (15.4  years)  and 
Poland (16.1 years) had the oldest vehicle parc in 2017, while the average age of LCVs over the 
period in Austria, Belgium and the UK was around 7.5-8 years. 

The overall size of the truck parc for all countries in scope increased by approximately 7% over 
the  11  years  covered  by  the  fact-finding  study  (from  4.92M  to  5.26M).  The  biggest  annual 
increase  occurred  between  2010  and  2011,  when  the  total  size  of  the  truck  parc  increased  by 
approximately 3.6%. Italy had, on average (over 2007-2017), the largest vehicle parc for trucks 
among the countries in scope (18.9%), followed by Germany (17.8%), Poland (17.5%), United 
Kingdom  and  France  (11%).  The  average  age  of  the  parc  differed  significantly  among  the 
countries, ranging on average from 7.6 to 17.5 years. 

The overall size of the bus parc for all countries in scope increased by approximately 7.3% over 
the 11 years covered by the fact-finding study (from 566,000 to 607,000), although with falls in 
2009, 2012 and 2014. Poland had the highest percentage of buses among the countries in scope 
(17.2%),  followed  by  Italy  (16.7%),  UK  (15.2%)  and  France  (14.8%).  As  for  the  trend  at 
country level, the biggest increase was observed in Poland (+32.5%), largely due to investments 
in public transport, while the biggest decrease was for Ireland (-39.9%) over the period 2007-
2017. The oldest vehicle parc was in Greece (14.2 years in 2013). Austria had the youngest fleet 
(6.37 years). 

2.2.3  Network density of repairers for passenger cars  

The  fact-finding  study  covers  the  network  density  of  repairers  for  PC  only,  in  terms  of  the 
number of authorised and independent repairers25 per 1000 inhabitants and per 1000 PC.26 

25   Authorised repairers: operating within the distribution system set up by a supplier of motor vehicles. Independent repairers: 
not  operating  within  the  distribution  system  set  up  by  the  supplier  of  the  motor  vehicles  for  which  it  provides  repair  or 
maintenance services or an authorised repairer within the distribution system of a given supplier to the extent that it provides 
repair  or  maintenance  services  for  motor  vehicles  in  respect  of  which  it  is  not  a  member  of  the  respective  supplier’s 
distribution system. 

26   Source: Eurostat, 2008-2017. Data refer to for all entities that have a NACE code registered for the repair activity. It cannot 
be excluded that these numbers include repairers with multiple activities, or for which the repair business is not their main 
activity. 

79 

 
 
 
 
 
 
 
                                                           
The  total  number  of  legal  entities  operating  as  repairers,  both  authorised  and  independent, 
increased in most countries between 2008 and 2017. Exceptions were Greece and Italy, where 
the numbers decreased, and Cyprus, where the number of legal entities decreased over the time 
period but returned to 2008 levels by 2017.  

The  density  of  the  network  (measured  by  the  number  of  legal  entities  per  1,000  inhabitants) 
varied greatly between countries. The overall average from 2008 to 2017, was 1 legal entity per 
1,000  inhabitants.  However,  Cyprus,  Greece,  Ireland,  Italy,  Poland  and  Spain  had  a  denser 
network compared to the other countries, while the Netherlands had the lowest network density, 
ranging from 0.25 legal entities per 1,000 inhabitants in 2008 to 0.40 in 2017. 

An  indication  of  the  competitive  interplay  between  repairers  can  be  gained  by  looking  at  the 
number of repair and maintenance service providers compared to the overall size of the vehicle 
parc. Overall, the number of legal entities per 1,000 PC appeared to decrease over time, in that 
the increase in the size of the vehicle parc is slightly larger (+14%) than the increase in legal 
entities (+12%) performing repair and maintenance services for PC. 

As for authorised repairers, the fact-finding study analysed the number of contracts in force and 
the total number of outlets.27  

The total number of contracts remained relatively stable in most countries throughout the years, 
with exceptions in Germany, Italy and Spain, where the number of contracts declined slightly. 
The  total  number  of  contracts  decreased  over  the  years  from  more  than  60,000  in  2007  to 
approximately  53,000  in  2016.  Most  of  the  contracts  relate  to  the  Citroen,  Volkswagen  and 
Ford brands. However, the position is not identical for all countries, as France has the highest 
numbers  of  contracts  for  the  Citroen  brand,  while  Germany  has  the  highest  number  for  the 
Volkswagen brand. With the exception of some brands, such as BMW, Hyundai and Mini, the 
general  trend  is  a  decline  in  the  number  of  contracts  for  authorised  repairers  over  the  time 
period. 

The number of authorised repairer outlets decreased in Germany, Italy and Spain, but increased 
in France, fluctuating over the time period, with a downward trend since 2013. 

For  France  and  Italy,  the  number  of  outlets  is  significantly  higher  than  the  number  of  legal 
entities,  indicating  that  it  is  common  for  multiple  outlets  to  operate  under  the  same  contract. 
The  number  of  authorised  repair  outlets  in  Ireland  is  only  5%  higher  than  the  number  of 

27   The  fact-finding  study  does  not provide  a  reasonable  overview  of  independent repairers.  According  to  the  contractor,  the 
combination  of  several  sources  (Eurostat  and  International  Car  Distribution  Program  (ICDP))  would  result  in  a  potential 
underestimation of the independent network. 

80 

 
 
 
 
 
 
 
                                                           
 
contracts  signed,  indicating  that  the  vast  majority  of  contracts  are  entered  into  for  a  single 
outlet. 

The  percentage  of  stand-alone  repairer  outlets  (i.e.,  service-only  dealer  locations)  varies 
significantly from country to country. The fact-finding study shows, on average, an increase in 
the number of authorised stand-alone repairers over time. 

The density of the authorised repair’ networks, measured by the number of outlets, shows wide 
differences between the countries studied. Austria had the highest network density, more than 
double the average, while Poland had the lowest, at between 0.04 and 0.05 authorised repairer 
outlets per 1,000 inhabitants. Over the time period, the density of the authorised repair networks 
decreased in all countries, with the exception of France and Poland. 

The  distribution  of  authorised  repair  outlets  at  the  brand  level,  reveals  top-5  VM  brands 
(Renault,  Fiat,  Ford,  Peugeot,  Citroen,  Opel/Vauxhall,  Volkswagen  and  Audi)  have 
approximately  50%  of  the  total  number  of  service  points.  With  an  exception  of  some  brands, 
such as Smart, Mini and Jaguar, the total number of outlets at brand level have decreased over 
the time period in almost all countries. 

2.2.4  Typology of services and service providers 

The  study  provides  some  indications  on  the  effect  of  brand  standards  on  the  scope  of  repair 
activities carried out  by  authorised repairers.28 70% of authorised repairers  in  the countries in 
scope  were  required  to  perform  a  full  range  of  repairs,  while  2%  were  required  to  carry  out 
body repairs only, 2% “fast-fit” repairs, and 26% other ranges of repair services.29 This position 
remained stable over the period 2007-2017.  

VMs  indicated  that  four  main  types  of  warranty  were  offered  over  the  period:  anti-corrosion 
warranty;  powertrain  warranty;  overall  warranty;  and  extended  warranty.  According  to  the 
survey  respondents,  the  length  of  the  overall  warranty  (covering  any  defect  attributable  to 
manufacturing  or  assembly  fault  and  usually  expressed  both  in  mileage  and  years),  remained 
stable  over  the  period  covered  by  the  study  and  did  not  vary  significantly  between  countries. 
Based on the contributions of the VMs participating in the survey, the overall warranty covered, 
on average, 100,000 km and 2 years in all countries, except for France, where it is reported to 
cover 200,000 km. 

28   Based  on  vehicle  manufacturers’  replies  to  the  survey,  covering  a  minimum  of  20%  of  the  market  shares  for  all  vehicle 

categories. 

29    This latter category contains variants such as: no formal requirements, a requirement for accessory assembly in addition to 

full-range repair, and full-range repairers allowing the option for subcontracting body repair. 

81 

 
 
 
 
 
 
 
 
                                                           
The VMs reported that, for all countries in scope, the anti-corrosion warranty (covering repair 
or  replacement  of  corroded  parts  of  the  vehicle’s  bodywork  and  sub-frame  subject  to  them 
being  a  result  of  a  manufacturer  defect,  material  fault  or  the  application  of  anticorrosion 
products  recommended  by  the  manufacturer)  is  expressed  in  years,  and  the  average  ranged 
between 11.4 and 13 years over the time period covered by the study. 

The VMs reported that, for all countries in scope, the power train warranty (the warranty that 
covers the systems and components that make a car run including the engine, transmission and 
drivetrain) stayed stable at 2 years over the time period covered by the study. However, when 
measured in mileage, there is a variation between the different countries.  

2.2.5  Typology of repairers 

The study analyses the contractual ties between parts manufacturers and independent repairers, 
with a view to getting insights into the typology of repairers.30  

Parts  manufacturers  (“PMs”)  responding  to  the  survey  mainly  indicated  that  their  dealers 
benefited  from  “fidelity”  programmes,  in  the  form  of  volume/value-based  discounts  (ranging 
from  29%-  50%  among  the  countries  in  scope),  or  no  contractual  relationships  at  all  (14%  - 
57% of the respondents). Other similar provisions include financial and/or framework contracts 
or loyalty programs. 

Based  on  contributions  from  trade  associations,  the  study  reports  that  over  the  years,  the 
efficiency of spare part distribution within the wholesale level has been increasingly optimised, 
evolving from a three-layered distribution system to one with only two-layers, and also shifting 
towards  more  direct  distribution  models  and  partnerships.  More  recently,  wholesalers  are 
increasingly  introducing  services  to  assist  repairers  with  marketing  and  communication, 
education  and  training,  process  automation  and  business  intelligence  linked  to  volume-based 
parts turnover.31 

2.2.6  Typology of technical information and vehicle data 

The  study  provides  a  description  of  the  types  of  vehicle-generated  data  provided  by  VMs  to 
authorised  repairers,  and  the  extent  and  conditions  of  independent  repairers’  access  to  these 
data, based on the opinion of vehicle and parts manufacturers.32 

30   This section only reflects the view of parts manufacturers as the number of replies by independent manufacturers was too 

limited. 

31   Stakeholder consultations conducted with CECRA and its national members. 
32   The fact-finding study does not include the views of repairers, given the low response rate of this category. 

82 

 
 
 
 
 
 
 
 
                                                           
According to the VMs responding to the survey, in 2007, the majority of technical information 
for  both  authorised  and  independent  repairers,  was  passed  on  through  documents.  The 
importance  of  documents  as  a  means  of  accessing  vehicle-generated  information  in  2017 
appears  to  have  decreased  relative  to  2007,  as  can  be  expected  from  the  impact  of  increased 
digitization.  By  2017  websites  had  become  the  second  most  frequently-used  source  (after 
documents) for both authorised and independent repairers. 

The  use  of  plug-in  devices  slightly  decreased  for  authorised  repairers  in  2017  compared  to 
2007, while the opposite was true for independent  repairers.  For both, the use of servers as  a 
source for accessing different types of data increased over the years. 

As for the type of data accessed by repairers, in 2007, a number of types were accessed, mainly 
through  documents,  in  particular  aggregated  driver  data,  driver-specific  data,  other  data  and 
traffic/road data are, for both authorised and independent repairers. 

To obtain aggregated data from  many vehicles, the VMs indicate  a nearly  even split  between 
the  four  sources  for  authorised  repairers,  as  well  as  a  nearly  even  split  between  documents, 
server access and website access for independent repairers. The use of documents as the source 
for accessing aggregated driver data and driver-specific data decreased over the years for both 
independent and authorised repairers and was gradually replaced by server and website access.  

2.3  Distribution of spare parts 

2.3.1  Size and structure of the market for sales of spare parts 

The study highlights that the market size for spare parts supply (PMs’ sales) for the 12 countries 
in scope increased by 29.8% in terms of sales value, from EUR 160.5 billion in 2008 to EUR 
208.4 billion in 2017. The increase was not continuous over the years: in particular, market size 
decreased by 25.4% in 2009, as a result of the 2008 economic crisis. 

At  country  level,  Germany  represented  the  largest  market  for  motor  vehicle    PMs  among  the 
countries  in  scope,  with  43.7%  of  total  sales  (in  value)  in  the  country,  followed  by  France 
(12.4%) and Italy (11.8%). 

As for motor vehicle spare parts distributors (SPDs), Germany represents the largest market for 
SPDs, with 31.7% of total sales, followed by the UK (21.5%) and France (18.8%). The trend in 
all countries was very volatile throughout the period 2007-2017. 

83 

 
 
 
 
 
 
 
 
 
 
 
2.3.2  Distribution patterns and networks 

This section summarizes the study results at aggregate level (i.e. considering all the countries in 
scope).  The  full  study  provides  also  a  country-by-country  analysis,  where  this  is  possible/ 
supported by sufficient data.  

Vehicle manufacturers 

Based  on  survey  replies,33  the  study  showed  that  at  aggregate  level,  between  2007  and  2017, 
VMs  primarily  used  qualitative  selective  systems  for  spare  parts  distribution.  Respondents  in 
the LCV, truck and bus segments also used quantitative selection and exclusive distribution for 
this purpose. 

During  this  period,  innovative  channels  were  seldom  used  for  spare  parts  sales.  Survey  data 
indicated the occasional  use of e-commerce websites owned by respondents for passenger car 
spare  parts  sales  in  2017.  The  responses  also  revealed  that  VM-owned  distribution  outlets 
constituted only 10% - 30% of the total sales in all vehicle categories during 2007 – 2017. 

Parts manufacturers 

The  study  analyses  parts  manufacturers’  distribution  patterns  in  all  Member  States  over  the 
period 2007-2017, broken down by type of customer (VMs, final customers, parts wholesalers, 
repairers).34  Over  this  period,  at  an  aggregate  level,  for  all  vehicle  categories,  parts 
manufacturers  primarily  supplied  parts  to  parts  wholesalers  and  VMs.  A  small  proportion  of 
PMs  (5%  -  30%  of  respondents)  supplied  spare  parts  to  final  customers,  again  for  all  vehicle 
categories. 

To some extent, survey respondents used innovative distribution channels for spare parts sales; 
in particular, parts manufacturers used their own websites for ecommerce, and by 2012, direct 
sales of spare parts had increased for all vehicle categories.35 20% - 40% of survey respondents 

33   This section of the fact-finding study is based survey responses by vehicle manufacturers. To establish the significance of 
the replies, the contractor considered the average total market share represented by the respondents for each section. This 
figure  varies  greatly  section  by  section  and  country  by  country,  therefore  the  findings  of  this  section  of  the  study  should 
generally  not  be  extended  to  the  entire  population.  The  study  provides  detailed  explanations  for  each  indicator  on  the 
coverage (e.g. number of respondents, market shares represented by the respondents, etc.), and it generally excludes those 
indicators for which a minimum coverage was not reached.  

34   This  section  of  the  fact-finding  study  is  based  on  survey  responses  collected  from  eight  part  manufacturers,  jointly 

representing EUR 104 billion in global sales and 445,000 employees (2019). 

35   Results based on the responses of ten part manufacturers, jointly representing EUR 168 billion in global sales and 817,000 

employees (2019). 

84 

 
 
 
 
 
 
 
 
                                                           
across all vehicle categories did not use any innovative distribution channel for spare parts sales 
during 2007  – 2017, while the role played by third-party platforms  in  e-commerce and direct 
sales of spare parts either remained constant or decreased for all vehicle categories during 2007 
– 2017. Supermarkets were used by respondents in countries such as France, Italy and the UK 
for PC and LCV spare parts distribution during this timeframe. 

Financial information 

The  fact-finding  study  collected 
information  on 
manufacturers by analysing their operating margins.36  

the  financial  performance  of  parts 

Among the top-10  global  parts manufacturers by revenue, Michelin had the highest  operating 
margin  during  2015-2017.  Most  parts  manufacturers  recorded  an  increase  in  their  operating 
margin over this period, while Continental AG, Robert Bosch GmbH and Benteler International 
AG experienced some declines.  

The fact-finding study also calculated the median, average, 90th-percentile and 10th-percentile 
of  the  same  1,122  global  parts  manufacturers.  The  median  and  average  operating  margins 
remained stable over the years in scope, except for 2009, where the average dropped to 3.6% 
and 2017 where both the median value and average value amounted to 7.7%. 

The 90th-percentile indicates the minimum operating margin reported by the top 10 percent of 
parts  manufacturers  based  on  operating  margins.  The  top-performing  PMs  increased  their 
operating margin from 16.8% in 2007 to 18.6% in 2017 (with a drop to 14.4% in 2009). 

The  10th-percentile  indicates  the  maximum  operating  margin  reported  by  the  10%  of  parts 
manufacturers  with  the  lowest  operating  margins.  These  firms  report  negative  operating 
margins in all but 2 years. In 2009, they observed a decrease of their operating margin to -7%, 
although in later years these companies were able to recover. 

36   Data  were  calculated  based  on  data  of  1,120  global  parts  manufacturers,  including  multi-line  part  manufacturers,  with 

activities beyond the automotive industry and geographic coverage beyond the countries in scope of the study. 

85 

 
 
 
 
 
 
 
 
 
                                                           
 Annex 3: Consultations 

This  annex  presents  the  results  of  the  consultation  activities  performed  in  the  context  of  the 
evaluation  of the MVBER regime. The objective of the consultation  process  was to  collect  in-
depth and high quality evidence on the key competition issues arising in vertical relationships in 
the motor vehicles sector from the perspective of the businesses, consumers and EU competition 
law enforcers.  

The various consultation activities consisted of: 

  A consultation on the evaluation roadmap; 
  An open public consultation based on an online questionnaire; 
  Two targeted consultations with NCAs. 

The different consultation activities set out in this annex aimed to gather input from stakeholders 
on  how  the  MVBER  regime  has  functioned  since  its  adoption.  To  that  end,  the  Commission 
focused in particular on trying to understand which areas of the rules have not functioned well or 
have not functioned as well as they could have, and the underlying reasons. Many stakeholders 
also  provided  input  on  the  changes  they  consider  necessary  to  improve  the  functioning  of  the 
rules  and  what  these  changes  should  look  like.  This  input  has  been  analysed  and  taken  into 
account,  to  the  extent  that  it  provided  useful  insights  into  why  the  rules  are  considered  not  to 
have  functioned  as  well  as  they  could  have.  Any  reference  to  such  proposed  changes  by 
stakeholders in the following summaries of the various consultation activities should therefore be 
understood in this context. 

1.  Consultation on the Evaluation Roadmap 

1.1.Overview of respondents 

The  consultation  on  the  roadmap  ran  between  19  February  2019  and  19  March  2019.  The 
Commission received a total of 32 submissions as feedback to the evaluation roadmap.  
The large majority of the entities that provided feedback were business associations, followed by 
companies. Feedback was also received from one citizen, one consumer organization, one non-
governmental  organization,  one  trade  union  and  two  other  entities.  Stakeholders  represented 
different levels of the supply chain of the motor vehicles sector. As to the breakdown by country 
of origin, 9 respondents were domiciled in Belgium, 6 in Spain, 4 in Austria, 3 in France, 2 in 
Germany, 2 in Italy, 2 in the UK, 1 each in Czech Republic, Denmark, Finland and Poland. 

1.2.Overview of submissions 

86 

 
 
 
 
 
 
 
 
 
The views put forward by stakeholders were varied and sometimes conflicting. 

Vehicle  manufacturers,  represented  by  their  European  association,  ACEA,  expressed  their 
content with the current regime and the flexibility that it provided, which, they claimed, allowed 
them  to  optimise  their  networks  and  adapt  them  to  technological  developments  and  changing 
customer  expectations.  They  therefore  indicated  that  they  advocate  the  preservation  of  the 
current  principles,  while  at  the  same  time  proposing  that  legal  certainty  could  be  improved  if 
certain provisions of the current Guidelines were included in future regulations. 

As to  motor vehicle dealers, their European association,  CECRA, claimed that the abolition of 
certain  conditions1  for  the  application  of  the  previous  MVBER  had  increased  contractual 
“imbalances”  between  vehicle  manufacturers  and  dealers.  This  argument  was  also  put  forward 
by other associations representing dealers, such as Federauto, ZDK, CNPA, BF and GANVAM, 
some of which further pointed to related issues of increased financial pressure facing dealers, due 
to  the  alleged  shifting  of  costs  and  investment  requirements  from  vehicle  manufacturers  to  the 
authorised  networks.  Finally,  this  category  of  stakeholders  stressed  their  wish  for  a  future 
MVBER  to  capture  vehicle  manufacturers’  new  technically  advanced  capabilities  to  prevent, 
restrict and distort competition, without however elaborating further on the nature and scope of 
such capabilities.  

The  spare  parts  manufacturers'  association,  CLEPA,  claimed  that  the  MVBER  provisions  on 
original  equipment  suppliers’  access  to  the  aftermarket  have  been  circumvented  by  vehicle 
manufacturers  by  means  of  both  legal  (invocation  of  tooling  rights  and  IPRs)  and  technical 
restrictions (withholding of necessary software). 

The  independent  aftermarket,  which  was  the  most  widely  represented  group  of  stakeholders  in 
the  consultation,  focused  on  the  significance  of  ensuring  aftermarket  operators’  non-
discriminatory  access  to  spare  parts  and  to  information  relevant  for  the  provision  of  aftersales 
services, notably repair and maintenance. In this connection, many stakeholders underlined that 
vehicle manufacturers have developed indirect means of circumventing their obligation to ensure 
an  equal  footing  for  authorised  and  independent  operators,  such  as  application  of  extended 
warranties,  burdensome  accreditation  processes,  steering  of  demand  towards  the  authorised 
networks and withholding of captive parts. Moreover, many aftermarket operators set particular 
store  by  the  necessity  to  take  the  specific  situation  of  SMEs  into  account,  pointing  to  their 
significance for the European economy and employment. Finally, almost all stakeholders of this 
category drew the Commission’s attention to the emerging issue of access to in-vehicle data and 
resources and to what they perceive as an attempt by vehicle manufacturers to take advantage of 

1  

Mainly contained in Article 3 of the previous MVBER (Regulation 1400/2002). 

87 

 
 
 
 
 
                                                           
their function as designers of the vehicle architecture to maintain and entrench their position as 
exclusive gatekeepers to such data and resources.  

Insurers  were  another  group  of  stakeholders  that  focused  on  the  implications  of  increasing 
digitalisation. In this regard, they asked for the digitised automotive services to be brought under 
the MVBER, pointing to the need for a regulatory framework that ensures open, standardised and 
interoperable access to in-vehicle data for all economic operators upon consent of the driver. 

Rental and leasing companies’ associations also  touched upon the issue of access  to  in-vehicle 
data,  advocating  a  regulatory  framework  that  would  provide  for  unrestricted  access.  They  also 
expressed  concerns  with  regard  to  the  alleged  onerous  requirements  put  in  place  by  vehicle 
manufacturers as to the proof required for a warranty to be honoured.  

The  response  from  consumers  was  muted,  in  that  no  consumer  association  in  the  strict  sense 
chose to  respond to  the consultation.  The Commission  did, however, receive two contributions 
from  related  types  of  association:  one  from  the  FIA  (which  has  a  broad  spread  of  commercial 
interests, and also acts as a motorists’ organization) .and the other from the ÖAMTC, which is a 
national motorists’ club. These submissions focused mainly on the significance of safeguarding 
independent operators’ access to spare parts and technical information, as well as on the need to 
prevent vehicle manufacturers’ alleged monopoly over in-vehicle data.  

All  in  all,  stakeholders  appeared  as  unanimously  supporting  the  preservation  of  the  current 
regime’s basic principles, with all but vehicle manufacturers expressing the view that this regime 
should  be  further  reinforced,  notably  to  address  current  and  future  challenges  arising  due  to 
increasing digitalisation.  

2.  Summary of the open public consultation 

A summary report of the open public consultation was published on both the Better Regulation 
Portal2 and the dedicated MVBER review webpage on DG Competition’s website3 on 16 March 
2021 and 17 March 2021 respectively. 

2.1.Introduction 

The  European  Commission  (“the  Commission”)  is  currently  evaluating  the  functioning  of  the 

2  

3  

See:  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/2008-Evaluation-of-the-Motor-Vehicle-Block-
Exemption-Regulation/public-consultation 

See: https://ec.europa.eu/competition/sectors/motor_vehicles/legislation/mvber_review.html 

88 

 
 
 
 
 
 
 
 
 
                                                           
motor  vehicle  block  exemption  rules,4  comprising  the  Motor  Vehicle  Block  Exemption 
Regulation (EU) No 461/20105 (“MVBER”), the application of the General Block Exemption 
Regulation  (EU)  No  330/2010  to  the  motor  vehicle  sector6  (“VBER”),  along  with  the 
Supplementary Guidelines7 (“SGL”) and the Guidelines on vertical restraints8 (“VGL”). 

In this context, the Commission launched a public consultation on 12 October 2020. Although 
the consultation was initially planned to run for 12 weeks, the Commission decided to extend 
this period to 15 weeks to accommodate COVID-19-related difficulties. The consultation was 
finally  closed  on  25  January  2021.  The  aim  of  the  consultation  was  to  gather  stakeholders’ 
views  and  evidence  to  assess  whether  and  to  what  extent  the  objectives  of  the  motor  vehicle 
block  exemption  rules  have  been  fulfilled,  as  well  as  to  collect  facts  on  the  key  competition 
issues arising in vertical relationships in the motor vehicles sector.  

The questionnaire for the consultation was published in English, but participants could reply in 
any of the 24 official languages of the EU. The consultation was promoted through Twitter and 
the DG Competition website. 

The  Commission  received  84  contributions  to  the  public  consultation,  which  were  submitted 
through  the  online  questionnaire  tool.  17  participating  stakeholders  also  submitted  position 
papers, which largely echoed the issues raised in the contributions to the public consultation. 

The  statistics  computed  in  this  summary  are  based  only  on  contributions  to  the  public 
consultation  submitted  through  the  online  questionnaire.  The  input  has  been  analysed  using  a 
data analysis tool9, and completed by manual analysis. 

The contributions received cannot be regarded as the official position of the Commission and its 
services  and,  thus,  do  not  bind  the  Commission.  The  summary  of  the  contributions  is 
preliminary and does not prejudge the findings of the Staff Working Document. 

4   Any reference to the motor vehicle block exemption rules in this document should be understood as comprising the four set 

of rules, namely the MVBER, the VBER and their respective Guidelines. 

5   Commission  Regulation  (EU)  No  461/2010  of  27  May  2010  on  the  application  of  Article  101(3)  of  the  Treaty  on  the 
Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector. 
OJ L 129, 28.5.2010. 

6   Commission  Regulation  (EU)  No  330/2010  of  20  April  2010  on  the  application  of  Article  101(3)  of  the  Treaty  on  the 
Functioning of the European Union to categories of vertical agreements and concerted practices. OJ L 102, 23.4.2010. 
7   Commission  notice  —  Supplementary  guidelines  on  vertical  restraints  in  agreements  for  the  sale  and  repair  of  motor 

vehicles and for the distribution of spare parts for motor vehicles. OJ C 138, 28.5.2010. 

8   Guidelines on Vertical Restraints. OJ C 130, 19.5.2010. 
9   The tool used is Doris Public Consultation Dashboard, an internal Commission tool for analyzing and visualizing replies to 
public  consultations.  It  relies  on  open-source  libraries  using  machine-learning  techniques  and  allows  for  the  automatic 
creation of charts for closed questions, the extraction of keywords and named entities from free-text answers as well as the 
filtering of replies, sentiment analysis and clustering. 

89 

 
 
 
 
 
 
                                                           
2.2.Profile of respondents  

Among  the  84  respondents  to  the  consultation,  there  were  37  business  associations;  30 
company/business  organizations;  2  consumer  organizations;10  1  EU  citizen;  1  non-
governmental  organization;  1  academic/research  institution;  1  public  authority;  1  trade  union; 
and 10 other.11 The large majority of the contributions were submitted in English.12 

The distribution of replies across organization size is relatively homogenous with 30 micro (1 to 
9 employees); 21 small (10 to 49 employees); 19 large (250 or more employees); 13 medium 
organizations (50 to 249 employees); and, 1 EU citizen. Table 1 below shows the geographic 
origin of respondents.13  

Country 
Belgium 
Netherlands 
Germany 
UK 
France  
Austria 
Spain 
Italy  
Finland 
Czech 
Republic 
Denmark 
Sweden 
Switzerland 
Ireland 
Norway  
Portugal 

Count 
13 
12 
11 
10 
8 
7 
5 
4 
3 
2 

2 
2 
2 
1 
1 
1 

Table 1 - Distribution of respondent associations across countries 

Respondents  which  contributed  on  behalf  of  a  company/business  organization  or  business 
association presented themselves as active at various levels of the motor vehicle supply chain. 

10   The 2 respondents which identified as “consumer organizations” are actually motorists associations. 
11   The 10 stakeholders, which identified as “other” include associations and companies. 
12   A few contributions were submitted in German (13), French (3), Finnish (2) and Spanish (1).  
13  

It should be noted that most of the respondents that selected “Belgium” as country of origin are associations of European 
scope, which are based in Brussels.   

90 

 
 
 
 
 
                                                           
In particular, 27 respondents identified themselves as non-authorised parts dealers; 22 as non-
authorised repairers; 15 as authorised parts dealers; 14 as authorised repairers; 14 as authorised 
dealers; 10 as parts manufacturers; 10 as non-authorised dealers; 9 as vehicle leasing / rental; 6 
as vehicle importers; 5 as intermediaries purchasing vehicles on behalf of individual identified 
end consumers; 4 as vehicle manufacturers (“VMs”); 3 as agents selling vehicles on behalf of 
one  or  more  VMs  /  importers;  and  3  as  agents  selling  vehicles  on  behalf  of  one  or  more 
dealers14.  1  respondent  identified  as  a  law  firm  acting  on  its  own  account.  In  addition,  25 
respondents did not indicate main function / activity.15  

As for the type of product concerned by the business of the respondents, 58 declared themselves 
to be active in the passenger cars segment; 53 in light commercial vehicles; 38 in heavy goods 
vehicles; 30 in buses and coaches; and, 9 in other.16  

2.3.Contributions 

The questions of the public consultation were  structured around the five evaluation criteria of 
the Better Regulation Guidelines,17 namely, effectiveness, efficiency, relevance, coherence and 
EU  added  value.  The  below  summary  follows  this  structure  and  only  represents  the  views  of 
those that participated in the consultation. As the content of this summary is not the result of a 
large-scale survey, statistics regarding number of respondents supporting a particular view may 
not be representative of the actual views of all market operators.  

2.3.1.  Effectiveness (Have the objectives been met?)18 

In order to evaluate whether the motor vehicle block exemption rules have met their objectives, 
respondents were asked to answer several sets of questions. 

It should be noted that some of the respondents selected several main functions / activities. 

14  
15   These  include  (i)  data  publishers;  (ii)  insurance  companies  /  associations;  (iii)  car  dealers  and  repairers  associations;  (iv) 
garage  equipment  associations;  (v)  public  entities;  (vi)  an  association  of  importers  of  spare  parts,  accessories  and  garage 
equipment; (vii) an academic institution; (viii) an oil recycling company; (ix) an automotive industry staff association; (x) an 
automotive industry consultancy; and, (xi) a competition lawyers association. 

16   Some  of  the  respondents  selected  several  segments  and  26  respondents  did  not  specify  the  product  concerned  by  their 

business. 

17   The better regulation requirements are  about designing and evaluating EU policies and laws transparently on the basis of 
evidence  and  the  views  of  stakeholders  and  citizens.  They  are  applicable  to  all  policy  areas  and  aim  for  targeted  and 
proportionate  regulation  that  does  not  go  further  than  required  to  achieve  a  given  objective,  while  bringing  benefits  at 
minimum cost. 

18   Respondents  which  did  not  provide  any  reply  to  any  of  the  questions  of  the  “Effectiveness”  section  are  not  taken  into 

account in the graphs below.  

91 

 
 
 
 
 
 
 
 
                                                           
Intensity of competition  

The first question of this set  enquired whether respondents  believed that  competition in  new 
motor vehicle distribution had intensified, weakened or stayed the same since 2010.  

Figure 1 – Changes in intensity of competition in the new motor vehicles distribution sector 

The group of respondents claiming that competition has intensified19 referred to issues such as: 
(i) the increasing number of brands of motor vehicles in  the EU market; (ii) increasing direct 
sales  by  VMs;  (iii)  more  diversity  in  terms  of  product  variety  (e.g.,  hybrid,  plug-in  hybrid, 
battery  electric,  hydrogen,  etc.);  (iv)  more  offer  in  some  technologies  (e.g.,  powertrain 
technology); (v) multiple sales  channels; (vi) increase of vehicle use  (e.g., leasing, sharing or 
renting); (vii) easier access to information on new vehicles, spare parts and service agreements; 
(viii) more leverage of fleet operators; (ix) the growth of repairer networks; (x) the impact of 
COVID-19 on demand and, thus, on competition; and, (xi) the better access to data thanks to 
publishers. 

The  group  of  respondents  claiming  that  competition  has  weakened20  pointed  at:  (i) 
consolidation of the market; (ii) large groups of dealers continuing to grow, while numbers of 
SME  dealers  continues  to  decrease;  and,  (iii)  the  lack  of  a  level  playing  field,  reducing  real 
competition.  

19   Primarily,  associations  representing  vehicle  dealers,  importers  or  manufacturers,  but  also  companies  (mainly  parts 

manufacturers and dealers). 

20   Primarily,  associations  representing  vehicle  importers  and  part  dealers,  but  also  companies  (mainly  vehicle  leasing/rental 

companies and repairers). 

92 

 
 
 
 
 
 
 
 
                                                           
The second question of this set enquired whether respondents believed  competition in repair 
and maintenance services for motor vehicles had intensified, weakened or stayed the same 
since 2010.  

Figure 2 - Changes in intensity of competition in R&M 

The  group  of  respondents  claiming  that  competition  has  intensified21  referred  to  a  number  of 
factors to justify their views, such as (i) e-commerce; (ii) VBER/MVBER rules; (iii) growth in 
the  business  of  independent  aftermarket  (“IAM”)  operators;  (iv)  on-line  reviews  of  repairers 
and  more  price  transparency;  (vi)  authorised  repairers’  provision  of  aftersales  services  for 
several  brands;  (vii)  an  increase  in  competition  between  authorised  and  non-authorised 
repairers; and, (viii) pressure from leasing / rental companies, which want to build up their own 
service networks. 

The  group  of  respondents  claiming  that  competition  has  weakened22  pointed,  among  other 
things,  at  (i)  issues  faced  in  accessing  technical  information  (restrictions/too  cumbersome/too 
expensive);  (ii)  restrictive  warranty  terms;  (iii)  the  decreasing  number  of  repairers  in  some 
European  regions;  (iv)  captive  spare  parts  and  requirements  to  activate  spare  parts  after 
installation; (iv) restrictions on access to tools, diagnosis, digital updates and software; and, (vi) 
technological developments in new vehicles making it harder for small independent repairers to 
provide their services effectively and affordably. 

21   Primarily,  associations  representing  vehicle  dealers,  VMs  or  part  manufacturers,  but  also  companies  (mainly  vehicle  and 

part dealers). 

22   Primarily, associations representing vehicle and part dealers, importers and agents, but also companies (mainly repairers and 

dealers). 

93 

 
 
 
 
 
   
 
 
                                                           
The  third  question  of  this  set  enquired  whether  respondents  believed  competition  in  the 
distribution  of  spare  parts  for  motor  vehicles  had  intensified,  weakened  or  stayed  the 
same since 2010.  

Figure 3 - Changes in intensity of competition in spare parts distribution 

The group of respondents claiming that competition had intensified23 noted, for example, (i) the 
positive  impact  of  MVBER;  (ii)  that  the  growth  of  e-commerce  options  boosts  price 
competition;  (iii)  the  increasing  demand  for  remanufactured/recycled  parts;  (iv)  that  big  new 
players  had  entered  the  EU  parts  distribution  market  (e.g.,  LKQ);  and,  (v)  that  although  for 
many spare parts  competition had increased, competition  issues remained with  regard to  high 
added  value  spare  parts  (e.g.,  captive  parts),  parts  where  logos  are  displayed,  parts  requiring 
activation after installation, and vehicle glass (especially for new vehicles). 

The  group  of  respondents  claiming  that  competition  had  weakened24  pointed,  among  other 
things,  at  (i)  barriers  for  data  publishers  to  access  information  on  spare  parts;  (ii)  VMs 
hindering the capacity of their networks to buy spare parts from independent suppliers; (iii) a 
significant  increase  in  prices  of  spare  parts  in  some  Member  States  (e.g.,  France);  and,  (iv) 
fewer operators in the spare parts distribution market as a result of mergers. 

23   Primarily, associations representing vehicle and part dealers or VMs, but also companies (mainly part dealers). 
24   Primarily, associations representing vehicle importers and part manufacturers, but also companies (mainly repairers). 

94 

 
 
 
 
 
 
 
                                                           
Scope of the exemption  

The first question of this set asked respondents whether they considered the MVBER threshold 
to still be appropriate today.  

Figure 4 – Appropriateness of MVBER’s threshold 

Some respondents considering the threshold to be appropriate expressed the view that there is 
no reason to depart from the 30% market threshold for the market of new cars, whereas for the 
aftermarket  the  current  approach of calculating  market  share for  each brand separately means 
that,  in  practice,  the  threshold  has  little  effect,  since  few  agreements  fall  below  it.  Some 
respondents  also  pointed  out  that  the  threshold  could  be  reconsidered  for  VMs  or  importers 
engaging  in  dual  distribution.  Some  respondents  advanced  the  view  that  the  MVBER  and/or 
SGL  should  stipulate  that  the  large  majority  of  single-branding  obligations  could  not  benefit 
from the block exemption. 

Respondents considering the threshold to be too high25 argued, for example, that the threshold 
should be lowered to 20%, due to (i) the increase in direct sales by VMs; (ii) the fact that very 
few  players  actually  reach  30%  market  shares  (e.g.,  important  groups  with  significant  market 
power hold market shares very close to 30%); or (iii) the fact that lowering the threshold could 
improve  access  to  the  original  equipment  manufacturers  (“OEMs”)  networks  for  sales  and 
aftersales services. Other respondents believed that the current threshold had had no effect on 
anti-competitive behaviour and that they would therefore suggest to lower it.  

Respondents  considering  the  threshold  to  be  too  low26  explained,  for  example,  that  the  30% 
threshold seemed too low if (i) the market for repair and maintenance (insofar as it is separate 
from the market for the sale of new motor vehicles) were considered to be brand-specific; and 

25   Primarily, associations representing parts dealers and manufacturers, but also companies (mainly part dealers and repairers). 
26   Associations representing VMs, dealers and importers, a vehicle importer and a company active in the mineral-oil market. 

95 

 
 
 
  
 
 
 
                                                           
(ii) the market shares of authorised repairers (even if legally they are separate companies) were 
attributed  to  VMs  or  if  these  were  used  as  a  proxy  for  the  position  of  VMs  on  the  upstream 
market,  as  this  would  entail  that  VMs’  agreements  regarding  repair,  maintenance  and  spare 
parts would not benefit from the exemption.   

The second question of this set asked respondents to identify any other elements, besides the 
current threshold criterion, on which the exemption should be made conditional.  

With  the  exception  of  VMs’  associations,  which  argued  that  adding  more  conditions  would 
create legal uncertainty, a majority of respondents identified conditions that could be added for 
agreements  to  benefit  from  the  exemption.  Many  parts  dealers,  parts  manufacturers  and 
repairers referred to the need to make access to technical information as a condition to benefit 
from  the  exemption  or,  as  an  alternative,  to  recognize  the  failure  to  provide  such  access  as  a 
competition  law  violation.  Another  point  raised  by  these  respondents  was  that  the  misuse  of 
warranties should be deemed as a violation of competition law or, at least, result in the loss of 
the benefit of the exemption. A few parts manufacturers and parts dealers argued that absence 
of restrictions on the freedom of choice by dealers and end users should be a condition for the 
exemption to apply. Some dealers and repairers also asked for direct sales by VMs to be capped 
at 20% of the overall sales volumes of each VM. 

An association of the vehicle leasing / rental sector argued that the “end user” status of leasing 
companies  should  be  mentioned  explicitly  in  the  VBER  and  MVBER,  as  currently  it  is  only 
found in the SGL. The exemption should be made conditional on (i) OEMs not discriminating 
between  end users; (ii)  OEMs not  applying registration and use  requirements; (iii) OEMs not 
requiring  retention  periods  for  vehicles;  and,  (iv)  purchasers  of  vehicles  not  being  obliged  by 
OEMs to provide the name of the end customer. An oil/lubricants company mentioned that the 
analysis (of the market share threshold) should take account of VMs’ market shares for both car 
sales  and  servicing  for  a  better  understanding  of  the  impact  on  the  market.  Finally,  a 
dealer/repairer argued that the exemption for the sale of new cars should be conditional on the 
admittance to the authorised network of all repairers that meet the VM’s selection criteria. 

96 

 
 
 
 
 
 
The  third  question  of  this  set  asked  respondents  whether  they  had  encountered  any  types  of 
vertical  restriction  in  the  motor  vehicle  sector  that  the  VBER  /  MVBER  do  not  list  as 
hardcore but which, in the view of the respondent, should nonetheless be considered as such. 

Figure 5 – Restrictions not listed as hardcore but that should be considered as such 

The respondents which replied affirmatively to this question27 identified the following practices 
as vertical restrictions that should be considered as hardcore: (i) direct or indirect quantitative 
criteria on the access to authorised networks (including refusal of access when quality criteria 
are met); (ii) restrictions on access to technical information and in-vehicle data for aftermarket 
operators  (including data publishers); (iii) bundling sales and  aftersales  markets,  for  example, 
by offering inclusive maintenance plans by default, which allegedly tie the sale of new cars to 
the  use  of  specific  aftermarket  providers,  or  by  including  both  sales  and  aftersales  functions 
within  the  same  contracts,  which  is  then  terminated;  (iv)  refusing  to  license  certain  rights 
necessary to allow suppliers to offer spare parts to the independent channel; (v) restrictions on 
the  sale  of  brands  from  different  suppliers;  (vi)  including  terms  in  warranties  that  require  the 
use of VMs’ brands of spare parts in respect of replacements that are not covered by the terms 
of  the  warranty;  and  (vii)  restrictions  that  were  included  in  Article  4.2  and  Article  4.1.(k)  of 
Regulation 1400/2002. 

The fourth question of this set asked respondents to indicate whether they had experienced any 
types  of  vertical  restriction  in  the  motor  vehicle  sector  that  the  VBER  did  not  list  as 
excluded but which, in their experience, should nonetheless be considered as such. 

The  majority  of  respondents  replied  negatively  to  this  question  (46).28  The  minority  of 

27   Although the profile of respondents replying in this sense is very diverse, none of the VMs associations participating in the 

consultation replied affirmatively to this question.  

28   20 respondents declared not to know and 3 did not provide an answer. 

97 

 
 
 
 
 
 
                                                           
respondents  (14)29  which  replied  affirmatively  to  this  question  identified  some  practices  that 
should be considered as excluded restrictions. For example, a couple of respondents mentioned 
that if the following restrictions are not added as hardcore, they should at least be considered as 
excluded: (i) OEMs discriminating between end-users; (ii) OEMs making sales conditional on 
registration  and  use  requirements;  (iii)  OEMs  requiring  retention  periods  for  vehicles;  (iv) 
purchasers of vehicles being obliged by OEMs to provide end customer names; and, (v) a lack 
of  fair  access  to  in-vehicle  data  for  leasing  /  rental  companies  and  other  stakeholders  in  the 
motor vehicle aftermarket. 

Another  respondent  stated  that,  to  improve  legal  certainty,  clauses  that  impose  the  use  of 
original parts or authorised-only repair/maintenance services beyond the legal guarantee period 
for brands with aftermarket shares above a certain threshold should be included in the MVBER 
or VBER as an excluded restriction. Impediments to accessing vehicle software were similarly 
suggested  as  a  potential  future  excluded  restriction.  Finally,  some  respondents  said  that  the 
specific  conditions  included  in  the  previous  MVBER  should  be  reintroduced  and  that  direct 
sales by VMs should be capped. 

The fifth question of this set asked respondents to identify any types of vertical restriction in 
the motor vehicle sector that the VBER /  MVBER listed as  hardcore but which, in their 
experience, should not be considered as such. 

Figure 6 – Current hardcore restrictions that should not be considered as such 

The majority (6) of respondents indicating that some of the current hardcore restrictions should 

29   This group of respondents included (i) some vehicle dealers and their associations; (ii) some parts manufactures/dealers and 
their  associations;  (iii)  some  repairers  and  their  associations;  (iv)  a  vehicle  leasing  association;  (v)  an  association  of 
competition law attorneys; (vi) an association of companies active in equipment for vehicles and (vii) a car data consultancy. 

98 

 
 
 
 
 
 
                                                           
no  longer  be  classified  as  such30  referred  to  resale  price  maintenance  (“RPM”)  (Article  4(a) 
VBER).  Some  of  these  pointed  out  that  although  RPM  is  currently  permitted  when  new 
products  are  launched,  companies  applying  RPM  in  this  manner  run  the  risk  of  losing  the 
exemption  for  their  entire  agreement  if  the  Commission  finds  that  on  the  facts,  the  RPM  in 
question is caught by the hardcore provision. This allegedly creates a disincentive for VMs to 
use RPM in these cases even though it can create efficiencies. Since the same should be true in 
other sectors, these respondents considered that the matter would therefore best be addressed in 
the review of the VBER.  

Some of these respondents (4) also referred to the restriction on parts/tool/equipment suppliers’ 
ability to sell to authorised/IRs/distributors or end users (Article 5(b) MVBER). However, none 
of  these  elaborated  on  the  reasons  as  to  why  this  excluded  restriction  should  no  longer  be 
considered  as  such.  A  few  respondents  (2)  referred  to:  (i)  territorial/customer  restrictions 
(Article  4(b)  VBER);  (ii)  the  restriction  of  sales  to  end  customers  by  members  of  a  selective 
distribution system (Article 4(c) VBER); (iii) the restriction of cross supplies within a selective 
distribution system (Article 4(d) VBER); (iv) the restriction of component suppliers’ ability to 
sell components as spare parts to end users or repairers (Article 4(e) VBER); (v) the restriction 
of  sales  of  spare  parts  by  members  of  a  selective  distribution  system  to  IRs  (Article  5(a) 
MVBER);  and,  (vi)  the  restriction  of  component/part  suppliers’  ability  to  place  their 
trademark/logo on the components/parts supplied (Article 5(c) MVBER).  

Although in most cases no explanations were given as to why these restrictions should not be 
excluded  from  the  block  exemptions,  one  respondent  did  elaborate  on  the  territorial/customer 
restrictions.  In  particular,  this  respondent  noted  that,  in  its  view,  in  the  context  of  selective 
distribution, there is a lack of clarity as to whether setting sales objectives and penetration goals 
in  respect  of  an  assigned  territory  could  amount  to  a  territorial  restriction.  This  respondent 
pointed out that such territorial obligations are accepted in franchising agreements. This raises 
the question of whether franchising agreements may be used in the distribution of new cars. 

The last question of this set asked respondents to identify any types of vertical restriction in 
the  motor  vehicle  sector  that  the  VBER  lists  as  excluded  but  which, in  the  respondents’ 
view, should not be considered as such.   

30   Primarily VMs associations, but also an association of competition lawyers, a car data consultancy and a parts manufacturer. 

99 

 
 
 
 
 
                                                           
Figure 7 - Current excluded restrictions that should not be considered as such 

With regard to (i) the non-compete/single-branding obligation (Articles 5(1)(a) and 5(2) VBER) 
and  (ii)  the  restriction  of  sales  of  particular  competing  suppliers  by  members  of  a  selective 
distribution  system  (Article  5(1)(c)  VBER),  certain  of  the  respondents  declaring  that  some  of 
the  current  excluded  restrictions  should  no  longer  be  classified  as  such31  mentioned  the 
desirability  of  obliging  manufacturers  to  permit  their  dealers  to  sell  other  brands  as,  in  their 
view, this  would increase consumer choice. Some other respondents  referred to  the post-term 
non-compete obligation (Articles 5(1)(b) and 5(3) VBER) as a practice that should no longer be 
considered  as  “excluded  restriction”,  however,  no  specific  explanations  were  provided  to 
support this position.  

Prevalence of particular restrictions  

The first question of this set aimed at verifying  whether the motor vehicle block exemption 
rules achieved the following specific objectives to the sector. 

On ensuring access to vehicle retail and repair markets for VMs wishing to enter new markets 
or  expand  their  market  presence,  out  of  the  respondents  that  provided  their  views  on  this 
objective,32  a  majority  considered  that  this  objective  had  been  achieved  (14)  or  partially 
achieved (9). Only a few respondents (3) declared that, in their view, this objective had not been 
achieved. None of the respondents replying that this objective had either not been achieved or 
that it had only partially been achieved provided specific explanations for their positions.   

On  protecting  competition  between  dealers  of  the  same  brand,  out  of  the  respondents  that 

31   Primarily, associations of vehicle dealers, parts dealers and repairers.  
32   43  respondents  declared  that  this  objective  was  not  relevant  to  them,  11  declared  not  to  know  and  3  did  not  provide  an 

answer. 

100 

 
 
 
 
 
 
 
                                                           
provided  their  views  on  this  objective,33  a  majority  considered  that  the  objective  had  been 
achieved (11) or partially achieved (15). Some respondents (15) declared that, in their view, this 
objective  had  not  been  achieved.  Some  respondents  considering  that  this  objective  had  either 
not  been  achieved  or  had  only  partially  been  achieved  observed  that  intra-brand  competition 
had  decreased  due  to,  among  other  things,  (i)  the  removal  of  the  sector-specific  block 
exemption  from  agreements  for  new  car  sales  which,  in  the  view  of  certain  respondents,  has 
increased  the  dependence  of  distributors  on  VMs;  (ii)  growing  concentration  and  mergers 
between  OEMs;  and,  (iii)  the  increasing  number  of  dealerships  that  are  owned  by  VMs.  In 
addition, another argument raised was that with the increasing amount of vehicle data generated 
and the wireless technologies included in vehicles, OEMs tend to create an advantage for their 
brand networks over the IAM. 

On preventing restrictions on cross-border trade in motor vehicles, out of the respondents that 
provided  their  views  on  this  objective,34  most  declared  that  it  had  been  achieved  (23)  or 
partially  achieved  (5).  Some  (9)  expressed  that,  in  their  view,  this  objective  had  not  been 
achieved. Some of the respondents considering that this objective had either not been achieved 
or had only partially been achieved explained that, in their view, manufacturers had effectively 
segmented the EU Single Market into national markets, thereby obstructing any real EU-wide 
competition; and that intra-brand competition between dealers only exists at the national level.   

On enabling independent repairers to compete effectively with authorised repairers, out of the 
respondents  that  provided  their  views  on  this  objective,35  a  majority  opined  that  either  this 
objective  had  been  partially  achieved  (46)  or  fully  achieved  (11).  Some  declared  that  this 
objective had not been achieved (19). Some of the respondents considering that this objective 
had either not been achieved or had only partially been achieved referred to (i) restrictions on 
access  to  OEM-branded  (captive)  parts  (e.g.,  issues  to  source  them  efficiently  and  in  a  cost 
effective manner through independent distributors); (ii) limitations on independent publishers’ 
access  to  full/up-to-date  technical  information;  (iii)  OEMs  preventing  access  to  aftermarket 
diagnostics technologies (this allegedly leads to independent repairers being mainly focused on 
basic  repairs/common  maintenance,  while  more  sophisticated  interventions  are  conducted  by 
authorised  repairers);  (iv)  restrictions  on  access  to  in-vehicle  data  and  security-related 
functions;  (v)  misuse  of  warranties  by  VMs  to  push  consumers  towards  their  network  of 
authorised repairers.  

On  protecting  competition  between  authorised  repairers  of  the  same  brand,  out  of  the 

33   35  respondents  declared  that  this  objective  was  not  relevant  to  them,  5  declared  not  to  know  and  2  did  not  provide  an 

answer. 

34   38 respondents declared that the objective was not relevant to them, 5 declared not to know and 3 did not provide an answer. 
35   A few respondents declared that the objective was not relevant to them (2), that they did not know (4) or did not provide an 

answer (1). 

101 

 
 
 
 
                                                           
respondents that provided their views on this objective,36 the majority said that it had been fully 
achieved (14) or partially achieved (30). Some (17) believed it had not been achieved. Some of 
the  respondents  considering  that  this  objective  had  either  not  been  achieved  or  had  only 
partially  been  achieved  referred  to  (i)  refusals  to  allow  access  to  official  networks  or 
termination  of  contracts  that  provide  for  both  vehicle  sales  and  aftersales  functions,  thereby 
reducing  intra-brand  competition;  (ii)  application  of  disadvantages  (bonus  schemes,  audits)  if 
authorised  repairers  do  not  use  official  spare  parts;  (iii)  intra-brand  competition  between 
authorised repairers is limited to national level.  

On  ensuring  spare  parts  suppliers’  access  to  the  aftermarket,  out  of  the  respondents  that 
provided  their  views  on  this  objective,37  most  indicated  that  this  objective  had  been  fully 
achieved (16) or partially  achieved (43). Some  (11) considered that it had not  been achieved. 
Some  of  the  respondents  considering  that  this  objective  had  either  not  been  achieved  or  had 
only partially been achieved referred to (i) the fact that although authorised repairers within the 
same  brand  do,  in  theory,  have  the  right  to  diversify  their  sourcing,  in  practice,  they  remain 
largely dependent on the OEMs, mainly for commercial reasons (e.g., bonuses/rebates/audits); 
(ii) restrictions on the development of aftermarket spare parts or their remanufacturing due to, 
for  example,  restrictions  brought  about  by  a  lack  of  access  to  OEMs’  parts  coding  or  the 
integration  of  logos  in  the  design;  (iii)  the  hampering  of  Tier1  suppliers  by  ‘tooling 
arrangements’ and the introduction by the OEMs of electronic codes for spare parts; (iv) spare 
parts suppliers being increasingly requested to transfer IP titles and tooling rights to OEMs; (v) 
shortages  of  particular  spare  parts  (e.g.,  vehicle  glass,  especially,  for  new  models)  as 
manufacturers  often  reserve  their  production  for  VMs  and  their  authorised  dealers,  which 
results in a shortage for the aftermarket and, therefore, limited choice and potentially increased 
costs for consumers. 

The second question of this set asked respondents whether, since 2010, they had encountered 
a  number  of  specific  restrictions  in  the  context  of  agreements  to  which  them  or  their 
clients were party. 

On  resale  price  maintenance  (Article  4(a)  VBER  and  paragraphs  48-49  and  223-229  VGL), 
only  12  respondents  reported  encountering  this  restriction  in  their  agreements,  and  only  4  of 
these  stated  to  have  contested  it.  Out  of  the  latter,  2  acknowledged  that  the  dispute  had  been 
resolved through negotiation/arbitration and none of them indicated that the dispute had ended 
up in court. 

36   A fair share of respondents replied that the objective was not relevant to them (10), that they did not know (9) or did not 

provide an answer (3).   

37   A few indicated that either they did not know (10), it was not relevant to them (2) or did not provide an answer (1). 

102 

 
 
 
 
 
                                                           
On  restriction  of  authorised  dealers’  ability  to  sell  motor  vehicles  or  spare  parts  in  other 
Member States (Article 4(b) VBER, paragraphs 50-55 VGL and paragraphs 48-50 SGL), only 7 
respondents  reported  finding  this  type  of  restriction  in  their  agreements.  6  out  of  these 
respondents marked that they had contested the restriction and 3 mentioned that the dispute had 
been resolved through negotiation/arbitration. None of the respondents stated that their disputes 
regarding this type of restriction had ended up in court.  

On  the  restriction  of  authorised  dealers’  ability  to  sell  motor  vehicles  or  spare  parts  to  end 
customers (Article 4(c)  VBER, paragraphs 56-57 VGL and paragraphs  51-52 SGL), while 22 
respondents  stated  to  have  encountered  this  type  of  restriction  in  their  agreements,  only  6  of 
them  declared  to  have  contested  it.  Out  of  the  latter,  3  said  to  have  encountered  a  solution 
through arbitration/negotiation and 2 replied by saying that “sometimes” they had resolved the 
dispute through such means. None of the respondents declared that their disputes on this issue 
had ended up in court.  

On  the  restriction  of  authorised  dealers’  ability  to  sell  motor  vehicles  or  spare  parts  to  other 
dealers within the same distribution system (cross-supplies) (Article 4(d) VBER and paragraph 
58 VGL), 3 respondents reported having encountered this restriction in their agreements. 2 of 
them  said  they  had  contested  the  restriction  and  the  same  2  mentioned  the  dispute  had  been 
resolved through arbitration/negotiation. None of the respondents indicated that the dispute had 
ended up in court. 

On the restriction of original equipment suppliers’ ability to sell spare parts to end customers or 
repairers  (Article  4(e)  VBER  and  paragraph  59  VGL),  34  respondents  reported  having 
encountered  this  restriction  in  their  agreements.  However,  only  7  acknowledged  having 
contested  the  restriction  and  6  of  them  declared  to  have  resolved  the  dispute  through 
negotiation/arbitration.  None  of  the  respondents  indicated  that  the  dispute  had  ended  up  in 
court.  

On  the  restriction  of  authorised  dealers’  ability  to  sell  spare  parts  to  independent  repairers 
(Article  5(a)  MVBER  and  paragraph  22  SGL),  whereas  26  respondents  reported  having 
encountered  this  restriction  in  their  agreements,  only  6  mentioned  that  they  had  contested  it. 
Moreover, 4 of them said that the dispute had been resolved through negotiation/arbitration and 
none of them declared that the dispute had gone to court.  

On the restriction of components / parts suppliers’ ability to place their trademark / logo on the 
components  /  parts  supplied  (Article  5(c)  MVBER  and  paragraph  24  SGL),  19  respondents 
reported having encountered this restriction in their agreements. Out of these respondents, only 
1  reported  having  contested  the  restriction  but  did  not  specify  whether  the  dispute  had  been 
resolved through negotiation/arbitration and stated that the dispute had not gone to court.  

103 

 
 
 
 
 
 
On single-branding / non-compete obligations (Articles 5(1)(a) and 5(2) VBER, paragraphs 66-
67 and 129-150 VGL  and paragraphs 26 and 28-41 SGL), 33  respondents indicated that they 
had  encountered  this  type  of  restrictions  in  their  agreements.  9  of  these  respondents  reported 
having  contested  the  restriction  and  7  of  them  said  the  dispute  had  been  resolved  through 
negotiation/arbitration. None of the respondents declared that the dispute had gone to court.  

On  post-term  non-compete  obligations  (Articles  5(1)(b)  and  5(3)  VBER  and  paragraph  68 
VGL), only 1 respondent declared to have encountered this restriction in  its agreements. This 
respondent  said  the  dispute  had  been  resolved  through  negotiation/arbitration  and,  therefore, 
had not ended up in court.  

On the restriction on authorised dealers not to sell motor vehicles or spare parts from particular 
competing  suppliers  (Article  5(1)(c)  VBER,  paragraphs  69  and  182  VGL  and  paragraph  27 
SGL),  6  respondents  indicated  that  they  had  encountered  this  type  of  restriction  in  their 
agreements. 5 of them indicated that it had contested the restriction and 2 said the dispute had 
been resolved through negotiation/arbitration. None of the respondents declared that the dispute 
had gone to court. 

On the restriction of independent operators’ access to technical information (paragraphs 62-68 
SGL), 46 respondents replied that they had encountered this restriction in their agreements. 29 
of them said they had contested the restriction and 7 said that (sometimes) the dispute had been 
solved through negotiation/arbitration. 3 respondents said that the dispute had gone to court but 
that the court had not found that restriction breached EU competition law. 

On  misuse  of  warranties  (paragraphs  49  and  69  SGL),  41  respondents  replied  that  they  had 
encountered  this  type  of  restriction  and  32  out  of  them  declared  they  had  contested  it.  23 
respondents  said  that  (sometimes)  the  dispute  had  been  solved  through  negotiation/arbitration 
and  8  said  that  the  dispute  had  gone  to  court.  According  to  5  respondents,  in  their  cases  the 
court found that the restriction was in breach of EU competition law.  

On the restriction on the number of authorised repairers within a brand network (paragraph 70 
SGL),  32  respondents  indicated  that  they  had  encountered  this  type  of  restriction  in  their 
agreements.  25  of  them  declared  to  have  contested  the  restriction  and  6  said  the  dispute  had 
been resolved through negotiation/arbitration. In 5 cases, respondents indicated that the dispute 
had gone to court and in 1 of these, the respondent said the court had found the restriction was 
in breach of EU competition law.  

On  the  requirement  that  authorised  repairers  within  a  brand  network  also  sell  vehicles  of  the 
brand  (paragraph  71  SGL),  7  respondents  indicated  that  they  had  encountered  this  type  of 
restrictions in their agreements and that all of them had contested it. 1 of these respondents said 

104 

 
 
 
 
 
 
 
 
that the dispute had been resolved through negotiation/arbitration and 5 said that the dispute had 
ended up in court. Only 1 respondent said that the court had found the restriction to be in breach 
of EU competition laws.  

The third question of this set asked respondents whether they had encountered any conduct on 
the  part  of  a  contractual  partner  that,  in  their  view,  served  as  an  indirect  means  of 
achieving  anti-competitive  results.  A  majority  of  respondents  (52)  replied  “yes”.38  Some  of 
the specific practices identified by the latter were: 

  Restrictions  to  access  technical  information  and  in-vehicle  data.  One  of  the  examples 
given  by  respondents  was  the  provision  of  outdated  or  incomplete  information  which, 
according to these respondents, can result in an inability to perform repairs/maintenance, 
inaccurate/inefficient repairs, loss of trust in the independent data publishers that provide 
access  to  that  information  and,  allegedly,  even  safety  risks  for  drivers.  Another  issue 
raised  was  the  slow  processing  of  requests  or  the  application  of  excessive  fees  for 
accessing  technical  information  which,  the  respondents  reported,  can  drive  independent 
data publishers out of the business or prevent them from developing competitive products.  
  Refusal  to  access  the  official  network  of  repairers  which,  in  the  view  of  some 

respondents, results in a decrease in intra-brand competition. 

  Bundling of captive and non-captive parts in sales to independent repairers. 
  Anticompetitive  application  of  bonus/rebates  schemes  and  pricing/commercial  terms, 
leading to the exclusion of competitors in the aftermarket. For example, discounts being 
refused if leasing companies offer vehicles for private lease may allegedly result in input 
foreclosure and limit competition on the private lease market. Decreasing basic discounts 
or increasing promotional campaigns has been alleged by these respondents to amount to 
indirect resale price maintenance. 

  Obligations  to  register  and  use  vehicles  in  the  country  of  purchase  can  result  in 
restrictions of the territory into which, or of the  customers to  whom, leasing companies 
may lease the contract goods. 

  The misuse of warranties to (i) funnel consumers to authorised repairers, thereby de facto 

excluding independent repairers, or (ii) restrict parallel imports. 

  Automatic  cession/license  of  IP  rights  may  make  it  impossible  for  OES  to  sell  to  the 

aftermarket. 

  Direct  sales  by  VMs  (including  online  sales)  puts  authorised  dealers  at  a  competitive 
disadvantage, as they are not able to offer competitive prices to consumers. In addition, 
the fee paid to dealers for delivering and preparing a car that has been purchased directly 

38   Primarily  associations  representing  parts  dealers  and  vehicle  dealers/importers,  but  also  parts  dealers,  vehicle  dealers  and 
vehicle leasing rentals. Some respondents (14) replied that they had not encountered any such conduct, some declared not to 
know (12) and a few did not provide an answer (5). 

105 

 
 
 
                                                           
from the VM is too small to make the dealers’ business profitable. 

  Termination of dealer contracts without giving reasons, even if the operator respects the 

  The  use  of  applications 

criteria of the selective network. This results in less choice for consumers. 
to  direct  consumers 

to  authorised 
in  cars 
dealers/authorised  repairers  rather  than  independent  repairers  in  case  of  breakdown  or 
necessary maintenance. 

installed 

  Making  OES  obtain  VMs’  consent  before  using  tooling  paid  by  VM  to  make  parts  for 
direct aftermarket supply, such consent being usually subject to a payment on the part of 
the IAM for each part produced. 

  Cartels between OES. 
  Refusals on the part of VMs to supply spare parts to independent wholesalers. 
  VMs failing to grant end-user status to leasing companies. 

Finally, the last question of this set asked whether there is there a code of conduct / practice 
that applies to contractual relations between the respondents and their contractual partners in the 
motor vehicle sector. Most respondents said that there was no such code of conduct / practice 
(35), while some declared the opposite (25).39 

Legal certainty: clarity for firms as to what the law means  

The  first  question  of  this  set  asked  respondents  whether,  based  on  their  experience,  the 
motor vehicle block exemption rules have achieved legal certainty. 

A majority of respondents (48) considered that the aim had been achieved,40 while some (15) 
believed the opposite.41 The latter supported their views by referring, among other things, to: (i) 
self-assessment being difficult and costly for SMEs; (ii) distributors’ increased dependence on 
manufacturers as a result of the removal of the sector-specific block exemption from contracts 
for  the  sale  of  new  vehicles;  (iii)  the  drop  in  basic  margins  and  the  increase  in  promotional 
campaigns by OEMs reducing distributors’ to set their own prices; (iv) the low risk that those 
who commit anti-competitive practices will be sanctioned; (v) national courts not following the 
provisions  of  the  MVBER  and  SGL;  and,  (vi)  the  removal  of  certain  definitions/clauses  that 
were present in the previous MVBER. 

39   A few declared not to know (12), that they had no contractual relations with other companies in the motor sector (6) or did 

not provide an answer (5). 

40   Primarily  associations  representing  parts  dealers,  parts  manufacturers  and  vehicle  dealers,  but  also  parts  dealers,  parts 

manufacturers and VMs replied in this sense. 17 respondents declared not to know and 3 did not provide an answer. 

41   Primarily associations representing vehicle dealers, but also individual undertakings (mostly vehicle dealers, parts dealers 

and repairers). 

106 

 
 
 
 
 
 
                                                           
The second question of this set asked whether the definitions contained in the motor vehicle 
block exemption rules have increased legal certainty compared to a hypothetical situation in 
which no such rules existed. 

107 

 
 
Figure 8 – Legal certainty achieved by definitions 

108 

 
 
 
 
As  regards  the  definition  of  “vertical  agreements”  (Article  1(1)(a)  VBER,  paragraphs 
24-26 VGL and Article 1(1)(a) MVBER), some of the respondents considering that the 
definitions had done “little” to increase legal certainty pointed out that (i) references to 
online  and  direct  sales  are  missing;  and  that  (ii)  clarification  was  needed  as  to  the 
circumstances  under  which  agreements  between  dealers  and  online  platforms  may 
constitute “vertical agreements” for the purpose of the VBER.  

As for the definition of “agreements of minor importance” (paragraphs 8-11 VGL), the 
few respondents which selected the option “little” or “very little” explained their view 
that  (i)  the  market  share  threshold  should  not  be  15%  but  rather  5%;  and,  that  (ii)  it 
could  be  useful  to  add  some  practical  examples  of  cases  where  although  de  minimis 
threshold is not reached, the presence of a hardcore restriction nonetheless leads to the 
application of Article 101 of the Treaty. 

On  the  definition  of  “agency  agreements”  (paragraphs  12-17  VGL),  some  of  the 
respondents considering that this definition had done little or very little to increase legal 
certainty  indicated  that  (i)  the  current  rules  seem  too  restrictive  in  that  they  prevent 
agents  from  undertaking  "other  activities  within  the  same  product  market  required  by 
the  principal,  unless  these  activities  are  fully  reimbursed  by  the  principal";  (ii)  as  the 
difference between genuine agents and non-genuine agents is allegedly not sufficiently 
clear,  it  would  be  good  to  include  some  examples  in  the  VGL;  (iii)  the  term 
“commercial  agent“  should  be  defined,  particularly  in  light  of  the  increase  in  agency 
sales as well as sales over online platforms; and, (iv) the circumstances under which car 
dealers  can  be  considered  as  agents  rather  than  authorised  distributors  should  be 
clarified. 

Concerning  the  definition  of  “subcontracting  agreements”  (paragraph  22  VGL  and 
paragraph 23 SGL), some of the respondents  considering that this definition had done 
“little”  or  “very  little”  to  increase  legal  certainty  stated  that  the  SGL  are  helpful  on 
subcontracting restrictions but should nonetheless be updated to improve legal certainty. 

With regard to the definition of “franchise agreements” (paragraph 189 VGL), some of 
the  respondents  considering  that  this  definition  had  done  “little”  or  “very  little”  to 
increase legal  certainty  referred to  lack of clarity as to  the possibility to  use franchise 
agreements in the motor vehicle sector.   

On  the  definition  of  “non-compete  obligation”  (Article  1(1)(d)  VBER),  some  of  the 
respondents considering that this definition had done “little” or “very little” to increase 
legal  certainty  mentioned  that  the  previous  MVBER  did  not  apply  to  provisions 
obliging dealers to buy more than 30 % of their total purchases on the relevant market 
from one single supplier (such obligations were subject to individual self-assessment as 
to their compatibility with Article 101 of the Treaty). This provision no longer exists in 

109 

 
 
 
 
 
 
 
the current MVBER, with claimed adverse effects. 

On  “selective  distribution”  (Article  1(1)(e)  VBER  and  Article  1(1)(i)  MVBER),  some 
of  the  respondents  considering  that  this  definition  had  done  “little”  or  “very  little”  to 
increase  legal  certainty  pointed  out  that  this  definition  did  not  distinguish  between 
qualitative and quantitative selective distribution.  

As  for  the  definition  of  “exclusive  distribution”  (paragraph  151  VGL),  some  of  the 
respondents considering that this definition had done “little” or “very little” to increase 
legal  certainty  claimed  that  onerous  requirements  relating  to  corporate  identity  were 
reducing business opportunities available to dealers.  

On  the  scope  of  the  term  “independent  operator“  (paragraph  62  SGL  –  the  list  of 
operators  from  whom  “technical  information”  within  the  meaning  of  paragraph  65 
should not be withheld), some of the respondents considering that this had done “little” 
or  “very  little”  to  increase  legal  certainty  argued  that  the  list  should  be  expanded  to 
include insurance companies.  

As  for  the  definition  of  “intermediary”  (paragraph  52  SGL),  some  of  the  respondents 
considering  that  this  definition  had  done  “little”  or  “very  little”  to  increase  legal 
certainty  argued  that  this  definition  was  too  strict  for  the  opening  given  to  such 
operators to be used in practice. 

On the definition of “motor vehicle” (Article 1(1)(g) MVBER), some of the respondents 
considering  that  this  definition  had  done  “little”  or  “very  little”  to  increase  legal 
certainty  referred  to  the  fact  that  it  needed  to  be  updated  to  reflect  technical 
developments (connectivity/digitalization), while others argued that a definition of “new 
vehicle” was needed.  

With  regard  to  the  definition  of  “spare  part”  (Article  1(1)h)  MVBER),  some  of  the 
respondents considering that this definition had done “little” or “very little” to increase 
legal  certainty  argued  that  this  definition  should  updated  to  reflect  technical 
developments  and  that  the  word  “component”  should  not  be  used,  as  this  term  is  not 
normally  used  to  describe  certain  goods  included  in  the  definition,  such  as  lubricants. 
The suggestion would be to replace this word by “parts” and to define “parts” as “goods 
used  for  the  assembly,  repair  and  maintenance  of  a  vehicle,  as  well  as  spare  parts”. 
According  to  these  operators,  a  distinction  between  “repair  parts”  and  “consumable 
parts” should also be considered.  

On  the  definition  of  “original  part”  (paragraph  19  SGL),  some  of  the  respondents 
considering  that  this  definition  had  done  “little”  or  “very  little”  to  increase  legal 
certainty  argued  that  the  choice  available  to  consumers  and  repairers  would  be  fairer 
and prices would be more reasonable if the term “original parts” was also used for parts 
that  did  not  bear  the  car  manufacturer’s  brand,  but  were  nonetheless  produced  by  the 

110 

 
  
 
  
 
 
 
 
OES  on  the  same  production  line  as  the  parts  used  in  the  original  equipment.  This,  it 
was argued by some, would improve the choice of consumers and repairers and reduce 
prices.  

Regarding  the  definition  of  technical  information  (paragraph  66  SGL),  some  of  the 
respondents considering that this definition had done “little” or “very little” to increase 
legal  certainty  pointed  out  that  this  definition  could  usefully  be  adapted  to  technical 
progress  (so-called  “digitalization”).  These  respondents  argued  that  some  terms  in 
paragraph 67 SGL require more precise definitions such as (i) the description of the way 
in  which  technical  information  is  being  supplied  (in  particular  what  should  be 
considered  information  “in  a  usable  form”);  (ii)  the  term  “without  undue  delay”;  and, 
(iii)  under  what  conditions  the  price  charged  for  access  to  technical  information  does 
“not  discourage  access  to  it”.  The  definitions  should  take  account  of  the  specific 
situation of data publishers, whose needs differ from those of repairers. The definition 
should  be  amended  and  aligned  with  the  definition  included  in  the  Type  Approval 
Regulation 2018/858 (“TAR”). 

As for the definition of “tool” (paragraph 68 SGL), some of the respondents considering 
that  this  definition  had  done  “little”  or  “very  little”  to  increase  legal  certainty  pointed 
out  that  this  definition  should  also  be  updated  as  technical  developments  occur.  The 
term "tools" is not defined clearly enough in paragraph 68 SGL. It should also include 
software codes for spare part learning.  

With regard to “connected undertaking” (Article 1(2) VBER and Article 1(2) MVBER), 
some of the respondents considering that this definition had done “little” or “very little” 
to increase legal certainty indicated that this reference is arguably inconsistent with the 
definition of undertaking as an economic unit.   

On  the  rest  of  definitions,  the  respondents  which  selected  the  option  “little”  or  “very 
little” did not provide any specific explanations for their views.  

The third question of this set asked respondents to evaluate whether the provisions of 
the motor vehicle block exemption rules have increased legal certainty compared to 
a situation in which no such rules existed267. 

267   The  paragraphs  below  contain  the  main  comments  raised  by  respondents.  Comments  have  been  classified 
manually by the Commission according to topic. Comments which were not clear have not been reflected in this 
section.  

111 

 
 
 
 
 
 
 
 
 
 
                                                           
General provisions  

Figure 9 – Legal certainty achieved by general provisions 

On market share thresholds for exemption (Articles 3 and 7 VBER and paragraphs 93-
95 VGL), some of the respondents considering that this definition had done “little” or 
“very  little”  to  increase  legal  certainty  flagged  that  legal  certainty  is  prevented  by  the 
fact  that  the  high  market  share  thresholds  have  little  or  no  application  in  the  motor 
vehicle market due to its fragmented structure. On severability (paragraphs 70-71 VGL) 
and the withdrawal/disapplication of the block exemption (Article 6 VBER, paragraphs 
74-85  VGL,  Article  6  MVBER  and  paragraphs  35-37  SGL),  those  respondents 
considering  that  this  definition  had  done  “little”  or  “very  little”  to  increase  legal 
certainty did not provided specific explanations for their position.   

Hardcore restrictions 

Figure 10 – Legal certainty achieved by hardcore restrictions 

On  resale  price  maintenance  (Article  4(a)  VBER  and  paragraphs  48-49  and  223-229 

112 

 
 
 
 
 
 
 
VGL), respondents which selected the option “little” or “very little” argued that resale 
price  maintenance  was  justifiable  in  cases  where  new  products  or  innovative  services 
are  launched.  As  the  same  should  be  true  in  other  sectors,  this  matter  would  be  best 
addressed in the review of the VBER. An association of dealers reported that maximum 
prices can turn into fixed prices in practice. 

With  regard  to  territorial/customer  restrictions  (Article  4(b)(i)  VBER  and  paragraphs 
50-54 VGL), some of the respondents which selected the option “little” or “very little” 
argued  that  the  possibility  for  the  supplier  to  restrict  the  sales  of  distributors  to  a 
clientele that the supplier has exclusively reserved for itself should be exempted only on 
condition that the sales made by the supplier to these customers do not represent more 
than  20%  of  the  overall  volume  of  its  sales.  In  addition,  they  referred  to  the  fact  that 
manufacturers/suppliers  may  wish  to  sell  directly  to  consumers  online  and  may 
therefore  curb  authorised  resellers’  online  sales  by  imposing  disproportionate  quality 
standards and platform bans. Further guidance on this point would be helpful. 

On  territorial/customer  restrictions  (Article  4(b)(iii)  VBER  and  paragraphs  50  and  55 
VGL),  a  respondent  which  selected  the  option  “little”  or  “very  little”  mentioned  that 
there  was  a  lack  of  clarity  in  respect  of  obligations  with  a  territorial  dimension  in 
selective  distribution  and  as  to  the  availability  of  franchising  agreements.  This 
respondent  argued  that  clarity  was  necessary  as  to  whether  specific  territorial 
obligations may be imposed. 

As for the restriction of original equipment suppliers’ ability to sell spare parts to end 
users or repairers (Article 4(e) VBER and paragraph 59 VGL), some respondents which 
selected the option “little” or “very little” mentioned that technical barriers (e.g., coding 
of  spare  parts  and  the  requirement  for  software  activation  of  replacement  parts  with 
OEMs’  proprietary  codes)  currently  limit  Tier1  suppliers’  ability  to  sell  spare  parts  to 
end users/repairers/distributors. This effectively blocks the implementation of Article 4€ 
VBER/  paragraph  59  VGL.  They  also  added  that  spare  parts  manufacturers  often 
reserve  their  production  for  VMs  and  their  authorised  dealers,  thereby  resulting  in  a 
shortage  for  the  aftermarket  (e.g.,  in  glass  for  vehicles)  and  limiting  choice  and 
potentially increasing costs for consumers.  

On all the other hardcore restrictions, respondents which selected the option “little” or 
“very little” did not provide specific explanations for their position. 

113 

 
 
 
 
 
 
 
 
 
 
Specific vertical restraints 

Figure 11 – Legal certainty achieved by specific vertical restraints 

On the restriction of independent operators’ access to technical information (paragraphs 
62-68 SGL), many respondents provided their views: 

  A  data  publisher  advocated  for  a  better  definition  of  the  format  of  technical 
information to be provided to independent operators (e.g., data publishers) who need 
to  aggregate  and  process  it.  Paragraph  67  SGL  only  states  that  this  information 
should be provided in a “usable form”, without further details. It was argued that the 
term “usable form” should take into account the role of the respective independent 
operator  in  the  supply  chain  and,  therefore,  should  explicitly  mean  provision  to 
publishers  and  others  of  mass/bulk  data  in  the  form  of  unrestricted  electronically 
actionable datasets. In addition, MVBER rules should also clarify that any fees for 
technical information should be solely based on the actual costs stemming from the 
technical / organisational provision of access.  

  A motorists’ association referred to the tendency of VMs to classify parts as being 
“security parts” to make independent repairers’ access to technical information more 
difficult.  This  concern  was  also  echoed  by  data  publishers,  which  stated  that  it 
should  be  clarified  that  technical  information  encompasses  all  information, 
including  software  and  algorithms  needed  to  perform  any  diagnostic  job  without 
impediments. 

  The  same  motorists’  association  stated  that  independent  operators  have  no  control 

114 

 
 
 
 
 
 
 
over the costs charged by OEMs for accessing the in-vehicle data needed to provide 
repair/maintenance. It argued that disproportionate prices had a deterrent effect and 
limited fair competition between authorised and independent repairers. Moreover, a 
lot  of  cars  are  provided  with  a  digital  service  booklet.  Although  the  IAM  is 
generally granted access to the VM tools for updating the booklet, technological and 
bureaucratic barriers are high in that each VM has different requirements for access, 
uses different software and has different handling processes.  

  A  repairers’  association  expressed  that  the  lack  of  consistency  of  platform  and 
platform structure as well costing models made accessing VM technical information 
time and cost prohibitive and detrimental to consumer choice. 

  An  EU  citizen  suggested  that  there  should  be  guidelines  in  which  it  is  more 
precisely  defined  what  further  training  and  diagnostic  tools  must  be  accessible  for 
independent  repairers.  Independent  repairers  should  have  access  to  the  in-vehicle 
generated service data and thus should be able to carry out remote maintenance. In-
vehicle  generated  data  should  be  stored  centrally, 
the 
manufacturer. 

independently  of 

  An association representing dealers, intermediaries, agents, leasing/rental, repairers, 
parts’  dealers  asked  for  more  clarity  with  regard  to  access  to  in-vehicle  data.  It 
argued  that  access  to  all  information  related  to  parts,  reset  error  codes,  update 
software,  electronic  central  units  (“ECUs”),  equivalences  between  OEM  and  IAM 
parts, VIN, etc. should be guaranteed.  

  Some  parts  dealers,  repairers  and  their  associations  said  that  the  definition  of 
“technical  information”  should  be  updated  more  explicitly  following  the  increased 
interconnectivity  of  components  inside  the  vehicle  and  digitization.  Regarding 
activation  codes  and  software  needed  to  activate  spare  parts,  these  respondents 
mentioned  that  VMs  are  installing  increasingly  proprietary  security  measures  (for 
example, coding (QR) or software) needed to activate spare parts and systems (e.g., 
for  setting  up  an  engine  after  changing  nozzles).  To  enable  the  consumer  to  have 
safe  and  secure  and  competitive  aftermarket  spare  parts,  these  codes  must  be 
provided  /  licensed  to  Tier1  and  aftermarket  suppliers  to  ensure  safe  and  secure 
interoperability and to enable direct use of multi-brand tools. 

  A Chamber of Commerce suggested that the SGL should refer to the definitions and 
detailed  provisions  of  the  TAR  that  govern  access  to  repair  and  maintenance 
information.  There  should  be  only  one  definition  of  "repair  and  maintenance 
information" in EU law. 

On  the  misuse  of  warranties  (paragraph  69  SGL),  respondents  identified  as  an 
importer/dealer/repairer and an academic institution mentioned that consumers are still 
dissatisfied  with  the  fact  that  repair  and  maintenance  work  that  is  not  covered  by  the 

115 

 
 
 
 
 
 
 
warranty can, in practice, only be carried out by authorised repairers. These respondents 
also alleged that garage owners were also still obliged to use original spare parts from 
the manufacturer. In addition, they submitted that warranties on new and second hand 
cars  are used to  pressurise consumers to  have  repair and maintenance services carried 
out by authorised repairers. Associations representing importers, dealers, intermediaries, 
leasing/rental  and  repairers  have  argued  that  the  market  requires  clarification  as  to 
whether authorised repairers my legitimately refuse to honour the warranty on vehicles 
purchased from independent resellers, as current warranty practices deter parallel trade 
in  new  motor  vehicles.  A  repairer  also  suggested  that  there  should  be  more  legal 
certainty with regards to warranties on second-hand vehicles.  

On  placing  limits  on  the  numbers  of  authorised  repairers  within  a  brand  network 
(paragraph  70  SGL),  VMs  have  flagged  that  courts  in  different  countries  are  giving 
diverging  assessments  of  the  extent  to  which  VMs  can  adopt  measures  that  indirectly 
limit  the  number  of  authorised  repairers,  thereby  undermining  legal  certainty. 
Considering the growing technical complexity of vehicles and the increasing investment 
cost for repairers, VMs see a significant risk of underinvestment if they are not allowed 
to  place  quantitative  limits  on  the  number  of  authorised  repairers.  This  would 
undermine  service  quality  as  well  as  the  reputation  of  the  brand,  since  consumers 
associate  authorised  repairers  with  the  brand  they  represent.  In  contrast,  associations 
representing dealers, parts’ dealers and repairers have argued that the refusal by supplier 
to  re-approve  a  repairer  meeting  the  qualitative  selective  criteria  should  constitute  a 
hardcore  restriction,  without  it  being  necessary  to  demonstrate  that  such  a  refusal  of 
approval falls within the framework of a "general policy" of the supplier. 

With  regard  to  requiring  authorised  repairers  within  a  brand  network  to  also  sell 
vehicles of the brand (paragraph 71 SGL), some respondents identifying themselves as 
importers,  dealers,  parts  dealers  and  repairers  as  well  as  an  academic  institution  have 
claimed that VMs put limits on the number of authorised repairers and refuse access to 
companies that do not also wish to sell new cars.  

As  for  exclusive  supply  obligations  (paragraphs  192-202  VGL),  some  parts 
manufacturers, parts dealers and their associations have raised the example of a major 
oil company, partner of an OEM, which only supplies the authorised network with the 
lubricant “recommended” by the OEM for a certain period of time. These respondents 
indicate that as a consequence, often during this period, no other product matching the 
OEM’s technical specifications is available on the market. 

On  indirect  restrictions  of  cross-border  trade  (paragraphs  49-50  SGL),  some 
associations  representing  importers,  dealers,  intermediaries,  leasing  and  rental,  and 
repairers have stated that  VMs continue to market  new cars without always  supplying 
the Certificate of Conformity (“CoC”) in paper format. As a result, consumers, agents 
and  both  authorised  as  well  as  independent  retailers  struggle  with  cross-border 
transactions due to the missing CoC, since the car in question may not be registered in 

116 

 
 
 
 
 
the target country without it. 

On the rest of specific vertical restraints, respondents which selected the option “little” 
or “very little” did not provide specific explanations on their position.  

The fourth question of this set asked respondents to point out any other areas where, in 
their view, there is a lack of legal certainty.268  

A competition lawyers’ association submitted that there is significant lack of clarity as 
to  when  spare  parts  and  services  would  merit  defining  as  a  separate  relevant  market. 
According  to  this  association,  market  evolution  suggests  that  a  greater  proportion  of 
customers consider the aftermarket in their initial choice. In the view of this association, 
it would be appropriate to maintain a block exemption regulation and guidelines, while 
avoiding the adoption of frequently asked questions (“FAQ”) or similar. Associations of 
dealers/importers argued that dealers should have the freedom to sell their dealership to 
any other dealer (of the same brand), and that this should be mentioned in the MVBER 
rules, and that the exemption should be once more removed from contracts that do not 
contain specific provisions on “dealer protection”.  

The  last  question  of  this  set  concerned  paragraph  66  SGL,  which  includes  a  non-
exclusive list of items commonly provided to authorised repairers and that should 
be  considered  as  technical  information  that  should  not  be  withheld  from 
independent  operators.  Respondents  were  asked  to  identify  any  other  items 
provided  to  authorised  repairers  that,  in  their  view,  should  have  been  considered  as 
technical information for the purposes of the motor vehicle block exemption rules.  

Some of the main items referred to by respondents were: (i) digital service/maintenance 
records and over-the-air technology and services; (ii) information embedded in OEMs’ 
proprietary  tools;  (iii)  the  standardized  billing  times  for  service;  (iv)  with  respect  to 
connected and automated vehicles: the diagnostics, software update and security-related 
functions;  (v)  technical  specifications  for  lubricants  and  other  fluids  used  for  vehicle 
maintenance; (vi) human machine interface (HMI) functions and resources; (vii) OBD; 
(viii)  mileage  (odometer)  reading,  days  and  miles  to  next  maintenance  service, 
longitude  &  latitude,  g-forces,  emission  data;  (ix)  information  to  code  and  calibrate 
advanced driver assistance systems; (x) in-vehicle consumer "personal" data, provided 
that the consumer/individual has agreed to share it; (xi) apps on-board the vehicle (e.g., 
to  inform  the  customer  about  upcoming  repair  and  maintenance  requirements);  (xii) 
prices  for  VM-branded  parts;  (xiii)  cybersecurity  information;  (xiv)  information  about 
EVs  (e.g.,  electrical  motors,  battery  pack,  battery  status,  cable,  electrical  components 
which work on 15V or higher); and, (xv) training provided directly by VMs (e.g., face-
to-face or online training).  

268   Points included as reply to this question that were already mentioned in the replies to the previous set of questions 

have not been included here to avoid repetition.    

117 

 
 
 
 
 
 
                                                           
In  addition  to  the specific items  above, some respondents  also  included  a few  general 
comments.  Several  referred  to  the  format  and  timescale  for  the  release  of  technical 
information.  In  particular,  they  argued  that  VMs  should  release  accurate  and  updated 
technical  information  to  independent  operators  within  a  defined  period  of  time  after 
making  it  available  to  their  own  network.  In  their  view,  full,  open  and  clear  release 
notes  should  be  available  in  a  common  format  so  independent  repairers  can  quickly 
establish  which  is  the  latest  version  of  a  given  item  of  technical  information.  A  few 
respondents argued that it would make sense to  refer in the SGL to the definition and 
detailed provisions of the TAR governing access to repair and maintenance information. 
Some  others  underlined  that  the  reference  to  the  fact  that  “the  notion  of  technical 
information is fluid” included in the SGL is very important, but is not equally echoed in 
the TAR.   

2.3.2.  Efficiency (Were the costs involved proportionate to the benefits?)269 

The first question of this set asked respondents to identify the types of costs incurred 
when  assessing  whether  vertical  agreements  can  benefit  from  the  motor  vehicle 
block exemption rules (namely the VBER, the MVBER, the VGL and the SGL). 

Most  respondents  referred  to  costs  for  external  counsel  and  internal  administrative 
costs,  followed  by  costs  for  internal  lawyers.  A  minority  mentioned  that  they  had  not 
incurred any costs or that they had incurred other types of costs. A few did not provide 
an answer to this question.  

The  second  question  of  this  set  asked  respondents  to  provide  an  estimate  of  the 
amount of such costs on an annual basis both in terms of value (in EUR) and as a 
percentage of the respondents’ turnover. 

Among  the  respondents  that  actually  provided  an  estimate  (9),270  costs  seem  to  range 
from EUR 10,000 to EUR 140,000. On the lower range of costs, there is an insurance 
company (EUR 10,000 to 15,000); a parts’ manufacturer/dealer (EUR 20,000); a parts 
manufacturers’  association  (EUR  20,000  to  40,000,  corresponding  to  1%  of  the 
association’s budget271); a  company which  reported itself to  be a dealer, parts’ dealer, 
and  repairer  (EUR  20,000);  and  a  small  company  which  identified  itself  as  a  dealer, 
parts dealer and repairer (around EUR 40,000272). At the higher range of reported costs 
was an association representing dealers, importers  and  repairers (EUR 100,000273); an 

269   Respondents which did not provide any reply to any of the questions of the “Efficiency” section are not taken into 

account in the graph below.  

270   A majority of respondents (45) did not reply to this question. Some declared not to know, being unable to make 
such an estimate or replied with “N/A”, and some provided a reply that did not address the actual question. 

271   This association attributed the above costs to external support for the evaluation of the VBER and MVBER.  
272   This respondent indicated that their insurance had covered around EUR 30,000 of these costs. 
273   The association specified that this amount corresponded to a dealer’s cost for cartel proceedings. 

118 

 
 
 
 
 
 
 
                                                           
association representing parts dealers and repairers (over EUR 100,000); and a large car 
parts  dealer  (EUR  140,000,  corresponding  to  0.1%  of  its  turnover).  Finally,  two 
respondents only provided the requested data as  a percentage of their sales and profit: 
both  an  association  representing  dealers,  importers  and  repairers,  and  an  academic 
institution  declared  that  these  costs  represented  1-5%  of  sales  or  1-20%  of  profit.  No 
VM provided figures on the costs incurred to assess the VBER/MVBER. 

The  third  question  of  this  set  asked  respondents  to  indicate  whether  they  consider 
costs  to  have  been  proportionate  to  the  benefits  that  the  motor  vehicle  block 
exemption rules have brought. 

Figure 12 – Proportionality of costs 

Only a few of the respondents that considered the costs to be disproportionate provided 
any  explanations  as  to  the reasons  for their position. One of these respondents  argued 
that applying the MVBER and the SGL directly and proving the effects of practices on 
the market and consumers was so difficult that the costs were not proportionate to the 
benefits. This respondent also argued, however, that if the MVBER were not prolonged, 
legal uncertainty would increase. Another respondent mentioned that the legal costs of a 
dispute  do  not  outweigh  the  potential  benefits  of  challenging  behaviour  since  the 
probability of success is low. Another reported that they had lost court cases, so in their 
case the costs did not compensate the benefits. Finally, a respondent mentioned that, in 
their  experience,  the  legal  costs  of  challenging  particular  behaviour  had  been 
disproportionate for individual dealers and legal proceedings had been long.  

The  last  question  of  this  set  asked  respondents  to  provide  an  estimate  of  the  level  of 
assessment  costs  they  would  have  incurred  if  the  assessment  had  had  to  rely 
directly on Article 101 of the Treaty (i.e., no motor vehicle block exemption rules). 

The large majority (55) of respondents considered that without the motor vehicle block 
exemption rules, assessment costs would have been higher. Only 2 respondents said that 
costs  would  have  been  the  same,  and  1  respondent  said  that  costs  would  have  been 

119 

 
 
 
 
 
 
 
lower without the MVBER regime.274 None of the respondents that estimated that costs 
would  have  been  the  same  or  lower  without  the  MVBER  regime  gave  any  reasons 
behind their view.  

2.3.3.  Relevance  (Do  the  objectives  of  the  rules  still  correspond  to  the  current 

needs?) 275 

The first question of this set asked respondents to identify any changes affecting their 
business since 2010 that, in their view, should be reflected in the objectives of the 
block exemption rules covering the motor vehicle sector (namely of the VBER, the 
MVBER, the VGL and the SGL). 

The  changes  most  frequently  identified  by  respondents  mainly  concern  technology 
developments  and  business  model  developments.  As  for  technology,  respondents 
referred to connected cars, digitalization, (access to) in-vehicle and users’ data, electric 
vehicles,  new  types  of  engines  (e.g.,  electric  or  hydrogen  engines),  development  of 
ADAS,  the  rising  number  of  sensors,  the  rising  use  of  electronics  and  software  (e.g., 
software  as  a  spare  part),  cybersecurity,  remote  connectivity/over-the-air  technology 
(including remote diagnosis and remote repair),  and independent  operators’ increasing 
need  for  training.  As  for  business  model  developments,  respondents  mentioned 
increasing  direct  sales  by  VMs,  more  renting/leasing,  increasing  use  of  car  sharing, 
bundling of warranties with maintenance/servicing contracts or issues with second-hand 
vehicle  warranties,  issues  with  the  parallel  trade  of  vehicles,  growing  concentration 
among  VMs,  an  expected  decrease  in  spare  parts  market  size  as  a  result  of 
electrification  of  vehicles  (which  may  require  less  maintenance),  and  the  fact  that 
market shares of manufacturers and dealers are below 30%. 

In addition to the above, some respondents mentioned the need for: (i) the imposition of 
higher  demands  on  the  timeliness  for  the  provision  of  technical  information;  (ii)  the 
adoption of additional protection around the end-user status of leasing and rental firms; 
(iii)  the  explicit  mention  of  insurance  companies  as  independent  operators.  Some 
respondents mentioned current problems such that when spare parts (e.g., car glass) are 
in short supply, manufacturers privilege their own network over independent operators; 
or  that  manufacturers  /  importers  require  resellers  to  disclose  business-critical  data 
about their customers, profitability, pricing, etc., while, at the same time, they compete 
with those resellers at the same level of distribution. Finally, some dealers pointed to the 
fact  that  the  application  of  the  exemption  to  dealership  agreements  was  no  longer 
conditional on the inclusion of contractual stipulations. These dealers  claimed that the 
change meant that they were no longer free to transfer their distribution contract to other 

274   9 respondents declared not to know, 6 declared that the question was not applicable to them and 1 did not provide 

an answer. 

275   Respondents which did not provide any reply to any of the questions of the “Relevance” section are not taken into 

account in the graph below.  

120 

 
 
 
 
 
                                                           
authorised dealers, that they had reduced protection if their contracts were terminated, 
and that there were barriers to multi-brand distribution. 

The second question of this set asked respondents whether the objectives of the motor 
vehicle block exemption rules are still relevant today.  

Figure 13 – Relevance of objectives 
On ensuring access to vehicle retail and repair markets for VMs wishing  to enter new 
markets  or  expand  their  market  presence,  respondents  which  selected  the  option  “no 
longer relevant” explained that VMs have full opportunities to enter new markets. They 
have  and  are  expanding  quite  aggressively  into  servicing  and  repair  markets  through, 
among  others,  bundling  the  sale  of  new  vehicles  with  extended  warranties/servicing 
contracts  or  pooling  the  full  range  of  OEM-branded  spare  parts  on  online  platforms. 
One respondent also pointed out that, in some Member States, authorised repairers have 
very high market shares (over 50% in the quantity of services provided, and over 60% 
in terms of value). In the view of this respondent, VMs may enter any market easily by 
building  their  own  network  of  authorised  repairers  or  by  concluding  agreements  with 
existing IAM garage networks.  

As  to  the  rest  of  the  objectives,  the  respondents  which  selected  the  option  “no  longer 
relevant” did not provide any explanation for their replies. 

The  third  question  of  this  set  asked  respondents  to  (i)  describe  any  other  objectives 
that, in their view, the Commission should pursue in respect of vertical agreements 
in this sector, and (ii) to explain their relevance for competition on the markets in 
question.  

Some of the main points identified by respondents were: 
-  Ensuring the full reparability of vehicles and the remanufacturing and recycling of 

spare parts to respond to sustainability goals. 

121 

 
 
 
 
 
 
 
-  Discouraging  (new)  business  practices  which  weaken  competition,  such  as  the 

bundling of purchasing contracts, servicing contracts and warranties. 

-  Ensuring  a  level  playing  field  with  regard  to  access  to  in-vehicle  data,  including 
technical  information  and  data  linked  to  connected  vehicles,  for  all  stakeholders, 
(while taking into account consumers choice to share such data).  

-  Guaranteeing the cybersecurity of vehicles while enabling fair competition to protect 
the  interests  of  the  consumer.  Prevention  of  market  foreclosure  to  the  detriment  of 
independent  workshops  via  so-called  "Security  Gateways"  or  comparable 
mechanisms. 

-  Ensuring independent distributors’ access to OEM-branded parts. 
-  Protecting inter-brand competition of dealers and repairers. 
-  Ensuring  that  authorised  dealers  can  participate  in  direct  sales  (including  online 

sales) or limiting the volume of direct sales by OEMs (to e.g., 20 percent). 

-  Ensuring  that  agreements  between  OEMs  and  authorised  dealers  contain  clauses 

protecting the latter. 

-  Considering more frequent  updates of the motor  vehicle block  exemption rules  (10 

years may be too long). 

-  Considering the impact of "over the air diagnosis", which allows VMs and authorised 

dealers to contact customers directly and to offer innovative services. 

-  Ensuring  that  independent  repairers  have  access  to  advanced  training,  face-to-face 

training and online training from the manufacturer. 

The last question in  this set  asked respondents  to indicate  whether, in  their view,  the 
material  scope  of  the  sector-specific  regime  for  vertical  agreements  concerning 
motor vehicles, defined in the MVBER as self-propelled vehicles intended for use on 
public roads and having three or more road wheels was still appropriate. 

24  respondents  considered  that  the  current  scope  was  still  appropriate,276  whereas  47 
believed  that  the  current  definition  should  be  widened.277  The  group  of  respondents 
advocating  for  the  current  scope  to  be  widened  mainly  mentioned  the  following 
categories  of  vehicles  that  should  be  included  in  the  motor  vehicle  block  exemption 
rules: two wheel vehicles (mainly motorbikes, but some also mentioned electric bikes or 
electric scooters); vehicles not meant for roads (such as agricultural machinery, tractors 
and forestry vehicles, construction vehicles). Some respondents mentioned that it would 
be advisable to have specific mentions for electric vehicles.  

2.3.4.  Coherence (Are the rules consistent internally and with other EU rules?)  

The first set of questions in this section asked respondents to indicate whether, in their 

276   Primarily  associations  representing  vehicle  dealers  and  VMs,  but  also  companies  (mainly  parts  dealers,  parts 

manufacturers and repairers). 

277   Primarily  associations  representing  parts  dealers,  parts  manufacturers,  vehicle  dealers  or  vehicle  importers,  but  

also companies (mainly parts dealers, but also other types of market operators such as repairers). 

122 

 
 
 
 
 
                                                           
experience,  there  were  any  inconsistencies  or  contradictions  within  any  of  the 
individual instruments making up the motor vehicle block exemption rules (VBER, 
VGL, MVBER and SGL). 

The views on this question were divided. Whereas 27 respondents considered that there 
were inconsistencies or contradictions,278 27 believed that there were none.279  

Some of the respondents considering that inconsistencies existed further details on their 
position. For example, according to certain respondents, although not an inconsistency 
as  such,  Article  5b  MVBER  also  prevents  restrictions  on  the  original  equipment 
supplier’s  ability  to  sell  spare  parts  to  wholesalers.  This  is  an  important  difference 
between VBER and MVBER which, according to these respondents, the questionnaire 
did not capture. Another respondent argued that the existence of specific rules for one 
sector of the economy (motor vehicles) in itself raised a consistency issue. According to 
this  respondent,  the  structure  of  the  regime  (MVBER,  SGL  and  FAQ)  also  raised 
similar  issues.  Finally,  this  respondent  submitted  that  there  are  inconsistencies/lack  of 
clarity in respect of geographical limitations and the treatment of guarantees. 

The second question of this set enquired whether, in the respondents’ experience, there 
are  inconsistencies  or  contradictions  between  the  instruments  that  make  up  the 
motor vehicle block exemption rules (for example, instances where a provision of 
the MVBER is inconsistent with a provision of the VBER). 

The  large  majority  of  respondents  (48)  believed  that  there  were  no  inconsistencies  or 
contradictions280,  while  only  a  minority  of  respondents  (3)  indicated  that  such 
inconsistencies  or  contradictions  were  present.281  A  respondent  in  the  latter  group 
mentioned that the definition of a separate relevant market for each brand has the effect 
of  impeding  quantitative  limitations  in  selective  repair  networks  (see  paragraph  70 
SGL).  This,  the  respondent  claimed,  was  inconsistent  with  the  general  framework  on 
vertical  restrictions  and  contractual  freedom  generally  and  did  not  seem  necessary  in 
view  of  the  notable  increase  in  competition  from  independent  networks.  Another 
respondent mentioned that paragraph 19 SGL refers to the definition of "original part" 
or  "original  equipment"  in  the  type  approval  framework  Directive  2007/46/EC. 
However, the latter has been replaced by TAR, which does not contain this definition. 
Therefore, the definitions of parts should remain anchored in the SGL. 

The third question of this set asked whether, in the respondents’ experience, there were 

278   Primarily associations representing parts dealers, but also companies (mainly parts dealers). 
279   Primarily associations representing vehicle dealers and VMs, but also other types of stakeholders.  
280   Primarily associations representing parts dealers/importers, vehicle dealers or VMs, but also companies (mainly 

parts dealers and vehicle dealers/importers, but also other types of stakeholders). 

281   Namely, an association representing vehicle dealers, an association representing parts’ dealers and an association 

of competition lawyers. 

123 

 
 
 
 
 
 
                                                           
any  inconsistencies  or  contradictions  between  the  motor  vehicle  block  exemption 
rules and other Commission instruments that lay down rules or provide guidance 
on the application / interpretation of Article 101 of the Treaty (such as other block 
exemption  regulations,  the  Horizontal  Guidelines,  the  Notice  on  the  definition  of  the 
relevant market or the Guidelines on the application of Article 101(3) of the Treaty).  

that, 

indicated 

respondents 

there  were  no  such 
While  28 
inconsistencies/contradictions282, 
such 
view, 
inconsistencies/contradictions  were  present.283  The  respondents  which  identified 
inconsistencies or contradictions were asked to elaborate on their position.284 However, 
most  of 
identifying  specific 
inconsistencies or contradictions.  

these  simply  added  general  comments  without 

their  view, 
in 
that, 

in 
replied 

their 

19 

The  fourth  set  of  questions  asked  whether,  in  the  respondents’  views,  there  were 
inconsistencies between the motor vehicle block exemption rules and other existing 
or  upcoming  Commission  instruments  in  the  area  of  competition  policy  and 
enforcement. 

39 respondents believed that there were no inconsistencies or contradictions. By contrast, 
11 respondents considered that there were some inconsistencies or contradictions.285 The 
latter mentioned that in the context of qualitative selective distribution, if manufacturers 
refused access to the network to repairers that fulfil the selective network criteria, courts 
and national authorities generally ruled in favour of the repairers, based on the notion of 
contractual  freedom.  This  allegedly  gave  rise  to  legal  uncertainty.  A  few  respondents 
referred to the risk that VMs would close the OBD port with reference to cybersecurity 
provisions  in  UNECE  115-116,  but  in  contradiction  with  the  TAR.  A  couple  of 
respondents argued that the block exemption regulations should be more geared towards 
“private enforcement” in the B2B area in the future. This would be particularly important 
with regard to the question of the burden of proof. Finally, another respondent called on 
the  Commission  to  ensure  consistency  with  the  proposed  new  competition  tool. 
According  to  this  respondent,  the  Commission  should  also  ensure  consistency  with  its 
aims  to  make  the  most  of  the  data  economy  and  data  spaces,  especially  in  ensuring 
innovation and growth in the aftermarket. 

In  the  last  question  of  this  set,  respondents  were  asked  whether,  to  the  best  of  their 
knowledge,  there  were  any  inconsistencies  between  the  motor  vehicle  block 
exemption rules and other existing or upcoming EU rules. 

282   Primarily  associations  representing  vehicle  dealers  or  VMs,  but  also  other  stakeholders  belonging  to  various 

categories. 

283   Primarily associations representing parts dealer, but also independent undertakings (mainly parts dealers). 
284   A  number  of  comments  did  not  refer  to  identifiable  inconsistencies  or  contradictions  and,  therefore,  have  been 

omitted here.  

285   Primarily associations representing vehicles dealers or vehicle importers. 

124 

 
 
 
 
 
 
                                                           
23  respondents  replied  “yes”,  whereas  35  answered  in  the  negative.  Some  of  the 
respondents  in  the  latter  group  referred  to  the  TAR  and  stated  that  although  the  new 
TAR  contains  provisions  on  the  access  to  repair  and  maintenance  information,  the 
description of technical information in the MVBER is by its very nature more “fluid”, to 
take  account  of  technical  progress.  The  MVBER  should  therefore  emphasize  that  the 
notion  of  technical  information  should  not  be  strictly  limited  to  the  lists  of  examples 
provided in the TAR. This would help independent operators to access and use state-of-
the-art  technical  information.  Some  other  respondents  also  said  that  the motor  vehicle 
block  exemption  rules  should  be  updated  according  to  new  provisions  on  vehicle 
technical information included in the TAR, such as recitals 50, 51 and 52. 

Some other comments concerned in-vehicle data. In particular, a respondent argued that 
in  the  recitals  of  the  MVBER  there  could  be  a  reference  to  upcoming  regulations  on 
access to in-vehicle data. Another respondent was concerned to avoid inconsistencies or 
contradictions  with  future  European  rules  on  this  matter,  so  as  to  ensure  free  and 
competitive  access  to  data  for  all  actors  involved.  The  MVBER  should  be  consistent 
with the aims of the Commission in relation to the data economy, the data strategy and 
Data Governance Act.  

Finally,  some  respondents  referred  to  the  UNECE  regulations.  One  indicated  that  the 
integration of UNECE regulations 155 and 156 via Regulation (EU) 2019/2144 is going 
to  have  an  impact  on  the  overall  regulatory  framework,  and  that  potential  issues  of 
conflict required additional consideration. A few raised the risk that VMs would use the 
UNECE regulations as an excuse to block access to in-vehicle data via the OBD port. 
Another respondent  mentioned that in  the draft of the delegated legal  act on the TAR 
and  Annex  X  -  Diagnosis,  access  to  information  relevant  to  repairs  is  apparently 
reduced to safety- and environmentally-relevant systems. Some respondents argue that 
this  formulation  is  misleading  and  could  be  misused  to  exclude  competition  from 
independent market participants. Therefore, these respondents argued, special attention 
should  be  paid  to  ensuring  that  the  provisions  of  the  MVBER  regime  are  not 
undermined this way.  

2.3.5.  EU added value (Could the same results have been achieved with action at 

national level?)  

The first set of questions in this section asked respondents to indicate whether, in their 
experience,  the  motor  vehicle  block  exemption  rules  (namely  the  VBER,  the 
MVBER,  the  VGL  and  the  SGL)  had  made  it  easier  for  national  competition 
authorities (“NCAs”) and national courts to apply the rules consistently. 

The large majority of respondents (59) replied “yes” to the above question, while some 
(15) concluded the opposite. Some of the arguments raised by those responding in the 
negative concerned enforcement. In this vein, it was noted that although, in general, the 
MVBER had given clear guidance and made it easier for NCAs to apply the rules, the 

125 

 
 
 
 
 
 
Commission should have an active role in enforcing the current rules. Some respondents 
considered that for some topics, the absence of cases at  EU level  made it difficult  for 
market  players  and  Member  States  to  apply  the  rules  coherently.  Some  respondents 
maintained  that  in  certain  Member  States,  NCAs  did  not  seem  to  apply  the  MVBER 
rules. It was also claimed that national courts did not take proper notice of the MVBER 
and  especially  not  of  the  SGL.  Some  respondents  pointed  to  diverging  rulings  of  the 
European  Court  of  Justice  and  decisions  of  NCAs  (an  example  given  was  the  recent 
decision by the  German Federal Cartel Office286 regarding provisions within selective 
distribution agreements that prohibited distributors from selling products via third-party 
platforms).  Finally,  some  respondents  flagged  that  as  a  result  of  the  removal  of  the 
specific  provisions  for  dealers  from  the  MVBER,  some  Member  States  had  adopted 
specific  provisions  on  this.  This  may  lead  to  fragmentation  on  rules  across  Member 
States  as  some  national  regimes  may  be  more  extensive  than  others.  Finally,  a 
respondent claim for clearer definitions of original parts and parts of matching quality, 
emphasizing  that  the  latter  are  the  same  quality  as  original  parts.  That  way 
VMs/authorised dealers  would be unable to  make claims in  relation  to  the spare parts 
(e.g., glass) supplied by the aftermarket. 

The second set of questions enquired whether, in the experience of the respondents, the 
motor vehicle block exemption rules had provided added value, or whether national 
guidance, the enforcement practice of NCAs and relevant national case-law could have 
been equally or more effective. 

A  large  majority  of  respondents  (64)  considered  that  national  provisions  would  have 
been less effective. Only a few  respondents  considered that national  provisions would 
have been equally effective (2)287 or more effective (2).288 One of the two respondents 
considering that national  rules would have been more effective argued that local  rules 
could  have  been  adopted  to  require  make  VMs’  market  access  conditional  on  giving 
access to technical information to independent operators within a given Member State. 
One  of  the  respondents  stating  that  national  rules  would  have  been  equally  effective 
explained  that  since  the  transfer  of  the  exemption  for  motor  vehicles  to  the  VBER  in 
2013, the conditions for exemption relating to contractual standards for dealerships had 
been  transferred  to  national  provisions  in  the  respondent’s  Member  State.  The 
respondent indicated that this had been welcomed at dealer and repairer level. However, 
the EU provisions in the MVBER framework make sense within their scope and should 
also be extended further. 

2.4.Final comments  

To conclude the questionnaire, respondents were asked whether they had anything else 

286   German Competition Authority, Intersport, Press release, 25 June 2020. 
287   A business association representing vehicle dealers and an employee/consumer organization. 
288   A trade organization and a repairer. 

126 

 
 
 
 
 
                                                           
to  say  that  might  be  relevant  for  the  evaluation  of  the  motor  vehicle  block 
exemption rules (namely the VBER, the MVBER, the VGL and the SGL). 

Most  respondents  reiterated  the  main  points  of  their  position.  Many  respondents 
referred  to  the  need  to  address  access  to  in-vehicle-data  (and  some  mentioned  that 
consumers should be able to decide to whom this data goes) and to the fact that access 
to technical information should continue or be reinforced. Dealers referred to their wish 
to  see contractual protection (including by limiting direct  sales by OEMs to  end users 
and by dealing with franchise-like contractual relationships in the MVBER and VBER). 
Some respondents reiterated the need for better enforcement of the MVBER (adapted to 
SMEs) and flagged that in some Member States the standard of proof required by courts 
for  bringing  a  case  against  VMs  was  very  high  (e.g.,  in  the  Netherlands).  One 
respondent  wished  to  see  the  introduction  of  an  EU  regulation  against  the  “abuse  of 
economic dependence” in vertical relationships. Finally, a couple of respondents active 
in the insurance sector mentioned that the questionnaire did not explicitly take account 
of insurers (which are also indirect consumers of spare parts).  

3.  Summary of the targeted consultation of NCAs 

A summary report of the targeted consultation of NCAs was published on the dedicated 
MVBER review webpage on DG Competition’s website289 on 17 March 2021. 

3.1.Introduction 

The European Commission (“the Commission”) is currently evaluating the functioning 
of  the  motor  vehicle  block  exemption  rules290,  comprising  the  Motor  Vehicle  Block 
Exemption Regulation (EU) No 461/2010 (“MVBER”), the application of the  General 
Block Exemption Regulation (EU) No 330/2010 to the motor vehicle sector (“VBER”), 
along with the Supplementary guidelines on vertical restraints in agreements for the sale 
and  repair  of  motor  vehicles  and  for  the  distribution  of  spare  parts  for  motor  vehicles 
(“SGL”) and the Guidelines on vertical restraints (“VGL”).291  

In this context, the Commission asked the National Competition Authorities (“NCAs”) 
to share their experience in applying the motor vehicle block exemption rules. NCAs are 
bound by the MVBER and the VBER but not by the Commission’s Guidelines, although 
they do tend to also take the latter into account. 

The Commission received 24 contributions.292 

289  See: https://ec.europa.eu/competition/sectors/motor_vehicles/legislation/mvber_review.html 
290   Any reference to the motor vehicle block exemption rules in this document should be understood as comprising 

the four instruments, namely the MVBER, the VBER and their respective Guidelines.  

291   As per Articles 3 and 4 MVBER, the VBER has applied to after-sales agreements since June 2010 and to motor 
vehicle distribution since June 2013, the latter falling exclusively within the scope of the VBER ever since. 

292   One contribution was submitted by one of the Contracting Parties to the EEA Agreement. 

127 

 
 
 
 
 
                                                           
Overall,  the  NCAs  consider  that  the  Commission  should  maintain  the  motor  block 
exemption  rules  in  place,  while  taking  the  opportunity  of  the  review  to  simplify  and 
fine-tune  the  current  regime,  notably  in  light  of  market  developments  over  the  last 
decade. 

The purpose of this summary is to outline the main points raised by the NCAs without 
regard to the number of contributions addressing a particular point, or whether or not a 
particular  point  of  view  is  shared  by  all  the  NCAs.  Therefore,  in  the  following, 
reference  is  made  generically  to  “NCAs”.  However,  for  issues  on  which  NCAs 
expressed clearly diverging views, both sides of the argument are presented.293 

This summary provides the NCAs’ general views on the evaluation of the motor vehicle 
block  exemption  rules,  following  the  five  evaluation  criteria  established  by  the  Better 
Regulation  Guidelines,294  namely:  effectiveness,  efficiency,  relevance,  coherence  and 
EU added value (see section 3.2). It also summarizes the comments made by the NCAs 
as  regards  the  functioning  of  some  specific  aspects  of  the  motor  vehicle  block 
exemption rules (see section 3.3). 

3.2.General views of the NCAs 

Regarding the effectiveness of the motor vehicle block exemption rules, NCAs generally 
share the view that the rules have met their objectives and have contributed to keeping 
markets  competitive in  the EU. NCAs report that  intensity of competition in  the three 
areas  of  the  motor  vehicle  sector  has  either  not  changed  significantly  or  has  mostly 
intensified.  Few  NCAs  report  a  decrease  in  the  intensity  of  competition  in  the  three 
areas  of  the  motor  vehicle    sector  covered  by  this  report.  Nevertheless,  NCAs  report 
having encountered in  their enforcement activities conducts  which could  in  their view 
serve as indirect means  of circumventing the obligation to ensure an equal footing for 
authorised  and  independent  operators,  such  as  the  application  of  extended  warranties, 
burdensome accreditation processes, and the steering of demand towards the authorised 
networks (see section 3.3). Additionally, some NCAs suggest that the abolition of the 
so-called  “dealer  protection”  clauses295  may  have  aggravated  existing  imbalances  of 
contractual power between vehicle manufacturers and dealers. In this regard, they point 
to  dealers  facing  increased  financial  pressure,  due  to  Vehicle  manufacturers  having 
shifted costs and investment requirements on to them.  

As to the coverage of the block exemption, NCAs are mostly of the view that the market 
share threshold, by virtue of which the regime only exempts agreements where neither 

293   The contributions received from the NCAs cannot be regarded as the official position of the Commission and its 

services and thus do not bind the Commission. 

294   The better regulation requirements are about designing and evaluating EU policies and laws transparently on the 
basis of evidence and the views of stakeholders and citizens. They are applicable to all policy areas and aim for 
targeted  and  proportionate  regulation  that  does  not  go  further  than  required  to  achieve  a  given  objective,  while 
bringing benefits at minimum cost. 

295   Mainly contained in Article 3 of the previous MVBER (Reg. 1400/2002). 

128 

 
 
 
                                                           
the  market  share  of  the  buyer  nor  that  of  the  seller  exceed  30%,  is  still  appropriate. 
However, they point at difficulties in relation to market definition and the calculation of 
market  shares  (see  section  3.3).  Finally,  NCAs  note  that  the  motor  vehicle  block 
exemption  rules  have  provided  helpful  guidance  to  NCAs  and  legal  certainty  to 
stakeholders for the assessment of vertical  agreements and restrictions. However, they 
are  of  the  view  that  the  effectiveness  of  the  rules  could  be  increased  by  providing 
clarifications  and  further  guidance  on  some  issues  (see  section  3.3)  and  by  reflecting 
recent  market  developments,  new  business  models  and  new  technologies.  NCAs  also 
suggest  integrating  the  recent  case  law  in  relation  to  vertical  restraints  into  the 
respective provisions to increase legal certainty.  

Regarding  the  efficiency  of  the  motor  vehicle  block  exemption  rules,  NCAs  generally 
consider that the motor vehicle block exemption rules have reduced the cost stemming 
from  the  assessment  of  the  compliance  of  vertical  agreements  in  the  motor  vehicle  
sector with Article 101 Treaty on the Functioning of the European Union (“the Treaty”). 
Although  the  rules  provide  NCAs  with  a  structured  framework  for  their  enforcement 
activities, the NCAs highlight  that the reduction of cost  may be minimal,  as assessing 
the complexities of vertical agreements in the motor vehicle  sector still requires intense 
resources due to inter alia the intricate legal framework that made up the motor vehicle 
rules, the limited case law, and the complex and technical nature of the specific cases in 
the  motor  vehicle  sector.  Nevertheless,  NCAs  generally  assess  the  cost  as  reasonable 
and proportionate to the benefits obtained.  

Regarding  the  relevance  of  the  motor  vehicle  block  exemption  rules,  NCAs  generally 
consider  that  all  the  objectives  of  the  motor  vehicle  block  exemption  rules  are  still 
relevant today. Moreover, NCAs also indicate that the current scope of the rules - that is 
to say, self-propelled vehicles intended for use on public roads and having three or more 
road wheels - is still generally appropriate. However, some NCAs also indicate that the 
rules  should  be  revised  to  reflect  recent  market  developments  and  to  clarify  existing 
obligations. First, these NCAs note the increasing importance ensuring that independent 
repairers  have  access  to  information  relevant  for  the  provision  of  aftersales  services, 
notably  repair  and  maintenance,  and  to  spare  parts.  Secondly,  several  NCAs  draw  the 
Commission’s attention to the emerging issue of access to in-vehicle generated data and 
resources, which have the potential to unlock new business opportunities for traditional 
players and new entrants. Finally, some NCAs stress the increased importance of online 
sales and sales facilitators (e.g., online platforms) as well as a perceived shift towards 
new  distribution  models  (e.g.,  dual  distribution  combining  agency  and  selective 
distribution, online sales, direct distribution by OEMs) (see section 3.3).  

NCAs  generally  consider  that  the  motor  vehicle  block  exemption  rules  are  coherent 
both  in  themselves  and  with  other  instruments  that  provide  guidance  on  the 
interpretation of Article 101 of the Treaty. That being said, some NCAs note that three 
potential  inconsistencies  (see  section  3.3).  Moreover,  NCAs  call  for  ensuring 
consistency  between  the  motor  vehicle  block  exemption  rules  and  other  upcoming 
legislative initiatives (e.g., the Digital Markets Act or the Digital Services Act, the Type 

129 

 
Approval Regulation) particularly concerning the issue of access to in-vehicle data. 

Finally,  NCAs  generally  consider  that  the  motor  vehicle  block  exemption  rules  have 
added  value  and  have  facilitated  the  assessment  of  the  compatibility  of  vertical 
agreements in the motor vehicle  sector with Article 101 of the Treaty and that action at 
only national level would have been less effective. This being said, NCAs have reported 
only limited experience in the application of the vehicle block exemption rules. 

3.3.Overview of the main issues raised by NCAs 

When  evaluating  the  functioning  of  the  motor  vehicles  block  exemption  rules,  NCAs 
have identified a number of specific issues. In the following, these issues are grouped in 
main categories: (i) scope of the exemption, (ii) achievement of objectives and indirect 
means  of  achieving  anticompetitive  results,  (iii)  legal  certainty,  and  (iv)  potential 
inconsistencies. 

3.3.1.  Scope of the exemption  

Market share thresholds for exemption and market definition  

Based on their experience and subject  to  the points  set  out  below, NCAs indicate that 
the 30% market share threshold for agreements to benefit from the motor vehicle block 
exemption296 is generally still appropriate.  

Nevertheless, some NCAs point out that, as result of the brand-specific nature of the of 
the markets for repair and maintenance services and for the distribution of spare parts, 
the practical applicability of the motor vehicle rules in these areas is limited, as the 30% 
threshold is  generally exceeded. Some NCAs deduce from  this that the threshold may 
be  too  low,  at  least  for  the  provision  of  repair  and  maintenance  services  and  for  the 
distribution  of  spare  parts.  On  the  other  hand,  following  the  same  logic,  some  NCAs 
consider that the current threshold is too high with regards to the market for new motor 
vehicles, as for certain countries and segments the market is very fragmented, meaning 
that all agreements fall below the market share threshold.  

NCAs  also  express  differing  views  with  regard  to  the  market  definition  and  the 
calculation  of  market  shares  in  the  motor  vehicle    sector.  In  particular,  some  NCAs 
consider that certain markets for repair and maintenance services and for the distribution 
of spare parts may not be brand-specific. In this regard, these NCAs suggest that there 
may be a distinction between "complex repairs", for which there are no / few alternative 
service providers, and more "simple" repairs, for which there are effective alternatives. 
In their view, while in the first example the market could be brand specific, it would not 
be so in the second example. In the same vein, some NCAs suggest that, from the point 
of  view  of  the  repairer,  the  offers  of  vehicle  manufacturer  /  importers,  parts  suppliers 

296   Articles 3 and 7 VBER and paragraphs 93-95 VGL.  

130 

 
 
 
 
 
 
                                                           
and other independent repair chains may be regarded as substitutable. Therefore, in the 
NCAs view, the market may not be brand-specific as access to the brand of a particular 
vehicle  manufacturer  /  importer  may  not  be  indispensable  for  a  repairer  to  operate  on 
the relevant market. Finally, some NCAs question whether the hitherto separate markets 
for the sale of new motor vehicles and for aftersales services may not be tipping towards 
an integrated multi-brand “system” market.  

Finally, some NCAs highlight their view that guarantee services and services provided 
during  vehicle  recalls  should  be  excluded  when  calculating  the  market  share  of  the 
authorised  networks.  In  the  view  of  these  NCAs,  the  inclusion  of  such  services  may 
artificially  inflate  the  perceived  market  shares  of  authorised  repairers  vis-à-vis  their 
independent competitors. 

Hardcore restrictions 

NCAs  recognise  the  importance  of  the  hardcore  restrictions,297  the  presence  of  which 
removes  the  benefit  of  the  exemption  from  the  whole  agreement.  However,  based  on 
their enforcement experience, some NCAs point out two types of behaviour which they 
consider should also be considered as “hardcore”.   

First,  some  NCAs  point  to  refusals  by  Original  Equipment  Manufacturers  (OEMs)  to 
give  independent  repairers  access  to  technical  information,  diagnostic  and  other 
equipment,  tools,  including  any  relevant  software,  or  training  required  for  repair  and 
maintenance  of  motor  vehicles.  These  NCAs  concede  however  that  in  practice  the 
inclusion  of such a clause may not  have real  effects,  since  for passenger cars  at  least, 
most repair agreements may not benefit from block exemption in any event, due to the 
market shares of the members of the authorised networks. Nevertheless, NCAs consider 
that  listing  a  OEMs’  refusal  of  giving  independent  repairers  access  to  technical 
information as a hardcore restriction, may still have a signalling effect on the market for 
provision of repair and maintenance services. 

Second, some NCAs also suggest that the hardcore clause listed in Article 5(c) MVBER 
- namely the restriction on component / part suppliers’ ability to place their trademark / 
logo on the components / parts supplied - may be redundant. In this regard, the NCAs 
suggest that in their experience the true issue relates more to the ability of the supplier 
to erase the brand of the motor vehicle manufacturer rather than its ability to place its 
own trademark.  

Excluded restrictions 

NCAs indicate that the  current list298 of  contractual  clauses that may  not  benefit from 
the  exemption  (“excluded  restrictions”)  is  sufficient.  NCAs  generally  agree  that  there 

297   Article 4 VBER and Article 5 MVBER. 
298   Article 5 VBER, paragraphs 66-68, 69-182 and 129-150 VGL and paragraphs 26, 27 and 28-41 SGL. 

131 

 
                                                           
are  no  other  types  of  vertical  restriction  in  the  motor  vehicle  sector  that  the  VBER  / 
MVBER  lists  as  excluded  but  which  should  not  be  considered  as  such.  One  NCA 
nevertheless  points  to  the  need  to  include  as  an  excluded  restriction  the  alleged 
obligation  imposed  on  dealers  /  service  partners  to  transfer  business  information  to 
Vehicle manufacturers.  

3.3.2.  Achievement  of  objectives  and  alleged  indirect  means  of  achieving  anti-

competitive results 

Achievement of specific policy objectives  

NCAs  indicate  that  the  specific  policy  objectives299  that  the  motor  vehicle  block 
exemption  rules  aim  at  achieving  have  generally  been  fully  or  partially  achieved. 
Nevertheless,  potential  competition  concerns  remain,  in  particular  with  regards  to  the 
specific  objectives  of  enabling  independent  repairers  to  compete  effectively  with 
authorised  repairers,  preventing  foreclosure  of  spare  part  producers  in  the  aftermarket 
and protecting competition between dealers / repairers of the same brand. 

Preventing foreclosure of spare parts producers in the
aftermarket

Protecting competition between authorised repairers of
the same brand

Enabling independent repairers to compete effectively
with authorised repairers

Preventing restrictions on parallel trade in motor vehicles

Protecting competition between dealers of the same brand

Ensuring access to vehicle retail and repair markets for
new / existing VMs

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Achieved

Partially achieved

Not achieved

Figure 6: NCAs views on the achievement of the specific policy objectives  

First, as regards the objectives of enabling independent repairers to compete effectively 
with  authorised  repairers  and  preventing  foreclosure  of  spare  part  producers  in  the 
aftermarket,  some  NCAs  indicate,  based  on  their  enforcement  experience,  that 
difficulties  for  independent  repairers  to  obtain  timely  access  to  spare  parts  and  to 

299   These specific policy objectives were identified for the first time  in Annex I of the Communication pursuant to 
Article 5 of Council Regulation No 19/65/EEC of 2 March 1965 on the application of Article 81(3) of the Treaty 
to categories of agreements and concerted practices. OJ C 67/2 of 16.3.2002. 

132 

 
 
 
                                                           
information  relevant  for  the  provision  of  aftersales  services  -  notably  repair  and 
maintenance  -,  persist  and  that  this  may  become  more  important  in  the  future. 
Moreover,  some  NCAs  report  that  as  result  of  the  increase  in  complexity  of  motor 
vehicles,  specialized  trained  personnel  and  complex  equipment  are  needed,  which  in 
turn  may  give  authorised  repairers  an  advantage  over  their  independent  competitors, 
forcing the latter to focus mainly on simple mechanical operations. Some NCAs suggest 
that the transition to electric and hybrid vehicles may reinforce this trend.  

Secondly, on the objective of protecting competition between authorised repairers of the 
same  brand,  some  NCAs  indicate  that  the  quality  requirements  set  by  vehicle 
manufacturers for authorised repairers have become increasingly strict, requiring large 
investments in personnel, buildings and equipment, which in turn translates into fewer 
authorised  repairers  being  admitted  to  the  network  and  thus  to  less  intra-brand 
competition.  

As to the objective of ensuring access to vehicle retail and repair markets for new and 
existing  market  players,  some  NCAs  report  that  the  increasing  consolidation  between 
dealers combined with  a growing presence of vehicle-manufacturer-owned outlets  and 
rigid  remuneration  systems  and  sales  campaigns  leaves  little  room  for  effective 
competition  in  the  distribution  of  new  vehicles.  In  this  vein,  few  NCAs  also  report  a 
trend towards direct distribution by OEMs when it comes to new motor vehicles, with 
dealers acting as mere delivery and configuration points. Some NCAs also highlight that 
remuneration  schemes  and  sales  campaigns  imposed  on  dealers  have  the  effect  of 
harmonising costs, decreasing dealer margins, and thus reducing the intensity of intra-
brand competition. 

Finally,  on  the  objective  of  preventing  restrictions  of  parallel  trade  of  motor  vehicles, 
some  NCAs  report  that  cross-border  competition  has  intensified  slightly  as  car 
manufacturers  no  longer  try  to  prevent  the  re-import  of  motor  vehicles  directly. 
However,  some  NCAs  report  a  tendency  to  attempt  to  prevent  cross-border  sales  via 
indirect  means  (e.g.,  by  shortening  the  warranty  period  in  certain  Member  States  or 
“accidentally”  failing  to  provide  the  registration  document  for  the  end  consumer). 
Finally, some NCAs report that since car sales margins are low, and dealers make much 
of their profit from repair and maintenance on cars that they have sold locally, they have 
few incentives to sell to consumers resident in other Member States. 

Indirect means of achieving anti-competitive results 

Several NCAs report having encountered conduct in their enforcement activities which 
could serve as an indirect means of achieving anti-competitive results.  

Some NCAs describe a set of conducts in respect of the relationship between OEMs and 
the members of their authorised networks that could  potentially be anticompetitive.  In 
particular,  NCAs  indicate  the  following:  (i)  fixing  remuneration  systems  /  sales 
campaigns that may have steering effects on dealers’ conduct and unifying price effects; 
(ii)  setting  qualitative  standards  may  raise  /  unify  costs,  thereby  increasing  dealers’ 

133 

 
economic  dependence  on  a  particular  supplier;  (iii)  pushing  authorised  distributors  to 
merge  may  increase  market  concentration  at  dealer  level;  (iv)  imposing  commercial  / 
pricing policies on dealers may indicate an imbalance in rights and obligations between 
the  parties;  (v)  setting  arbitrary  limits  on  the  number  of  dealers  may  unjustifiably 
exclude some from the distribution networks. 

Secondly, some NCAs refer to agreements between vehicle manufacturers / importers / 
authorised repairers and insurance companies to allegedly direct customers to authorised 
repairers to the detriment of independent repairers. These NCAs are concerned that such 
agreements  may  hamper  market  access  for  independent  repairers  and  serve  as  an 
indirect  means  to  stimulate  the  use  of  spare  parts  sourced  from  the  vehicle 
manufacturers.  NCAs  also  report  allegations  that  importers  /  vehicle  manufacturers  / 
dealers  have  dissuaded  customers  from  using  independent  repairers  to  repair  their 
vehicles by stating that the warranty would be voided if maintenance and repairs were 
carried out by a non-authorised repairer.  

Thirdly,  some  NCAs  report  that  consumers  have  no  visibility  as  to  the  supplier’s 
recommended  prices  for  repair  and  maintenance  services  and  that  authorised  repairers 
seem to consistently apply the recommended price. In these NCAs’ view, this may lead 
to higher prices for consumers and potentially to price coordination.  

Finally, some NCAs report having encountered instances where vehicle manufacturers / 
importers allegedly withheld a code necessary for the installation of a third-party tool. 
According to the NCAs, this could significantly reduce the ability of such tool suppliers 
to offer their services. 

3.3.3.  Legal certainty  

Definitions 

NCAs  consider  that  the  motor  vehicle  block  exemption  rules  have  provided  a  helpful 
framework for companies (and advisors) to (self-)assess the compatibility of agreements 
in the motor vehicle with Article 101 of the Treaty. However, NCAs argue that some of 
the  definitions  given  by  the  motor  vehicle  block  exemption  rules  are  not  sufficiently 
clear.  

First,  on  the  definition  of  vertical  agreements,300  some  NCAs  report  difficulties 
assessing agreements between competitors in which one party to the agreement acts as a 
distributor. In this regard, the NCAs note that the Horizontal Guidelines301 refer back to 
the VGL for vertical aspects of horizontal agreements. 

300   Article 1(1)(a) VBER, paragraphs 24-26 VGL and Article 1(1)(a) MVBER. 
301   Guidelines  on  the  applicability  of  Article  101  of  the  Treaty  on  the  Functioning  of  the  European  Union  to 

horizontal co-operation agreements. OJ C 11, 14.1.2011. 

134 

 
                                                           
Second,  as  regards  agency  agreements,302  some  NCAs  note  that  the  VGL  lack  the 
necessary detail to assess the distinction between independent traders and agents acting 
on  behalf  of  a  supplier,  especially  with  regard  to  the  difference  in  the  legal  and  /  or 
commercial risks incurred. Moreover, these NCAs argue that the VGL do not  provide 
adequate clarity as regards the increased use of mixed distribution models, under which 
a  single  undertaking  combines  the  functions  of agent  and  authorised  distributor  in  the 
same product market for the same brand303 In this regard, the NCAs note that it may be 
questionable  whether  an  OEM  should  be  allowed  to  have  two  separate  contracts  with 
the  same  dealer,  as  the  agency  model  should  prevent  the  dealers  from  taking  any 
financial or business risk, which the dealers already are bearing due to the current dealer 
contracts. The NCAs point out that this is particularly important question for the motor 
vehicle  sector as OEMs usually enjoy a strong market position and impose very costly 
standards on authorised motor vehicle dealers. 

Third,  certain  NCAs  note  that  through  practices  commonly  known  as  tooling 
arrangements, vehicle manufacturers are prohibiting original equipment suppliers from 
using the original tools to manufacture parts for aftermarket supply under the suppliers’ 
own brands. The NCAs question whether these could constitute genuine subcontracting 
agreements304  such  as  would  not  be  caught  by  Article  101  of  the  Treaty,  and  express 
concern that the Commission’s 1978 Subcontracting Notice305 does not provide clarity 
on  this  issue,  potentially  allowing  vehicle  manufacturers  to  remove  all  sources  of 
potential competition for spare parts supply.  

Fourth, on the definition of non-compete obligation,306 some NCAs seem to suggest that 
the wording of the “no-compete” may be unclear as the clause seems to refer rather to a 
ban on exclusivity obligations than to a non-compete obligation in the sense used when 
referring to horizontal agreements.  

Fifth,  as  regards  the  concept  of  selective  distribution,307  NCAs  indicate  that  there  is 
insufficient clarity regarding the assessment of vertical restraints within the framework 
of selective distribution systems in light of the recent jurisprudence. In particular, NCAs 
seek  clarifications  on  the  following  points:  (i)  the  implication  of  recent  judgments  to 
assess a vertical restraint when implemented in the framework of a selective distribution 
system;  (ii)  the  limits  to  quantitative  selective  distribution  systems  for  motor  vehicle 
distribution  and  provision  of  repair  and  maintenance  services  in  light  of  recent 

302   Paragraphs 12-17 VGL. 
303   Please note that the present consultation with NCAs was conducted between October 2020 and January 2021. On 
5  February  2021,  the  Directorate  General  for  Competition  published  a  Working  Paper  titled  “Distributors  that 
also act as agents for certain products for the same supplier” setting out its preliminary views on this issue.  

304   Paragraph 22 VGL and paragraph 23 SGL. 
305   Commission  notice  of  18  December  1978  concerning  its  assessment  of  certain  subcontracting  agreements  in 

relation to Article 85 (1) of the EEC Treaty. OJ C 1, 3.1.1979. 

306   Article 1(1)(d) VBER 
307   Article 1(1)(e) VBER and Article 1(1)(i) MVBER. 

135 

 
                                                           
jurisprudence  (e.g.,  C-158/11);308  (iii)  the  qualification  of  online  sales  restrictions  and 
the legal treatment of online sales in the context of selective distribution. 

Sixth,  on  the  concept  of  intermediary,309  some  NCAs  highlight  that  clarity  is  needed 
with respect to the position of internet platforms. In this regard, NCAs highlight that in 
the  field  of  motor  vehicle  sales,  online  e  platforms  act  could  also  be  said  to  act  as 
intermediaries between customers and dealers. In addition, NCAs indicate that there are 
also  firms  active  in  the  provision  of  repair  services,  who  intermediate  between 
customers  and  repairers.  Some  NCAs  are  of  the  view  that  both  kinds  of  operator  are 
related  to  the  current  notion  of  intermediary,  since  they  constitute  channels  by  which 
end  customers  acquire  vehicles  from  dealers  or  services  from  repairers  without  being 
part  of  the  distribution  chain  themselves.  They  therefore  suggest  that  clarification  is 
lacking on these recent developments. NCAs note nevertheless that the question if and 
under  which  conditions  platform  bans  constitute  a  hardcore  infringement  pursuant  to 
Article 4 (c)  VBER  is  a general  question which  should be addressed  across  sectors in 
the VBER and/or VGL.  

Seventh,  on  the  concept  of  motor  vehicle,310  some  NCAs  note  the  absence  of  a 
definition indicating when a motor vehicle should be considered “new”.  

Eighth,  as  regards  spare  parts,311  some  NCAs  argue  that  the  scope  of  the  definition 
should  be  expanded  to  encompass  accessories:  that  is  to  say,  parts  which  are  not 
intended  to  replace  components  of  the  vehicle,  but  which  are  rather  “add-ons”.This 
question is relevant for the scope of the MVBER, since Article 4 MVBER only refers to 
the  conditions  under  which  the  parties  may  purchase,  sell  or  resell  spare  parts.  If  the 
definition of spare parts were to be altered or expanded, it should be kept in mind that 
the notion would deviate from the definition set out in Regulation 2018/858.312  

Ninth, as regards the concept of connected undertaking,313 some NCAs indicate that the 
current definition encompasses situations where neither of the undertakings in question 
actually control the other. 

Finally,  on  the  concept  of  active  and  passive  sales,314  few  NCAs  are  of  the  view 
clarification is needed as to how to interpret indirect restrictions on online sales which, 
they  argue,  are  analogous  to  the  imposition  of  dual  prices,  and  therefore  should  be 

308   Case C-158/11 Auto 24 SARL v Jaguar Land Rover France SAS of 14 June 2012. 
309   Paragraph 52 SGL. 
310   Article 1(1)(g) MVBER. 
311   Article 1(1)h) MVBER. 
312   Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and 
market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units 
intended  for  such  vehicles,  amending  Regulations  (EC)  No  715/2007  and  (EC)  No  595/2009  and  repealing 
Directive 2007/46/EC. OJ L 151, 14.6.2018. 
313   Article 1(2) VBER and Article 1(2) MVBER. 
314   Paragraph 51 VGL. 

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considered as restrictions of passive sales. 

3.3.4.  Specific conducts  

Access to technical information 

NCAs  point  to  the  need  to  reflect  on  whether  the  current  definition  of  technical 
information315  could  be  updated,  against  the  background  of  the  rising  complexity  of 
motor vehicles and the increasing potential of in-vehicle data316. They also indicate that 
the  list  of  “technical  information”  in  the  Supplementary  Guidelines  should  be 
considered  non-exhaustive,  in  line  with  the  fast-paced  technological  developments 
facing the motor vehicle sector.  

In particular, some NCAs raise the question of whether data generated in-vehicle should 
be included in  the notion of “technical  information” given in  the Guidelines, and thus 
shared on an equal basis with authorised and independent repairers, or whether this data 
rather constitutes a separate category of essential input. Some NCAs note that if OEMs 
share  in-vehicle  generated  data  with  authorised  repairers  then  it  should  be  considered 
“technical  information”  and  should  therefore  be  shared  with  independent  repairers  to 
allow effective competition on the aftermarkets. On the other hand, certain NCAs also 
question  whether  access  to  such  data  can  indeed  be  considered  essential.  NCAs 
nevertheless also note that the number of connected cars is still relatively low and that 
manufacturers are still largely experimenting with in-vehicle data, meaning that it may 
be too early to judge whether anticompetitive behaviour may emerge. Some NCAs also 
question  whether  competition  law  is  in  general  the  appropriate  instrument  to  govern 
such data access.  

NCAs  identify  the  following  items  that  should  be  considered  as  technical  information 
for  the  purposes  of  the  motor  vehicle  block  exemption  rules  and  that,  if  provided  to 
authorised shops, should also be shared on an equal footing with independent repairers: 

Some NCAs report that an increasing number of brands use “digital  service booklets” 
instead  of  the  traditional  physical  booklets,  which  remained  with  the  vehicle  owner, 
meaning  the  documentation  of  service  and  maintenance  work  done  on  a  vehicle  is 
registered  (only)  on  a  digital  platform  run  by  the  respective  OEM.  NCAs  report  that 
registration and access to those platforms for independent operators as well as providers 
of  multi-brand  services  is  in  some  instances  being  impeded  or  made  overly  difficult, 
with  potentially  exclusionary  effects  on  independent  operators.  Some  NCAs  advocate 
that free access should be given to such digital service booklets.  

Some  NCAs  indicate  that  access  to  information  related  to  the  performance  of  repair 

315   Paragraph 66 SGL. 
316   Data  has  the  potential  to  support  a  wide  range  of  innovative  services  (e.g.,  remote  prognostics  and  diagnostics, 
accident  and  breakdown  assistance,  navigation,  fleet  management,  leasing  and  car-sharing,  traffic  management, 
usage-based insurance and infotainment) for traditional players and new entrants and therefore, NCAs note that in 
the future independent market participants will need access to data directly collected by the car. 

137 

 
                                                           
services to the electronic control units (ECUs) of motor vehicles, including all features 
concerning  safety  and  security,  should  be  considered  to  be  technical  information  and 
should be provided to independent operators.  

Some NCAs indicate that OEM have started using specific codes for the installation of 
spare parts in motor vehicles which are needed for a replacement part to be registered 
and therefore recognised by the vehicle’s software. NCAs note that it may be necessary 
to allow independent repairers to have access to such software to allow them to register 
replacement parts. 

Finally, NCAs flag the need to update paragraph 67 of the SGL to reflect the fact that, 
since the SGL were adopted, Regulation 715/2007317 has been replaced by Regulation 
2018/858. 

Misuse of warranties 

Some NCAs advance the view that the guidance given on the misuse of manufacturers’ 
warranties is not clear enough.318  

They  report  that  independent  repairers  do  not  often  have  the  opportunity  to  carry  out 
repair and maintenance on vehicles during the warranty period. In this vein, some NCAs 
also  note  that  consumers'  reluctance  to  use  the  services  of  an  independent  repairer 
during  the  warranty  period  or  warranty  extension  period  is  considerable  as  OEMs  / 
importers / authorised dealers or repairers allegedly convey either directly or indirectly 
the  message  that  the  warranty  will  cease  to  apply  if  the  end  user  has  repair  and 
maintenance work carried out outside the authorised repair networks. Some NCAs refer 
to  conducts  such  as  complex  warranty  conditions  or  long  warranty  periods,  which  in 
their view, steer vehicle owners towards authorised repairers. NCAs further add that this 
trend  is  exacerbated  by  insurance  companies’  certification  requirements,  which 
allegedly tend to favour authorised garages. 

In this  light,  some NCAs stress  the importance of keeping an explicit reference to  the 
misuse of warranties in the SGL. In the same vein, NCAs highlight the importance of 
ensuring  that  the  clauses  contained  in  all  the  documents  proposed  to  consumers  by 
OEMs/  authorised  dealers  or  repairers  clearly  state  the  consumer's  right  to  use  the 
services of an independent repairer without losing the benefit of the warranty.  

Finally, certain NCAs indicate that the SGL could be clearer as regards the distinction 
between  legal  (statutory)  warranties,  extended  (unilateral)  warranties,  and  warranty 
extensions  (often  issued  in  combination  with  maintenance  contracts).  Additionally, 
certain NCAs indicate that it is not clear whether authorised repairers may legitimately 

317   Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of 
motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and 
on access to vehicle repair and maintenance information. OJ L 171, 29.6.2007, p. 1–16. 

318   Paragraphs 49 and 69 SGL. 

138 

 
                                                           
refuse  to  honour  the  manufacturer’s  warranty  on  a  whole  element  of  a  vehicle,  if  an 
alternative brand of spare parts has been used to replace a particular part of that system.  

Resale price maintenance 

In  line  with  their  contributions  to  the  VBER  consultation,  some  NCAs  note  that  the 
VBER and the VGL do not provide sufficient legal certainty as to whether certain “grey 
areas” constitute resale price maintenance (RPM).319 In particular, they point to a lack 
of clarity as regards the circumstances in which recommended resale prices amount  to 
RPM  and  whether  certain  practices  restricting  the  ability  of  buyers  to  determine  their 
selling  price  should  be  considered  as  RPM  (e.g.,  suppliers  setting  indicative  margin 
based  on  recommended  sales  price,  and  then  pushing  the  actual  resale  price  down  by 
forcing the distributors to  pass  on /  grant  extra discounts).  In  addition,  NCAs indicate 
that  the  distinction  between  clear-cut  RPM  and  so-called  “hub  &  spoke”  scenarios  is 
currently not reflected in the VBER and the VGL.  

Restriction of the buyer's ability to sell components 

Some  NCAs  suggest  clarifying  that  Article  4  (b)  (iv)  VBER  does  not  apply  to  spare 
parts and other components which are supplied to a vehicle manufacturer for resale in 
their  supplied  state,  but  only  to  components  which  are  to  be  incorporated  in  other 
products. 

3.3.5.   Potential inconsistencies  

The majority of NCAs consider that the instruments making up the motor vehicle block 
exemption  rules  are  generally  coherent  and  that  there  are  no  inconsistencies  either 
between  them  or  with  other  legal  instruments.  Nevertheless,  some  NCAs  draw  the 
attention of the Commission to three potential inconsistencies.  

First,  certain  NCAs  highlight  what  they  see  as  a  discrepancy  in  the  market  share 
thresholds set out in paragraphs 56 and 12 of the SGL for the exemption of agreements 
for the distribution of new vehicles. While paragraph 12 states that the Commission did 
not  identify  any  significant  competition  shortcomings  in  the  new  motor  vehicle 
distribution  sector  which  would  require  the  application  of  a  market  share  threshold 
different from and stricter than those in the VBER (30%), recital 56 indicates that, when 
conducting  the  assessment  of  selective  distribution  systems  outside  of  the  block 
exemption  regulation,  quantitative  selective  distribution  of  vehicles  will  generally 
satisfy  the  conditions  laid  down  in  Article  101(3)  of  the  Treaty  if  the  parties’  market 
shares  do  not  exceed  40%.  In  the  NCAs  view,  this  implies  that  motor  vehicle 
distribution is treated differently to other sectors. 

Second,  on  access  to  technical  information,  some  NCAs  note  that  there  might  be  a 
discrepancy with the overall notion of bilateral  and unilateral behaviour. According to 

319   Article 4(a) VBER and paragraphs 48-49 and 223-229 VGL. 

139 

 
                                                           
paragraph 62 of the SGL, qualitative selective distribution agreements  concluded with 
authorised repairers and / or parts distributors may be caught by Article 101 (1) of the 
Treaty if, within the context of those agreements, one of the parties acts in a way that 
forecloses  independent  operators  from  the  market,  for  instance  by  failing  to  release 
technical repair and maintenance information to them. In this regard, NCAs express the 
view that although the application of Article 101 (1) of the Treaty requires an agreement 
or concerted practice, paragraph 62 of the SGL foresees the application of Article 101 
(1)  of  the  Treaty  when  only  one  of  the  parties  to  the  agreement  acts  in  a  way  that 
forecloses  independent  operators  from  the  market  which,  in  the  NCAs  view,  would 
usually qualify as unilateral behaviour falling under the abuse of dominance provisions.    

Thirdly,  NCAs  indicate  that  there  could  be  said  to  be  a  contradiction  concerning  the 
definition of the relevant market in the motor vehicle sector.  In the NCAs view, in its 
Notice  on  the  definition  of  relevant  market320,  the  Commission  focuses  on  the 
perspective of the direct customer to  analyse whether the respective  goods or services 
are substitutable to satisfy a particular demand: an approach also replicated in Article 3 
(1) VBER and Recital 7 of the VBER. However, NCAs highlight that when determining 
if a contract between an OEM and its authorised repairer is caught by Article 101 (1) of 
the  Treaty  or  whether  it  satisfies  the  conditions  of  Article  101  (3)  of  the  Treaty,  in 
paragraph 15 of the SGL321 the Commission seems to focus on the point of view of the 
end  consumer  (the  motorist)  instead  of  that  of  the  direct  contractual  partner:  the 
authorised repairer. 

Finally, NCAs stress that, when conducting its review, the Commission should carefully 
consider  any  upcoming  regulatory  measure  which  may  impose  obligations  on  OEMs 
concerning access to vehicle generated data (e.g., under the Digital Markets Act, Digital 
Services Act, or the type approval rules). 

320   Paragraphs 15-19 of the Commission Notice on the definition of relevant market for the purposes of Community 

competition law. OJ C 372, 9.12.1997. 

321   Paragraph 15 SGL: “[..] On the spare parts markets, parts bearing the motor vehicle manufacturer's brand face 
competition from those supplied by the original equipment suppliers (OES) and by other parties. This maintains 
price  pressure  on  those  markets,  which  in  turn  maintains  pressure  on  prices  on  the  repair  and  maintenance 
markets, since spare parts make up a large percentage of the cost of the average repair. Moreover, repair and 
maintenance as a whole represent a very high proportion of total consumer expenditure on motor vehicles, which 
itself accounts for a significant slice of the average consumer's budget.” 

140 

 
                                                           
 
Annex 4: Public enforcement of the Motor Vehicle Block 
Exemption Regime 

The  European  Commission  (“the  Commission”)  is  evaluating  the  functioning  of  the 
motor  vehicle  block  exemption  rules,  comprising  the  Motor  Vehicle  Block  Exemption 
Regulation  (EU)  No  461/20101  (“MVBER”),  the  application  of  the  General  Block 
Exemption Regulation (EU) No 330/2010 to the motor vehicle sector2 (“VBER”), along 
with  the  Supplementary  guidelines3  (“SGL”)  and  the  Guidelines  on  vertical  restraints4 
(“VGL”). 

In  this  context,  the  Commission  has  conducted  a  review  of  the  enforcement  and 
monitoring activities that have taken place at the European and the national level in the 
motor vehicles sector since 2010. 

This document summarizes the main findings of this exercise. Its three sections report on 
the  enforcement  and  monitoring  actions  of  the  Commission,  the  activity  of  national 
competition authorities (“NCAs”) and the Court of Justice respectively.  

1.  Enforcement and monitoring by the Commission  

1.1 

Enforcement  

Between  2010  and  2020,  the  Commission  has  adopted  eight  rejection  letters  under 
Article  7(1)  of  Regulation  773/2004,5  12  rejection  decisions  under  Article  7(2)  of 
Regulation  773/2004,  one  rejection  pursuant  to  Article  13  of  Regulation  1/20036  and 
Article  9  of  Regulation  773/2004,  and  one  rejection  pursuant  Article  13  of  Regulation 
1/2003  and  Article  7  (2)  of  Regulation  773/2004  relating  to  the  motor  vehicles  sector. 
Out  of  the  22  formal  complaints  received  by  the  Commission,  20  targeted  vehicle 
manufacturers or national importers, one concerned a parts supplier and one related to a 
company  active  in  the  energy  /  petrol  stations  sector.  Nine  of  these  formal  complaints 
concerned the distribution of new vehicles, nine the provision of repair and maintenance 

1   Commission Regulation (EU) No 461/2010 of 27 May 2010 on the application of Article 101(3) of the Treaty on 
the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor 
vehicle sector. OJ L 129, 28.5.2010. 

2   Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on 
the Functioning of the European Union to categories of  vertical  agreements and concerted practices.  OJ L 102, 
23.4.2010. 

3   Commission  notice  —  Supplementary  guidelines  on  vertical  restraints  in  agreements  for  the  sale  and  repair  of 

motor vehicles and for the distribution of spare parts for motor vehicles. OJ C 138, 28.5.2010. 

4   Guidelines on Vertical Restraints. OJ C 130, 19.5.2010. 
5   Commission  Regulation  (EC)  No  773/2004  of  7  April  2004  relating  to  the  conduct  of  proceedings  by  the 

Commission pursuant to Articles 81 and 82 of the EC Treaty. OJ L 123, 27.4.2004. 

6   Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid 

down in Articles 81 and 82 of the Treaty. OJ L 1, 4.1.2003. 

141 

 
 
 
                                                           
services, three the distribution of spare parts, and one concerned both the distribution of 
new  vehicles  and  the  provision  of  repair  and  maintenance  services.  Sixteen  of  the 
complaints  were  submitted  by  dealers  /  authorised  repairers,  one  by  a  vehicle 
manufacturer  /  national  importer,  one  by  a  parts  distributor,  one  by  an  independent 
repairer and three by other types of entities (a national association of dealers, a national 
association  of  small  and  medium  enterprises  active  in  the  motor  vehicle  sector  and 
another entity).  

Of the complaints concerned, 27%, purportedly inappropriate selection criteria combined 
with an alleged abuse of dominance, 23% related to an alleged abuse of dominance, 9% 
concerned  alleged  inappropriate  selection  criteria,  9%  related  to  possible  restrictions  in 
distribution agreements, 9% referred to suspected refusal to access authorised networks, 
9%  concerned  alleged  parallel  trade  restrictions,  4%  related  to  purported  abuse  of 
warranties, 5% were linked to possible restrictions on cross-supplies between authorised 
distributors and 5% related to other alleged restrictions.  

5% 

5% 

4% 

27% 

9% 

9% 

9% 

9% 

23% 

Inappropriate selection criteria
and abuse of dominance
Abuse of dominance

Inappropriate selection criteria

Restrictions in distribution
agreements
Refusal to access authorised
network
Parallel trade restrictions

Abuse of warranties

Other

Restrictions on cross-supplies
between authorised distributors

Figure 1: Main allegations raised in formal complaints filed with the Commission 

As for the reasons for rejection, the Commission rejected 19 complaints on the basis of 
lack of community interest, two complaints on grounds of lack of community interest and 
NCAs  dealing  or  having  dealt  with  the  case,  and  one  complaint  because  an  NCA  was 
already dealing or had dealt with the same case.  

Appeals before the General Court of the EU were filed against two of the Commission’s 
decisions.7 Sections 2.2 and 4 below include further details on these cases. 

7 See cases T-531/18 and T-743/20. 

142 

 
 
 
 
 
                                                           
1.2  Monitoring   

In addition to formal complaints, as part of its monitoring and enforcement activities in 
the  sector,  the  Commission  deals  with  informal  correspondence  /  submissions  from 
stakeholders.8  

Between  the  entry  into  force  of  the  current  motor  vehicle  block  exemption  regime  and 
October  2020,  the  Commission  dealt  with  around  600  of  such  informal  submissions 
relating to the motor vehicle sector. In a relatively small number of these cases, the initial 
informal correspondence evolved into a formal complaint.  

The  informal  correspondence  received  by  the  Commission  over  the  period  at  issue  has 
been very varied. Some items did not relate to the EU competition rules at all, while for 
some  others,  these  rules  only  had  an  incidental  bearing.  Many  correspondents  put 
questions to the Commission as to where particular information could be found, or as to 
the  relevance  of  the  rules  for  a  particular  situation.  In  other  instances,  competition 
concerns were briefly raised, but the requirements of “Form C” of Regulation 773/2004 
were not fulfilled, and/or little or no evidence was provided to support allegations.  

In  instances  where  it  appears  that  there  may  prima  facie  be  a  competition  issue,  but 
further  information  is  needed  or  the  practical  effect  appears  limited  in  scope,  the 
Commission  takes  a  pragmatic  approach.  In  some  cases,  this  may  involve  requesting 
more information or evidence from the correspondent, while in others, the Commission 
may also take direct informal contact with the target of the allegations, inviting them to 
take remedial action to deal with a dispute. 

Given  the  very  varied  nature  of  the  correspondence,  only  general  statistics  can  be 
provided. What follows excludes submissions that were deemed to be completely outside 
the  Directorate  General  (“DG”)  for  Competition’s  remit,  mainly  because  the  EU 
competition rules did not apply. 

As  for  the  outcome  of  the  correspondence  received,  with  respect  to  28%  thereof  the 
Commission  found  no  indications  of  any  infringement.  In  26%  of  submissions,  the 
Commission provided clarification or guidance. In 10% of instances, the correspondents 
provided information without requesting action from the Commission, while in 8% of the 
correspondence the Commission found that the information provided was insufficient to 
reach  any  conclusions.  In  a  further  8%  of  the  cases,  there  was  no  follow  up  by  the 
correspondent. In 7% of the submissions, the problem was addressed by informal means. 
In  6%  of  the  submissions,  the  matter  concerned  a  contractual  issue.  About  3%  of  the 
submissions were found to have no cross-border element, and 2% of the correspondence 

8  

Informal  submissions  (sometimes  referred  to  as  “market  information  letters”)  differ  from  formal  complaints  in 
that  they  do  not  contain  the  information  required  by  “Form  C”  annexed  to  Commission  Regulation  773/2004. 
Moreover,  in  many  cases,  they  do  not  allege  particular  breaches  of  the  EU  competition  rules,  but  rather  ask 
questions relating to the qualification of a particular set of circumstances. 

143 

 
 
 
 
 
 
                                                           
was  referred  or  re-allocated  to  other  DGs  of  the  Commission.  Finally,  1%  of  the 
submissions are still pending and a further 1% evolved into formal complaints. 

1% 

1% 

2% 

3% 

6% 

7% 

28% 

8% 

8% 

26% 

10% 

No infringement found

Clarifications given

Only for information; no action
requested

Insufficient information

No follow-up by submitter

Problem addressed

Contractual issue

No-cross border element

Referral / re-allocation to another DG

Pending as of 31 May 2020

Submission turned into a formal
complaint

Figure 2: Breakdown of submissions by outcome 

The  informal  submissions  that  turned  into  a  formal  complaint  are  briefly  described 
below. 

  First,  Case  AT.39804  (Volkswagen  Group  Italia  (Audi  I))  and  Case  AT.39836 
(Volkswagen Group Italia (Audi III)) concerned similar complaints. In particular, 
both  complainants  argued  that  Volkswagen  Group  Italy  was  engaging  in 
anticompetitive  behaviour  as  regards  the  provision  of  after-sales  services 
regarding  Audi  cars  in  Italy.  According  to  the  complainants,  the  target  had 
breached  Articles  101  and  102  of  the  Treaty  by  implementing  a  number  of 
practices to exclude small repairers from its authorised network. After assessing 
the  evidence  on  these  cases,  the  Commission  decided  not  to  carry  out  in-depth 
investigations  and  adopted  two  rejection  decisions  under  Article  7(2)  of 
Regulation 773/2004 based on lack of Union interest.  

  Second,  Case  AT.40037  concerned  a  complaint  from  a  company  in  the  Czech 
Republic - Carpenter s.r.o. - that had applied to become an authorised distributor 
of  Subaru  motor  vehicles  but  seen  its  application  rejected.  The  complainant 
argued  that  several  Subaru  entities  were  in  breach  of  Article  101  of  the  Treaty. 
The allegations of the complainant were that: (i) Subaru’s distribution agreements 
were prohibited under Article 101 of the Treaty;  (ii) several Subaru entities and 
importers  had  tried  to  prevent  Subaru  dealers  located  outside  of  the  Czech 
Republic  from  selling  Subaru  vehicles  in  the  Czech  Republic;  (iii)  Subaru 

144 

 
 
 
 
subsidiaries  had  been  coordinating  sales  prices  in  a  number  of  Member  States; 
(iv)  German  and  Czech  authorised  Subaru  distributors  had  refused  to  provide 
warranty  services  to  consumers  who  had  purchased  through  intermediaries;  and 
(v) the Czech Subaru subsidiary had failed to deliver spare parts for Subaru motor 
vehicles  and  to  disclose  technical  information.  As  regards  the  latter,  Carpenter 
also argued a breach Article 102 of the Treaty. The Commission dismissed part of 
the complaint pursuant to Article 13 of Regulation 1/2003 on the ground that the 
Czech competition authority had already dealt with the case. The remainder of the 
complaint  was  rejected  under  Article  7(2)  of  Regulation  1/2003  on  the  grounds 
that  there  was  a  low  likelihood  of  finding  an  infringement  and  that  further 
investigation  would  be  onerous  and  would  require  a  disproportionate  use  of 
resources. The Commission’s decision was appealed before the General Court of 
the EU (see section 4 below for further details). 

  Third, there were two other cases of informal submissions that turned into formal 
complaints, which have not been published. The first concerned a complaint from 
an industry association, which claimed that some of its members were not being 
granted  access  to  information  that  was  necessary  for  them  to  compete  on  the 
market  for an input necessary for certain  equipment.  In the complainants’ view, 
this  conduct  was  in  breach  of  Article  102  of  the  Treaty.  After  assessing  the 
evidence in this case, the Commission issued a rejection letter under Article 7(1) 
of  Regulation  1/2003  due  to  lack  of  Union  interest.  The  other  case  related  to 
allegations that a vehicle manufacturer did not allow its authorised dealers to sell 
certain  type  of  cars  to  a  particular  category  of  consumers.  This  complaint  was 
withdrawn following communications between the Commission and the target of 
the complaint aimed at resolving the issue. 

Regarding the type of correspondent behind the informal submissions, about 37% came 
from  consumers,  12%  from  independent  repairers,  10%  from  vehicle  dealers,  7%  from 
intermediaries,  3%  from  parts  distributors,  3%  from  vehicle  manufacturers  or  national 
importers,  3%  from  parts/  components  suppliers,  and  25%  from  other  types  of 
correspondents9. As to the subset of informal correspondence which was received from 
consumers, 
24% 
dealers/authorised repairers, 2% component/part suppliers, 1% independent repairer, 1% 
parts distributor, and 15% other. 

vehicle  manufacturers/national 

importers, 

involved 

57% 

In terms of substance, 58% of the informal correspondence involved allegations against 
or queries  concerning vehicle manufacturers /  national  importers, with  13% concerning 
dealers / authorised repairers, 4% component / part suppliers, 1% independent repairers, 
1% intermediaries and 23% involving others.  

9   The category “others” includes anonymous correspondents.   

145 

 
 
                                                           
The  largest  proportion  of  the  informal  submission  concerned  the  distribution  of  new 
motor vehicles, followed by the provision of repair and maintenance, and distribution of 
spare parts. Some queries related to more than one type of activity. 

1% 

14% 

3% 
3% 

13% 

36% 

30% 

Distribution of new motor
vehicles

Provision of repair &
maintenance activities

Distribution of spare parts

Provision of repair &
maintenance activities +
distribution of spare parts
Distribution of new motor
vehicles + provision of repair &
maintenance services
Distribution of new motor
vehicles and spare parts

All three activities

Figure 3: Breakdown of submissions by type of activity concerned 

The  most  common  restrictions  alleged  in  the  Commission’s  informal  correspondence 
concerned  parallel  trade  and  other  restrictions  on  sales  to  end  users,  followed  by 
aftermarket  restrictions  such  as  the  misuse  of  warranties  and  restrictions  on  access  to 
technical  information.  Allegations  of  restrictions  on  access  to  spare  parts  were  also 
prominent. 

Figure 4: Types of alleged restrictions 

Although certain submissions were not classifiable under the typical types of restrictions, 
some  of  them  presented  interesting  aspects.  For  example,  one  concerned  an  alleged 
imposition of a particular charger for certain electric vehicles. Another, involving the so-

146 

 
 
 
 
called  “repair  clause”,  was  reallocated  to  DG  GROW,  as  the  case  was  related  to  EU 
legislation on design protection of spare parts, for which DG GROW is competent. 

2.  Enforcement by national competition authorities  

The Commission asked NCAs in all 28 Member States10 and the Contracting Parties to 
the EEA Agreement about their enforcement experience with the application of the motor 
vehicle block exemption regime since 2010, and all provided answers.  

With  the  exception  of  three  Member  States  (i.e.,  Austria,  Ireland  and  Latvia)  and 
Norway, there are currently no national guidance papers concerning vertical restraints in 
the motor vehicle sector. In the case of Austria and Ireland, these guidelines are part of 
their general guidelines on vertical restraints.  

The  total  number  of  complaints  received  by  all  NCAs  was  142.  The  total  number  of 
complaints  received  by  individual  NCAs  ranges  from  0  to  30.  In  addition  to  these 
complaints, there were 25 ex officio procedures initiated by the NCAs.  

35

30

25

20

15

10

5

0

Ex officio

Complaint

Z
C

K
D

E
D

L
E

K
S

S
E

T
P

R
H

E
B

T
E

E
I

V
L

O
N

E
S

I

G F
B

L
P

Y
C

R
F

U
L

L
S

T
A

U I
T
H

T
L

T
M

L
N

O
R

K
U

Figure 4: Origin of cases related to vertical restraints in the motor vehicle sector (2010-2020) 

During  the  period  at  issue,  the  majority  of  cases  (more  than  90%)  were  closed  by  the 
NCAs, while 11 cases are still ongoing.  

The  most  active  category  of  complainants  were  independent  repairers  (32  complaints), 
followed  by  consumers  (30  complaints)  and  independent  dealers  of  new  vehicles  (22 
complaints).  By  contrast,  only  a  few  complaints  were  received  from  vehicle 
manufacturers,  online  vehicle  sales  platforms, 
insurance  companies,  authorised 
dealers/repairers, intermediaries and component/parts suppliers or distributors.  

10   The United Kingdom was consulted, as it was a Member State during the majority of the period of application of 

the motor vehicle block exemption rules. 

147 

 
 
                                                           
1% 

2% 

2% 

3% 

4% 

7% 

8% 

11% 

1% 

1% 

1% 

23% 

21% 

15% 

Independent repairer

Consumer

Independent dealer in new
vehicles
Authorised dealer in new
vehicles
Authorised repairer

National importer

Authorised dealer and
repairer
Component / part supplier

Part distributor

Part supplier and
distributor
Intermediary

Online vehicle sales
platform
Vehicle manufacturer

Insurance company

Figure 5: Type of complainants before NCAs 

As  for  the  target  of  the  complaints,  a  majority  of  complaints  concerned  activities  of 
national importers (62%), followed by those of vehicle manufactures (23%). A minority 
of  complaints  concerned  activities  of  authorised  repairers  (7%),  authorised  dealers  of 
new  vehicles  (4%),  component/part  suppliers  (2%),  insurance  companies  (1%)  and 
independent dealers of new vehicles (1%). 

The most frequent activity challenged by the complaints was the provision of repair and 
maintenance services, with a total of 65 complaints before the NCAs. The second most 
common  activity  concerned  by  the  complaints  was  distribution  of  new  motor  vehicles, 
with a total of 44 complaints before NCAs.  

11% 

3% 

4% 

8% 

9% 

26% 

39% 

Provision of repair and maintenance
services

Distribution of new motor vehicles

Provision of repair and maintenance
services and distribution of spare
parts
Distribution of spare parts

Distribution of new motor vehicles
and spare parts

Distribution of new motor vehicles
and provision of repair and
maintenance service
All three activities

Figure 6: Type of activity concerned by the complaints 

148 

 
 
 
In the period under analysis, the NCAs closed a total of 156 cases: 

  A  majority  of  these  cases  (97)  were  closed  administratively  without  formal 
decision, primarily due to absence of sufficient evidence or lack of priority. None 
of these cases were re-allocated to the Commission.  

  Three  cases  were  administratively  closed  by  providing  guidance  to  the 

 

 

 

complainants.  
In  33  cases,  the  NCAs  issued  rejection  decisions,  primarily  because  they  could 
not establish an infringement.   
In  19  cases,  the  NCAs  issued  commitment  decisions.  None  of  these  decisions 
imposed financial or other types of penalties on their addressees.  
In  six  cases,  the  NCAs  issued  prohibition  decisions.  All  of  these  decisions 
imposed either financial or other types of penalties on their addressees.  

  The  Belgian  NCA  was  the  only  competition  authority  that  adopted  an  interim 
measures decision in the motor vehicle sector in the period under analysis11 and a 
follow-up  decision  on  the  case  in  question.  The  case  concerned  a  national 
importer and a former authorised dealer, where the latter wanted to remain active 
as independent repairer.  

1% 

1% 

1% 

1% 

1% 

1% 

4% 

12% 

15% 

25% 

19% 

9% 

4% 

1% 

2% 

2% 

Administrative closure due to insufficient
evidence
Administrative closure due to lack of priority

Administrative closure due to no infringement
being established
Administrative closure due to problem being
addressed by target
Administrative closure due to parallel filing
with the Commission
Administrative closure through guidance

Administrative closure due to complaint being
withdrawn
Rejection decision due to no infringement
being established
Rejection decision due to insufficient evidence

Rejection decision due to lack of priority

Rejection decision due to lack of competence

Rejection decision due to res judicata

Rejection decision due to conduct being
exempted under the BER
Commitment decision (or equivalent)

Prohibition decision (or equivalent)

Follow-up on an interim measures decision

Figure 7: Types of closure 

11   Decision no. BMA-2014-V / M-14 of July 11, 2014. 

149 

 
 
                                                           
As  for  the  type  of  restrictions  identified  by  Member  States’  NCAs  in  their  decisions 
where  an  infringement  was  found,  the  most  common  of  these  was  abuse  of  warranties 
(representing almost 40% of all identified restrictions), followed by restrictions on access 
to spare parts / diagnostic tools, and pricing restrictions.   

Restrictions on access to spare parts / diagnostic tools

Abuse of warranties

Pricing restrictions

Inappropriate selection criteria

Restrictions on component / parts suppliers’ downstream sales 

Restrictions on access to RMI (including data)

Restrictions on cross-supplies between authorised distributors

Single branding

Restrictions on sales to end users

Parallel trade restrictions

0

2

4

6

8

10

12

14

16

18

Figure 8: Types of restrictions identified in infringement decisions 

With regard to the legal instruments used by Member States’ NCAs in their infringement 
decisions in this sector, the most common instrument was reported to be Article 101 of 
the Treaty,  followed by  national  legislation, the  SGL and the MVBER.  In a few cases, 
the NCAs also referred to the VBER and the VGL, as well as national guidance papers. 

Out  of  all  the  decisions  adopted  by  NCAs  concerning  motor  vehicles,  eight  were 
appealed in  court, with four being upheld in first instance and three pending before the 
first  instance  courts.  Two  decisions  were  further  appealed  on  second  instance  and  are 
currently pending. 

Regarding the legal instruments applied by national courts, NCAs reported that each of 
the  following  instruments  had  been  used  once  in  national  judgments:  the  MVBER, 
Article 101 of the Treaty, the SGL, national legislation and national guidance paper. 

3.  Court of Justice of the EU   

Since  2010  there  has  only  been  one  case  concerning  the  motor  vehicle  sector  which 
arrived  before  the  Court  of  Justice  of  the  EU,  namely,  the  preliminary  ruling  from  the 
French  Cour  de  Cassation  in  Case  C-158/11.12  The  latter  concerned  the  previous 
MVBER,13 in particular, whether the term “specified criteria” in Article 1(1)(f) of such 
Regulation had to be interpreted as requiring, in order to benefit from the exemption, that 
a quantitative selective distribution system is based on criteria which  are (i) objectively 

12   Case C-158/11 Auto 24 SARL v Jaguar Land Rover France SAS of 14 June 2012. 
13   Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to 

categories of vertical agreements and concerted practices in the motor vehicle sector. OJ L 203, 1.8.2002. 

150 

 
 
 
                                                           
justified;  and  (ii)  applied  in  a  uniform  and  non-differentiated  manner  in  respect  of  all 
applicants  for  authorisation.  The  answer  of  the  Court  was  that  the  term  “specified 
criteria” under the previous MVBER referred to criteria the precise content of which may 
be verified and that, in order to benefit from the exemption, it was not necessary for such 
a system to be based on criteria which are objectively justified and applied in a uniform 
and non-differentiated manner in respect of all candidates for the authorisation. 

In addition, there were two cases brought before the General Court of the EU against two 
Commission rejection decisions. 

The  first  appeal  concerned  the  Commission  decision  on  Case  AT.40037  Carpenter  / 
Subaru  (see  section  2.2  above  for  further  details).  In  this  case,  the  Commission  had 
dismissed part of the complaint pursuant to Article 13 of Regulation 1/2003 based on the 
fact that the Czech competition authority had already dealt with the case, and the rest of 
the complaint on the basis  of Article 7(2) of Regulation  1/2003  on the  grounds that (i) 
there  was  a  low  likelihood  of  finding  an  infringement;  and  (ii)  further  investigation 
would have been onerous and would have required a disproportionate use of resources. 
This  decision  was  appealed  by  the  complainant  before  the  General  Court  of  the  EU, 
giving  rise  to  Case  T-531/18.14  The  complainant  argued  that  the  Commission  decision 
was vitiated, on the one hand, by  an  error resulting from an incorrect  legal and  factual 
assessment and, on the other, by a procedural error due to a lack of appropriate reasoning 
in the decision. In its judgement, the General Court rejected the pleas of the plaintiff and 
upheld the Commission’s decision.  

The  second  appeal  concerned  Case  AT.40665  Toyota.  This  case  was  triggered  by  a 
complaint  filed  by  a  Polish  car  dealer  against  Toyota  Motor  Poland  with  regard  to  a 
refusal  to  access  the  authorised  network  of  the  latter.  The  Commission  rejected  this 
complaint  on  the  basis  of  Article  13  of  Regulation  1/2003  and  Article  9  of  Regulation 
774/2004  as  it  found  that  the  Polish  NCA  had  already  dealt  with  the  same  case.  The 
complainant  filed  an  appeal  against  the  Commission  decision  on  17  December  2020, 
which  gave  rise  to  Case  T-  743/20.  In  its  appeal,  the  complainant  argues  (i) 
misinterpretation  and  misapplication  of  Article  13(2)  of  Regulation  1/2003;  and  (ii) 
infringement of the right to good administration resulting from Article 41 of the Charter 
of Fundamental Rights of the European Union. This case is currently pending before the 
General Court of the EU. 

14   Case T-531/18 LL-Carpenter s. r. o. v Commission of 12 March 2020. 

151 

 
  
 
                                                           
Annex 5: Methods and analytical mode 

Evaluation 
criterion 

Evaluation question 

Objective 
pursued 

A.1  How have market conditions in 

A.1.1 

Distribution of new motor vehicles 

Evidence 

Type 
a  Objective market data 

Source 
Study  

the motor vehicle sector evolved 
since the rules took effect? 

b 

A.1.2 

Provision of repair and maintenance 
services 

Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

c 
a  Objective market data 

NCAs consultation  

Public consultation  

Study  

A  Effectiveness 

A.1.3 

Distribution of spare parts 

a  Objective market data 

Study  

b 

c 

Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

NCAs consultation  

Public consultation 

A.2 

To what extent have the general 
objectives of the rules been 
achieved?  
(What is the level of legal 
certainty that the MVBER 
regime has provided? Do the 
conditions currently defined in 
the MVBER regime meet the 
objective of only exempting those 
agreements for which it can be 

A.2.1 

A.2.2 

Legal certainty for 
companies' self-
assessment of 
compliance with 
Article 101 of the 
Treaty 
Identification of 
agreements whose 
benefits outweigh 
negative effects 

First specific 
objective 

Second specific 
objective 

152 

b 

c 

a 

b 

a 

b 

Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

NCAs consultation  

Public consultation  

Perceptions of stakeholders 

Public consultation 

Perceptions of competition law 
enforcers 

Own experience; 
NCAs consultation  

Perceptions of stakeholders 

Public consultation  

Perceptions of competition law 
enforcers 

Own experience; 
NCAs consultation  

 
 
 
assumed with sufficient degree of 
certainty that they generate 
efficiencies?)  

A.2.3 

A.2.4 

(minimisation of 
false positives and 
false negatives) 
Provision of a 
common framework 
for the consistent 
application of Article 
101 of the Treaty by 
NCAs and national 
courts (treated in the 
questionnaires under 
the EU added value 
criterion) 
Protecting 
competition in 
specific dimensions 
of the motor vehicle 
and aftermarkets 
sectors 

Third specific 
objective 

a 

b 

Perceptions of stakeholders 

Public consultation 

Perceptions of competition law 
enforcers 

Own experience; 
NCAs consultation  

Fourth specific objective  

A.2.4.1  Preventing 

foreclosure of 
competing vehicle 
manufacturers and 
safeguarding their 
access to the market 

First sub-part of 
the fourth 
specific 
objective 

a  Own analysis of the study 

Study  

b 

c 

results 
Perceptions of stakeholders 

Public consultation 

Perceptions of competition law 
enforcers 

Own experience; 
NCAs consultation  

A.2.4.2  Protecting 

competition between 
dealers of the same 
brand 

A.2.4.3  Preventing 

restrictions on 
parallel trade in 
motor vehicles 

A.2.4.4  Enabling independent 

repairers to compete 

Second sub-part 
of the fourth 
specific 
objective 

Third sub-part of 
the fourth 
specific 
objective 
Fourth sub-part 
of the fourth 

a  Own analysis of the study 

Study 

b 

c 

a 

b 

results 
Perceptions of stakeholders 

Public consultation  

Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

Own experience; 
NCAs consultation  
Public consultation  

Perceptions of competition law 
enforcers 

Own experience; 
NCAs consultation  

a  Own analysis of the study 

Study  

results 

153 

 
 
 
 
 
with the 
manufacturers' 
networks of 
authorised repairers 

specific 
objective 

A.2.4.5  Protecting 

competition between 
repairers of the same 
brand 

A.2.4.6  Preventing 

foreclosure of spare 
parts suppliers 

A.2.4.7  Preserving the 

deterrent effect of 
Article 101 

Fifth sub-part of 
the fourth 
specific 
objective 

Sixth sub-part of 
the  
fourthspecific 
objective 

Seventh subpart 
of the fourth 
specific policy 
objective 

B  Efficiency 

B.1  Are the incurred compliance costs reasonable and proportionate to the benefits that the 

rules bring? 

B.2  Are the incurred enforcement costs reasonable and proportionate to the benefits that the 

rules bring? 

b 

c 

Perceptions of stakeholders 

Public consultation  

Perceptions of competition law 
enforcers 

Own experience; 
NCAs consultation  

a  Own analysis of the study 

Study  

b 

c 

results 
Perceptions of stakeholders 

Perceptions of competition law 
enforcers 

a  Own analysis of the study 

results 
Perceptions of stakeholders 

Public consultation  

Own experience; 
NCAs consultation  
Study  

Public consultation  

Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

Own experience; 
NCAs consultation  
Public consultation  

Perceptions of competition law 
enforcers 

Own experience; 
NCAs consultation  

Perceptions of stakeholders 

Public consultation  

Perceptions of competition law 
enforcers 

NCAs consultation  

b 

c 

a 

b 

a 

b 

C  Relevance 

C.1  Do the objectives of the MVBER regime reflect current needs and are they appropriate 

a  Own analysis of the study 

Public consultation  

to meet those needs? 

D  Coherence 

D.1  Are the rules internally consistent? 

D.2  Are the rules coherent with other EU rules? 

E  EU Added 

E 

Have the rules provided EU added value in companies' self-assessment of compliance 

154 

results 
Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

Own experience; 
NCAs consultation  
Public consultation  

Perceptions of stakeholders 

Public consultation  

Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

Perceptions of competition law 
enforcers 
Perceptions of stakeholders 

NCAs consultation  

Public consultation  

NCAs consultation  

Public consultation 

b 

c 

a 

b 

a 

b 

a 

 
value 

with Article 101 of the Treaty? 

b 

Perceptions of competition law 
enforcers 

NCAs consultation 

155 

 
 
Annex 6: Overview of issues identified during the evaluation 
process1 

1.  SCOPE OF EXEMPTION  

1.1. Material scope 

The  evidence  gathered  during  the  evaluation  indicates  conflicting  views  with  regard  to 
the  material  scope  of  the  MVBER  regime,  which  is  limited  to  vertical  agreements 
relating to spare parts or repair and maintenance services for motor vehicles, which are 
defined as “self-propelled vehicles intended for use on public roads and having three or 
more road wheels”.2 

While  NCAs  overall  find  the  current  scope  appropriate,  most  respondents  to  the 
public consultation believed that the current material scope of the MVBER should 
be widened.   

The  majority  of  NCAs  indicate  that  there  does  not  seem  to  be  a  need  for  the  current 
material scope to be widened or narrowed. In contrast, a majority of respondents to the 
public  consultation  believe  that  the  current  definition  should  be  widened3  to  mainly 
include: two-wheeled vehicles (mainly motorbikes, but some also mention electric bikes 
or  electric  scooters)  and  vehicles  not  meant  for  roads  (such  as  agricultural  machinery, 
tractors  and  forestry  vehicles,  construction  vehicles).  According  to  certain  respondents, 
OEMs place significant pressure on authorised repairers to use only specific spare parts 
to the detriment of alternative spare parts suppliers with regard to these types of vehicle. 
The increasing importance of electric bikes and  scooters as new forms of mobility was 
underlined. In the view of some respondents, it was important to extend the scope of the 
MVBER to such vehicles in order to achieve coherence across types of vehicles. Finally, 
some respondents also mentioned that it would be advisable to make specific mention of 
electric vehicles.  

1.2. Market threshold 

1   This annex presents an overview of the main issues related to the design and performance of the MVBER regime 
which were raised by either a significant share of respondents the public consultation or by a considerable number 
of NCAs. 

2   Article 1(g) MVBER. 
3  

Primarily  associations  representing  parts  dealers,  parts  manufacturers,  vehicle  dealers  or  vehicle  importers,  but  
also companies (mainly parts dealers, but also other types of respondents such as repairers). 

156 

 
 
 
 
 
 
 
 
 
                                                           
The  likelihood  that  efficiency-enhancing  effects  will  outweigh  any  anti-competitive 
effects resulting from restrictions contained in vertical agreements and that such vertical 
agreements therefore comply with the conditions of Article 101(3) of the Treaty depends 
on the degree of market power held by the parties to the agreement. The MVBER regime 
therefore  relies  on  market  share  thresholds  for  both  the  supplier  and  the  buyer  to 
determine the scope of the block exemption. The block exemption will only apply if (i) 
the  market  share  held  by  the  supplier  does  not  exceed  30%  on  the  market  on  which  it 
sells the contract goods or services; and (ii) the market share held by the buyer does not 
exceed 30% on the market on which it purchases the contract goods or services.4 

Articles 7(a)-(c) VBER set out the rules for calculating the market share of the supplier 
and  the  buyer  in  order  to  determine  whether  the  VBER  applies  to  a  particular  vertical 
agreement.  Paragraphs  86-95  VGL  provide  further  guidance  on  the  definition  of  the 
relevant  market  and  the  calculation  of  the  market  shares  of  the  parties  to  a  vertical 
agreement. 

The evidence gathered during the evaluation indicates that, generally, stakeholders and 
NCAs  consider  the  provisions  concerning  the  market  share  thresholds  as 
appropriate.  

Nevertheless, some stakeholders and few NCAs express some issues with regard to the 
functioning of these provisions. Some stakeholders expressed the view that the threshold 
was  too  high.5  These  respondents  argued,  for  example,  that  the  threshold  could  be 
lowered  based  on  the  fact  that  very  few  players  actually  reach  30%  market  shares  and 
because of the alleged increase in direct sales by vehicle manufacturers. In contrast, some 
respondents  considered  the  threshold  to  be  too  low.6  These  respondents  argue,  for 
example, that the 30% threshold seems too low if certain potential market definitions are 
considered. In particular, they explained that if (i) the market for repair and maintenance 
(insofar  as  it  is  separate  from  the  market  for  the  sale  of  new  motor  vehicles)  were 
considered to be brand-specific; and (ii) the market shares of authorised repairers (even if 
legally they are separate companies) were attributed to vehicle manufacturers, or if these 
were used as a proxy for the position of vehicle manufacturers on the upstream market, 
this would imply that vehicle manufacturers’  agreements regarding  repair, maintenance 
and  spare  parts  could  not  benefit  from  the  exemption.  Finally,  some  other  respondents 
drew a distinction between the sale of new cars and the aftermarket sectors. This group 
mentioned  that  while,  in  their  view,  there  would  be  no  reason  to  depart  from  the  30% 
market threshold for the market of new cars, for the aftermarket, the current approach of 

4   Article 3 VBER. 
5  

Primarily, associations representing parts dealers and manufacturers, but also companies (mainly part dealers and 
repairers). 

6   Associations representing vehicle manufacturers, parts manufacturers, vehicle and parts dealers and importers, a 

vehicle importer/part dealer and a company active in the mineral-oil market.  

157 

 
 
 
 
                                                           
calculating market share for each brand separately means that, in practice, the threshold 
has little effect, since few agreements fall below it. 

Based  on  their  experience,  NCAs  indicated  that  the  30%  market  share  threshold  for 
agreements  to  benefit  from  the  motor  vehicle  block  exemption  is  generally  still 
appropriate. Nevertheless, a few NCAs pointed out that, as a result of the brand-specific 
nature of the markets for repair and maintenance services and for the distribution of spare 
parts, the practical applicability of the motor vehicle rules in these areas is limited, as the 
30% threshold is generally exceeded. Some NCAs deduced from this that the threshold 
may be too low, at least for the provision of repair and maintenance services and for the 
distribution  of  spare  parts.  On  the  other  hand,  following  the  same  logic,  some  NCAs 
considered that the current threshold is too high with regards to the market for new motor 
vehicles, as  for certain  countries and segments the market  is  very fragmented, meaning 
that all agreements fall below the market share threshold.  

1.3. Market definition  

With  regard  to  market  definition,  the  Commission  follows  the  approach  defined  in  its 
Notice on this subject7. It also takes into account previous decisions which have precisely 
defined  relevant  markets,  subject  to  an  assessment  of  the  changes  which  may  have 
occurred  since  the  decision  and  taking  into  account  the  level  of  trade  at  which  the 
decision has defined the market. The VGL also clarify specific issues which may arise in 
respect of market definition in the context of vertical agreements. 

The evaluation has pointed to some issues with regards to the market definition and 
the calculation of market shares in the motor vehicle sector.  

A  few  respondents  to  the  public  consultation  -  mainly  vehicle  manufacturers  -  indicate 
that if the vehicle manufacturers’ market shares were taken to encompass those of their 
authorised  repairers,  after-market  agreements  would  automatically  fall  outside  of  the 
block  exemption.  By  contrast,  a  company  active  in  the  oil/lubricants  sector  mentioned 
that, in order to better understand the impact of an agreement on the market, the analysis 
should  take  account  of  vehicle  manufacturer’s  market  shares  for  both  car  sales  and 
servicing. 

Some NCAs considered that certain markets for repair and maintenance services and for 
the  distribution  of  spare  parts  might  not  be  brand-specific.  In  this  regard,  these  NCAs 
suggested  that  there  might  be  a  distinction  between  "complex  repairs",  for  which  there 
are  no  /  few  alternative  service  providers,  and  "simpler  repairs",  for  which  there  are 
effective alternatives. In their view, while in the first example the market could be brand 
specific, it would not be so in the second example. Further to the above, some NCAs also 

7   Commission Notice on the definition of relevant  market for the purposes of Community competition law. OJ C 

372, 9.12.1997, p. 5–13. 

158 

 
 
 
 
 
 
 
                                                           
suggested that, from the point of view of the repairer, the offers of vehicle manufacturer / 
importers,  parts  suppliers  and  other  independent  repair  chains  may  be  regarded  as 
substitutable. Therefore, in these NCAs’ view, the market may not be brand-specific, as 
access  to  the  brand  of  a  particular  vehicle  manufacturer  /  importer  may  not  be 
indispensable for a repairer to operate on the relevant market.  

Further to the above, a few NCAs question whether the markets for the sale of new motor 
vehicles and for aftersales services, which have hitherto been considered to be separate, 
may  not  be  tipping  towards  an  integrated  multi-brand  “system  market”.8  Finally,  some 
NCAs highlight their view that guarantee services and services provided during vehicle 
recalls should be excluded when calculating the market share of the authorised networks. 
In  the  view  of  these  NCAs,  the  inclusion  of  such  services  may  artificially  inflate  the 
perceived market shares of authorised repairers vis-à-vis their independent competitors. 

1.4 Potential  additional  elements  on  which  the  exemption  should  be  made 

conditional  

The evaluation has shown that some respondents are of the view that there could be 
other elements upon which the exemption could be made conditional. Although a 
few  NCAs  proposed  reflecting  on  potential  additional  conditions,  overall,  they 
opined  that  there  should  not  be  other  elements  beside  the  current  threshold  criterion 
upon which the exemption should be made conditional. 

Generally, respondents9 pointed to some elements that they believed could be added so 
as  to  narrow  the  exemption.  In  this  regard,  a  number  of  parts  dealers,  parts 
manufacturers and repairers referred to the need to make access to technical information 
a condition to benefit from the exemption or, as an alternative, to recognize the failure 
to provide such access as an infringement of Article 101(1) of the Treaty. Another point 
raised by these stakeholders was that the misuse of warranties should be deemed to be 
an  infringement  of  Article  101  (1)  of  the  Treaty  or,  at  least,  result  in  the  loss  of  the 
benefit of the exemption.  A few parts manufacturers  and parts dealers argued that the 
absence  of  restrictions  on  dealers’  and  end  users’  freedom  of  choice  should  be  a 
condition  for  the  exemption  to  apply.  Some  dealers  and  repairers  also  suggested  that 
direct  sales  by  vehicle  manufacturers  should  be  capped  at  20%  of  the  overall  sales 
volumes of each manufacturer. 

8  

Footnote 26 of the SGL states that “In some circumstances, a system market which includes motor vehicles and 
spare parts together may be defined, taking into account, inter alia, the life-time of the motor vehicle as well as 
the preferences and buying behaviour of the users. [..] One important factor is whether a significant proportion of 
buyers make their choice taking into account the lifetime costs of the motor vehicle or not. [..] Another relevant 
factor is the existence and relative position of part suppliers, repairers and/or parts distributors operating in the 
aftermarket independently from motor vehicle manufacturers. [..].” 

9   Vehicle manufacturers’ associations argued that adding more conditions would create legal certainty, and a couple 
of insurance companies and a few other respondents said no other elements should be added as conditions to the 
exemption. 

159 

 
 
 
 
 
 
                                                           
An association in the vehicle leasing / rental sector argued that the “end user” status of 
leasing  companies  should  be  mentioned  explicitly  in  the  VBER  and  MVBER,  as 
currently  it  is  only  found  in  paragraph  51  SGL.  In  this  regard,  the  association  argued 
that the exemption should be made conditional on (i) OEMs not discriminating between 
end  users;  (ii)  OEMs  not  applying  registration  and  use  requirements;  (iii)  OEMs  not 
requiring  retention  periods  for  vehicles;  and  (iv)  purchasers  of  vehicles  not  being 
obliged  by  OEMs  to  provide  the  name  of  the  end  customer.  Finally,  a  dealer/repairer 
argued  that  the  exemption  for  the  sale  of  new  cars  should  be  conditional  on  the 
admittance  to  the  authorised  network  of  all  repairers  that  meet  the  vehicle 
manufacturer’s selection criteria. 

The majority of NCAs did not consider that there should be other elements beside the 
current  threshold  criterion  upon  which  the  exemption  should  be  made  conditional. 
However, some NCAs proposed reflecting on certain elements, such as (i) the degree to 
which dealers / service partners within an authorised network are actually able to act as 
independent  market  participants;  (ii)  the  vehicle  manufacturer’s  ability  to  restrict  the 
number of authorised dealers /  repairers;  and  (iii) whether  access  to  vehicle-generated 
data should be set as a further condition for exemption.  

1.5 Hardcore restrictions 

Article 4 VBER and Article 5 MVBER contain a closed list of restrictions applicable to 
vertical  agreements  in  the  motor  vehicle  sector  which  are  likely  to  restrict  competition 
and  harm  consumers,  or  which  are  not  indispensable  to  the  attainment  of  efficiency-
enhancing effects. These restrictions are also known as “hardcore restrictions”. Vertical 
agreements in the motor vehicle sector containing such severe restrictions of competition 
are excluded from the benefit of the block exemption, irrespective of the market share of 
the parties to the agreement. 

Paragraph  47  VGL  and  paragraph  17  SGL  set  out  a  double  presumption  for  the 
individual assessment under Article 101 of the Treaty of vertical agreements in the motor 
vehicle  sector  that  include  one  or  more  hardcore  restrictions.  First,  there  is  a  positive 
presumption that the agreement falls within Article 101(1) of the Treaty. Second, there is 
a  negative  presumption,  in  that  the  agreement  is  unlikely  to  fulfil  the  conditions  of 
Article  101(3)  of  the  Treaty.  The  latter  presumption  is  rebuttable,  meaning  that  it  is 
without  prejudice  to  the  possibility  of  the  parties  to  demonstrate  the  pro-competitive 
effects  of  a  particular  hardcore  restriction.  In  addition,  paragraphs  48-59  VGL  and 
paragraphs  17-24  SGL  provide  guidance  on  the  interpretation  of  the  list  of  hardcore 
restrictions set out in Article 4 VBER and Article 5 MVBER respectively. 

1.6 Appropriateness of current list of hardcore restrictions 

In  general,  the  evaluation  has  not  identified  any  specific  issues  with  regard  to 
hardcore restrictions. The majority of respondents to the public consultation indicated 

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that they had not encountered other types of vertical restrictions, beyond those currently 
included in Article 4 VBER and Article 5 MVBER, which should be considered severe 
restrictions of competition.  

Nevertheless, several respondents10 and a few NCAs reported encountering restrictions 
that they believed should be qualified  as hardcore. According to  these respondents,  the 
most  recurrent  ones  were:  (i)  restrictions  on  access  to  technical  information  and  in-
vehicle  data  for  aftermarket  operators;  (ii)  direct  or  indirect  quantitative  criteria  for 
accessing authorised networks; (iii) requiring the use of vehicle manufacturers’ brands of 
spare  parts  in  respect  of  replacements  not  covered  by  the  terms  of  the  warranty;  (iv) 
bundling  sales  and  aftersales  markets,  for  example,  by  offering  inclusive  maintenance 
plans  by  default,  which  allegedly  tie  the  sale  of  new  cars  to  the  use  of  specific 
aftermarket providers, or by including both sales and aftersales functions within the same 
contracts,  which  is  then  terminated;  (v)  refusing  to  license  certain  rights  necessary  to 
allow  suppliers  to  offer  spare  parts  to  the  independent  channel;  (vi)  restrictions  on  the 
sale  of  brands  from  different  suppliers;  and  (vii)  restrictions  that,  prior  to  2010,  were 
included in Article 4(2) and Article 4(1)(k) of Regulation 1400/2002.  

Based on their enforcement experience, a few NCAs also point to refusals by OEMs to 
give  independent  repairers  access  to  technical  information  as  a  potential  additional 
hardcore  clause  to  be  considered.  However,  NCAs  acknowledge  that  in  practice  the 
inclusion  of  such  a  clause  may  not  have  real  effects,  since  for  passenger  cars  at  least, 
most repair agreements  may not  benefit from  block exemption in  any event,  due to  the 
market  shares  of  the  members  of  the  authorised  networks.  Nevertheless,  these  NCAs 
consider  that  listing  OEMs’  refusal  to  give  independent  repairers  access  to  technical 
information as a hardcore restriction may still have a signaling effect on the market for 
provision of repair and maintenance services.  

1.7 Specific comments on particular hardcore restrictions 

a.  Resale price maintenance 

Resale  price  maintenance  is  considered  a  severe  restriction  of  competition11  and  is 
therefore  qualified  as  a  hardcore  restriction  pursuant  to  Article  4  VBER.  More 
specifically, Article 4(a) VBER provides that vertical agreements having as their object 
the  restriction  of  the  buyer’s  ability  to  determine  its  sales  price  (so-called  resale  price 
maintenance  or  "RPM")  are  excluded  from  the  benefit  of  the  block  exemption 
irrespective  of  the  market  share  of  the  parties  to  the  agreement.  Article  4(a)  VBER 
clarifies, however, that the supplier is allowed to impose a maximum or recommended 
sales  price,  provided  that  it  does  not  amount  to  a  fixed  or  minimum  sales  price  as  a 

10   Although  the  profile  of  respondents  replying  in  this  sense  is  very  diverse,  none  of  the  vehicle  manufacturers’ 

associations participating in the consultation replied affirmatively to this question.  

11   Recital 10 VBER. 

161 

 
 
 
 
 
 
                                                           
result  of  pressure  from  or  incentives  offered  by  any  of  the  parties  to  the  agreement. 
Paragraphs 48-49 and 223-229 VGL provide further guidance on this matter. 

Overall,  respondents  and  NCAs  consider  that  the  current  provisions  on  resale 
price maintenance have provided a sufficient degree of legal certainty. NCAs report 
having encountered pricing restrictions in about 9% of their infringement decisions.  

Nevertheless, the evaluation pointed to some issues with regard to the functioning of 
the provisions on RPM. 

First,  in  line with  their contributions  to  the VBER  consultation,  some NCAs note that 
the VBER and the VGL do not provide sufficient legal certainty as to whether certain 
“grey areas” constitute RPM. In particular, they point to a lack of clarity as regards the 
circumstances in which recommended resale prices amount to RPM and whether certain 
practices  restricting  the  ability  of  buyers  to  determine  their  selling  price  should  be 
considered  as  RPM  (e.g.,  suppliers  setting  indicative  margin  based  on  recommended 
sales price, and then pushing the actual resale price down by forcing the distributors to 
pass on / grant extra discounts). In addition, NCAs indicate that the distinction between 
clear-cut  RPM and so-called “hub & spoke” scenarios is  currently not  reflected in  the 
VBER and the VGL. NCAs also indicate that difficulties arise when it comes to prove 
the  acceptance  or  the  implementation  of  RPM  practices  by  retailers  when  there  is  no 
explicit RPM contractual provision. 

Second,  a  minority  of  respondents  to  the  public  consultation  -  mainly  vehicle 
manufacturers  -  considered  that  some  of  the  restrictions  that  are  currently  listed  as 
hardcore should not be considered as such. In particular, the main concern was expressed 
with regard to RPM. According to some of these respondents, although RPM is currently 
permitted when new products are launched, companies applying RPM in this manner run 
the risk of losing the exemption for their entire agreement if the Commission finds that 
on  the  facts,  the  RPM  in  question  is  caught  by  the  hardcore  provision.  This  allegedly 
creates a disincentive for vehicle manufacturers to use RPM in these cases even though it 
may  lead  to  efficiencies.  This  being  said,  these  respondents  pointed  out  that,  since  the 
same should be true in other sectors, the matter would therefore best be addressed in the 
review  of  the  VBER.  Moreover,  only  14%  of  respondents  to  the  public  consultation 
report  having  encountered  this  type  of  restriction  in  their  agreements  but  none  of  them 
reported ending up in court. 

b.  Restriction of the buyer's ability to sell components 

Article  4(b)  VBER  provides  that  vertical  agreements  that  have  as  their  object  the 
restriction  of  the  territory  into  which  or  of  the  customers  to  whom  the  buyer  or  the 
buyer's customers may sell the contract goods or services are excluded from the benefit 
of the block exemption irrespective of the market share of the parties to the agreement. 
Paragraph  50  VGL  explains  that  this  provision  aims  at  preventing  market  partitioning 

162 

 
 
 
 
 
 
 
by territory or by customer group and provides examples of direct and indirect measures 
qualifying as territorial or customer restriction pursuant to Article 4(b) VBER.  

The general rule laid down in Article 4(b) VBER includes four specific exceptions. One 
of these exceptions is Article 4(b)(iv) VBER, which allows a supplier to restrict a buyer 
of components or any intermediate goods, to whom those components are supplied for 
the  purpose  of  incorporation  (e.g.,  for  use  as  an  input  to  produce  other  goods),  from 
reselling  them  to  competitors  of  the  supplier.  Paragraph  55  VGL  further  clarifies  that 
the  term  "component"  includes  any  intermediate  goods  and  the  term  "incorporation" 
refers to the use of any input to produce goods.  

Overall,  respondents  and  NCAs  consider  that  these  provisions  have  provided  a 
sufficient  degree  of  legal  certainty.  In  their  enforcement  activities,  NCAs  report 
having  encountered  restrictions  on  component  /  parts  suppliers’  downstream  sales  in 
about  7%  of  their  infringement  decisions.  This  being  said,  some  NCAs  suggest 
clarifying  that  Article  4(b)(iv)  VBER  does  not  apply  to  spare  parts  and  other 
components  which  are  supplied  to  a  vehicle  manufacturer  for  resale  in  their  supplied 
state, but only to components which are to be incorporated in other products. 

c.  Restriction of authorised dealers’ ability to sell motor vehicles or spare parts to 

other dealers within the same distribution system (cross-supplies) 

Article  4(d)  VBER  removes  the  benefit  of  the  block  exemption  for  those  agreements 
which  directly  or  indirectly  restrict  cross-supplies  between  distributors  within  a 
selective distribution system, including between distributors operating at different level 
of trade. Paragraph 58 VGL clarifies that selective distribution cannot be combined with 
vertical  restraints  aimed  at  forcing  distributors  to  purchase  the  contract  products 
exclusively from a given source. It also adds that within a selective distribution network 
no  restrictions  can  be  imposed  on  appointed  wholesalers  as  regards  their  sales  of  the 
product to appointed retailers. 

Overall,  respondents  and  NCAs  consider  that  these  provisions  have  provided  a 
sufficient  degree  of  legal  certainty.  This  being  said,  without  providing  further 
explanations  on  their  position,  a  non-negligible  share  of  respondents  to  the  public 
consultation  indicated  that  the  provisions  in  question  provided  little  or  very  little  legal 
certainty. In addition, only a small minority of respondents (less than 4%) indicated that 
they  had  encountered  this  type  of  restriction  in  their  agreements.  In  their  enforcement 
activities,  NCAs  reported  having  encountered  restrictions  on  cross-supplies  between 
authorised distributors in about 7% of their infringement decisions. 

d.  Restriction of original equipment suppliers’ ability to sell spare parts to end users 

or repairers 

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Article 4(e) VBER is an aftermarket-related hardcore restriction for practices preventing 
or restricting end users, independent repairers and service providers from obtaining spare 
parts directly from the manufacturer of these spare parts.  

The evaluation has shown that while the majority of NCAs consider that these provisions 
have provided legal certainty, several respondents12 to the public consultation would 
like  to  see  further  clarification.  The  disparity  between  the  reported  frequency  of  this 
type of restriction is notable in this regard: NCAs report having encountered restrictions 
on sales to end users in about 2% of their decisions while 40% of respondents reported to 
have encountered this restriction in their agreements. 

According  to  some  of  those  respondents  that  consider  that  the  provisions  on  this 
restriction provide little or very little legal certainty, technical barriers, such the coding of 
spare  parts  and  the  requirement  for  software  activation  of  replacement  parts  with  what 
they describe as OEMs’ proprietary codes, limit Tier1 suppliers’ ability to sell spare parts 
to  end  users/repairers/distributors.  In  the  view  of  these  respondents,  this  effectively 
blocks  the  implementation  of  Article  4(e)  VBER  and  paragraph  59  of  the  VGL.  The 
respondents also alleged that spare parts manufacturers often reserve their production for 
vehicle manufacturers and their authorised dealers, thereby resulting in a shortage for the 
aftermarket  (e.g.,  as  regards  vehicle  glass),  limiting  choice  and  potentially  increasing 
costs for consumers. 

e.  Restriction  on  the  ability  of  suppliers  of  parts  /  tools  /  equipment  to  sell  their 

products to authorised / independent repairers / distributors or end users  

Article 5(b) MVBER concerns any direct or indirect restriction agreed between a supplier 
of spare parts, repair tools or diagnostic or other equipment and a manufacturer of motor 
vehicles,  which  limits  the  supplier's  ability  to  sell  these  goods  to  authorised  and  /  or 
independent distributors and repairers. Paragraph 23 SGL refers to the so-called ‘tooling 
arrangements’  between  component  suppliers  and  motor  vehicle  manufacturers  are  one 
example of possible indirect restrictions of this type.  

The  majority  of  NCAs  consider  that  these  provisions  have  provided  a  sufficient 
degree  of  legal  certainty.  Although  a  significant  share  of  respondents  to  the  public 
consultation  consider  that  these  provision  have  provided  sufficient  legal  certainty,  a 
larger  share  of  respondents  believe  that  they  provide  little  certainty.  However,  the 
latter do not include explanations on their position.  

f.  Restrictions on component / part suppliers’ ability to place their trademark / logo 

on the components / parts supplied 

12   Although a significant share of respondents considered that these provisions provide sufficient legal certainty, a 

slightly larger share pointed out that they provide little or very little legal certainty. 

164 

 
 
 
 
 
 
 
 
                                                           
Article 5(c) MVBER provides that the exemption will not  apply to  vertical  agreements 
which,  directly  or  indirectly,  have  as  their  object  the  restriction,  agreed  between  a 
manufacturer of motor vehicles which uses components for the initial assembly of motor 
vehicles and the supplier of such components, of the supplier’s ability to place its trade 
mark or logo effectively and in an easily visible manner on the components supplied or 
on spare parts. 

Paragraph  24  SGL  adds  that  to  improve  consumer  choice,  repairers  and  consumers 
should  be  able  to  identify  which  spare  parts  from  alternative  suppliers  match  a  given 
motor  vehicle,  other  than  those  bearing  the  car  manufacturer's  brand.  Putting  the  trade 
mark  or  logo  on  the  components  and  on  spare  parts  facilitates  the  identification  of 
compatible replacement parts which can be obtained from original equipment suppliers. 
By not allowing this, motor vehicle manufacturers could restrict the marketing of original 
equipment suppliers’ parts and limit consumer choice in a manner that runs counter to the 
provisions of Article 101 of the Treaty. 

The  evaluation  suggests  that  overall,  stakeholders  and  NCAs  consider  that  these 
provisions provide a sufficient level of legal certainty. Only 22% of the respondents to 
the public consultation reported having found this type of restriction in their agreements. 
In  addition,  only  one  NCA  suggests  that  the  hardcore  clause  listed  in  Article  5(c) 
MVBER may be redundant. In this regard, some NCAs suggest that in their experience 
the true issue relates more to the ability of the supplier to erase the brand of the motor 
vehicle manufacturer rather than its ability to place its own trademark. 

1.8 Excluded restrictions 

Article 5 VBER contains a closed list of vertical restrictions that are excluded from the 
benefit of the block exemption even though the parties to the vertical agreement do not 
exceed  the  market  share  thresholds  set  out  in  the  VBER.  These  restrictions  are  single-
branding  /  non-compete  obligations  lasting  more  than  five  years  (Articles  5(1)(a)  and 
5(2) VBER) and post-term non-compete obligations (5(1)(b) and 5(3) VBER). 

Unlike  for  Article  4  VBER  and  5  MVBER,  which  exclude  the  entire  agreement 
containing  a  hardcore  restriction  from  the  benefit  of  the  block  exemption,  if  a  vertical 
agreement  contains  one  of  the  excluded  restrictions  listed  in  Article  5  VBER,  the 
remainder  of  the  agreement  continues  to  benefit  from  the  block  exemption  if  it  is 
severable from the excluded restriction. Paragraphs 65-69 VGL provide general guidance 
on the interpretation of the list of excluded restrictions set out in Article 5 VBER, while 
paragraphs  26-41  SGL  provide  further  general  guidance  for  the  assessment  of  single-
branding obligations in the motor vehicle sector.  

Evidence  gathered  during  the  evaluation  suggests  that  respondents  to  the  public 
consultation  and  NCAs  generally  see  the  current  list  of  excluded  restrictions  as 
appropriate. Overall, NCAs and respondents did not indicate any vertical restrictions in 

165 

 
 
 
 
 
 
 
the motor vehicle sector that the VBER / MVBER listed as excluded but which, in their 
view, should not be considered as such. One NCA nevertheless wished to see included as 
an  excluded  restriction  the  alleged  obligation  imposed  on  dealers  /  service  partners  to 
transfer business information to vehicle manufacturers. 

As  to  the  prevalence  of  excluded  restrictions,  with  regard  to  post-term  non-compete 
obligations,  only  one  respondent  reported  having  encountered  this  restriction  in  its 
agreements. In their enforcement activities, NCAs report having encountered restrictions 
on sales to end users in about 5% of their infringement decisions. 

1.9 Indirect means of achieving anti-competitive results 

Anti-competitive results may also be achieved through types of behaviour not explicitly 
listed in  the current  MVBER  regime.  In this regard,  a majority of respondents to the 
public consultation and some NCAs reported having encountered in their agreements 
and  enforcement  activities,  respectively,  conducts  which  could  serve  as  an  indirect 
means of achieving anti-competitive results.  

First,  some  NCAs  described  a  set  of  conducts  in  respect  of  the  relationship  between 
OEMs  and  the  members  of  their  authorised  networks  that  could  potentially  be 
anticompetitive.  In  particular,  NCAs  indicated  the  following:  (i)  setting  qualitative 
standards that might raise / unify costs, thereby increasing dealers’ economic dependence 
on  a  particular  supplier;  (ii)  pushing  authorised  distributors  to  merge  might  increase 
market  concentration  at  dealer  level;  (iii)  imposing  commercial  /  pricing  policies  on 
dealers  might  indicate  an  imbalance  in  rights  and  obligations  between  the  parties;  and 
(iv)  setting  arbitrary  limits  on  the  number  of  dealers  might  unjustifiably  exclude  some 
from the distribution networks.  

Some  NCAs  also  mentioned  that  fixing  remuneration  systems  /  sales  campaigns  could 
have steering effects on dealers’ conduct as well as unifying price effects. In this sense, 
decreasing  basic  discounts  or  increasing  promotional  campaigns  was  alleged  by  some 
respondents  to  the  public  consultation  to  amount  to  indirect  RPM.  In  relation  to  this, 
some  respondents  also  referred 
the  alleged  anticompetitive  application  of 
bonus/rebates schemes and pricing/commercial terms, in a way that leads to the exclusion 
of  competitors  in  the  aftermarket,  for  example,  when  discounts  are  being  refused  to 
leasing companies if they offer vehicles for private lease. This is alleged to result in input 
foreclosure and limit competition on the private lease market.  

to 

Another  alleged  indirect  means  of  achieving  anticompetitive  results  identified  by  a 
number  of  respondents,  mainly  dealers,  concerned  the  increase  of  direct  (including 
online)  sales  by  vehicle  manufacturers.  According  to  these  respondents,  such  sales  put 
authorised dealers at a competitive disadvantage, as they are not able to offer competitive 
prices to consumers. In addition, the fee paid to dealers for delivering and preparing a car 

166 

 
 
 
 
 
 
 
that has been purchased directly from the vehicle manufacturer is allegedly too small to 
make the dealers’ business profitable. 

Secondly, some NCAs referred to agreements between vehicle manufacturers / importers 
/  authorised  repairers  and  insurance  companies  to  allegedly  direct  customers  to 
authorised  repairers  to  the  detriment  of  independent  repairers.  These  NCAs  expressed 
their concern that such agreements might hamper market access for independent repairers 
and  serve  as  an  indirect  means  to  stimulate  the  use  of  spare  parts  sourced  from  the 
vehicle  manufacturers.  NCAs  also  reported  allegations  that  importers  /  vehicle 
manufacturers  /  dealers  have  dissuaded  customers  from  using  independent  repairers  to 
repair  their  vehicles  by  stating  that  the  warranty  would  be  voided  if  maintenance  and 
repairs  were  carried  out  by  a  non-authorised  repairer.  Similar  allegations  concerning 
misuse  of  warranties  were  also  flagged  by  some  respondents.  For  a  number  of 
respondents,  another  alleged  indirect  means  used  to  the  detriment  of  independent 
repairers  and  other  independent  operators  concerned  restrictions  on  access  to  technical 
information  and  in-vehicle  data.  It  was  argued  that  such  restrictions  could  result  in  an 
inability to perform repairs/maintenance, inaccurate/inefficient repairs, loss of trust in the 
independent data publishers that provide access to that information and, allegedly, even 
safety  risks  for  drivers.  In  this  regard,  some  respondents  also  referred  to  the  use  of 
applications  installed  in  cars  to  direct  consumers  to  authorised  repairers,  rather  than 
independent  repairers,  in  case  of  breakdown  or  necessary  maintenance,  and  to  alleged 
bundling of captive and non-captive parts in sales to independent repairers. 

Thirdly,  some  NCAs  reported  that  consumers  have  no  visibility  as  to  the  supplier’s 
recommended  prices  for  repair  and  maintenance  services  and  that  authorised  repairers 
seem to consistently apply the recommended price. In these NCAs’ view, this may lead 
to higher prices for consumers and potentially to price coordination.  

Fourthly,  some  NCAs 
instances  where  vehicle 
reported  having  encountered 
manufacturers  /  importers  allegedly  withheld  a  code  necessary  for  the  installation  of  a 
third-party  tool.  According  to  the  NCAs,  this  could  significantly  reduce  the  ability  of 
such  tool  suppliers  to  offer  their  services.  In  a  similar  vein,  some  respondents  to  the 
public  consultation  alleged  that  OES  are  sometimes  required  to  obtain  vehicle 
manufacturers’  consent  before  using  tooling  paid  by  the  vehicle  manufacturer  to  make 
parts for direct  aftermarket  supply, such consent being usually subject  to a payment on 
the part of the OES for each part produced. 

Fifthly, some respondents to the public consultation alleged that certain practices such as 
the misuse of warranties and the imposition of obligations to register and use vehicles in 
the country of purchase, amounted to anti-competitive restrictions on parallel trade. 

Finally,  some  respondents  claimed  to  have  encountered  refusals  on  the  part  of  vehicle 
manufacturers to appoint candidates as authorised repairers, which could allegedly result 
in a decline in intra-brand competition.  

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2  DEFINITIONS  

2.1 Vertical agreements 

Article 1(1)(a) and Article 1(1)(a) VBER  define “vertical  agreement” as an "agreement 
or  concerted  practice  entered  into  between  two  or  more  undertakings  each  of  which 
operates, for the purposes of the agreement or the concerted practice, at a different level 
of  the  production  or  distribution  chain,  and  relating  to  the  conditions  under  which  the 
parties may purchase, sell or resell certain goods or services".  

Paragraphs 25-26 VGL specify the four main elements to this definition. First, the VBER 
applies  to  agreements  and  concerted  practices,  but  not  to  unilateral  conduct  by 
undertakings.  However,  in  the  absence  of  an  explicit  agreement  expressing  the 
concurrence of wills between the parties to the agreement, a unilateral policy of one party 
can  constitute  a  tacit  agreement  if  it  receives  the  (explicit  or  tacit)  acquiescence  of  the 
other party. Second, the VBER covers agreements and concerted practices between two 
or  more  undertakings,  but  not  with  final  customers  not  operating  as  an  undertaking. 
Third, the undertakings concerned should operate, for the purposes of the agreement, at a 
different level of the production or distribution chain (e.g., at manufacturer, wholesale or 
retail  level),  while not  excluding the possibility  of being active at  more  than one level. 
Fourth, the VBER covers purchase and distribution agreements concerning the conditions 
for the purchase, sale or resale of the goods or services supplied and/or the conditions for 
the  sale  by  the  buyer  of  the  goods  or  services  that  incorporate  these  goods  or  services. 
This  means  that  vertical  agreements  relating  to  all  final  and  intermediate  goods  and 
services are covered by the VBER. 

The  evaluation  has  shown  that  overall,  and  taken  together,  respondents  and  NCAs 
consider that these provisions are well-worded, providing a sufficient level of legal 
certainty. However, a non-negligible share of respondents indicate the opposite: that the 
provisions have provided little legal certainty. In this regard, some of these respondents 
pointed out that, in their view, (i) references to online and direct sales are missing; and 
that  (ii)  clarification  was  needed  as  to  the  circumstances  under  which  agreements 
between  dealers  and  online  platforms  may  constitute  “vertical  agreements”  for  the 
purpose  of  the  VBER.  At  the  same  time,  a  few  NCAs  report  difficulties  assessing 
agreements  between  competitors  in  which  one  party  to  the  agreement  acts  as  a 
distributor. In this regard, the NCAs note that the Horizontal Guidelines13 refer back to 
the VGL for vertical aspects of horizontal agreements. 

13   Communication  from  the  Commission  —  Guidelines  on  the  applicability  of  Article  101  of  the  Treaty  on  the 
Functioning  of  the  European  Union  to  horizontal  co-operation  agreements  Text  with  EEA  relevance.  OJ  C  11, 
14.1.2011. 

168 

 
 
 
 
 
 
                                                           
2.2 Agency agreements 

Paragraphs  12-21 VGL  provide guidance on the factors that define agency  agreements. 
They  explain  that  all  obligations  imposed  on  the  agent  in  relation  to  the  contracts 
concluded under an agency agreement fall outside Article 101(1) of the Treaty, since the 
selling or purchasing function of the agent forms part of the principal's activities and the 
principal bears the commercial and financial risks related to the selling and purchasing of 
the  contract  goods  or  services.  Provisions  which  concern  the  relationship  between  the 
agent and the principal may, however, infringe Article 101(1) of the Treaty. 

Both stakeholders and NCA have pointed to some issues with regard to the functioning 
of these provisions.  

First, NCAs are mostly of the view that the relevant paragraphs in the VGL provide an 
appropriate level of legal certainty. Nevertheless, some NCAs note that the VGL lack the 
necessary detail to assess the distinction between independent traders and agents acting 
on  behalf  of  a  supplier,  especially  with  regard  to  the  difference  in  the  legal  and  /  or 
commercial  risks  incurred.  Moreover,  these  NCAs  argue  that  the  VGL  do  not  provide 
adequate clarity as regards the increased use of mixed distribution models, under which a 
single undertaking combines the functions of agent and authorised distributor in the same 
product  market  for  the  same  brand.  In  this  regard,  the  NCAs  note  that  it  may  be 
questionable whether an OEM should be allowed to have contracts with the same dealer 
for both agency and distribution activities as, to be considered an agency agreement, the 
agent  should  not  take  any  financial  or  business  risk,  which  they  are  already  doing  as 
distributors  under  their  existing  dealer  contracts.  The  NCAs  point  out  that  this  is 
particularly  important  question  for  the  motor  vehicle  sector,  as  OEMs  usually  have 
considerable power vis-a-vis their dealers, and impose very costly standards upon them. 

A  significant  share  of  respondents  to  the  public  consultation  considered  that  the 
provisions  on  agency  agreements  included  in  the  VGL  provided  little  or  very  little 
level of legal certainty. In contrast to the position expressed by certain NCAs, some of 
these respondents explained that, in their view, (i) the current rules were too restrictive, 
in that they prevented agents from undertaking "other activities within the same product 
market  required  by  the  principal,  unless  these  activities  are  fully  reimbursed  by  the 
principal";  (ii)  as  the  difference  between  genuine  agents  and  non-genuine  agents  is 
allegedly not sufficiently clear, it would be good to include some examples in the VGL; 
(iii) the term “commercial agent“ should be defined, particularly in light of the increase 
in agency sales as well as sales over online platforms; and (iv) the circumstances under 
which car dealers can be considered as agents rather than authorised distributors should 
be clarified. 

The large majority of the issues raised by respondents and NCAs with regard to agency 
agreements  were  already  raised  in  the  context  of  the  evaluation  of  the  VBER.  In  this 
regard, it should be noted that on 5 February 2021 the Commission’s Directorate General 

169 

 
 
 
 
 
 
for Competition published a Working Paper titled “Distributors that also act as agents for 
certain products for the same supplier” setting out its preliminary views on this issue.14 

2.3 Subcontracting agreements  

Paragraph  22  VGL  explains  that  subcontracting  agreements  are  agreements  whereby  a 
subcontractor  undertakes  to  produce  certain  products  (exclusively)  for  the  contractor 
based  on  technology  or  equipment  provided  by  the  contractor.  These  agreements  are 
covered by the Subcontracting Notice15, which provides that these agreements generally 
fall  outside  Article  101(1)  of  the  Treaty  so  long  as  certain  conditions  are  met.  Other 
restrictions imposed on the subcontractor may, however, be caught by Article 101(1) of 
the Treaty. 

Paragraph  23  SGL  refers  to  the  Subcontracting  Notice  concerning  its  assessment  of 
certain  subcontracting  agreements  in  relation  to  Article  85(1)  of  the  EEC  Treaty.16 
Normally,  Article  101(1)  of  the  Treaty  does  not  apply  to  an  arrangement  whereby  a 
motor  vehicle  manufacturer  provides  a  tool  to  a  component  manufacturer  which  is 
necessary  for  the  production  of  certain  components,  shares  in  the  product  development 
costs,  or  contributes  necessary  intellectual  property  rights  or  know-how,  and  does  not 
allow  this  contribution  to  be  used  for  the  production  of  parts  to  be  sold  directly  in  the 
aftermarket.  On  the  other  hand,  if  a  motor  vehicle  manufacturer  obliges  a  component 
supplier  to  transfer  its  ownership  of  such  a  tool,  intellectual  property  rights,  or  know-
how,  bears  only  an  insignificant  part  of  the  product  development  costs,  or  does  not 
contribute any necessary tools, intellectual property rights, or know-how, the agreement 
at issue will not be considered to be a genuine sub-contracting arrangement. Therefore, it 
may  be  caught  by  Article  101(1)  of  the  Treaty  and  be  examined  pursuant  to  the 
provisions of the Block Exemption Regulations. 

The  evidence  gathered  during  the  evaluation  indicates  that  the  relevant  provisions 
provide a degree of legal certainty. Most NCAs consider that the level of legal certainty 
provided  by  the  provisions  in  question  is  adequate.  However,  NCAs  question  whether 
practices  commonly  known  as  “tooling  arrangements”,  whereby  vehicle  manufacturers 
prohibit  original  equipment  suppliers  from  using  the  original  tools  (or  parts  thereof)  to 
manufacture  parts  for  aftermarket  supply  under  the  suppliers’  own  brands,  could 
constitute  genuine  subcontracting  agreements  and  thus  not  be  caught  by  Article  101  of 
the Treaty. NCAs express concern that the Commission’s Subcontracting Notice does not 
provide  clarity  on  this  issue,  potentially  allowing  vehicle  manufacturers  to  remove  all 
sources of potential competition for spare parts supply. Finally, a non-negligible share of 
respondents  to  the  public  consultation  believed  that  the  provisions  on  subcontracting 

14   Available here.  
15   Commission  notice  of  18  December  1978  concerning  its  assessment  of  certain  subcontracting  agreements  in 

relation to Article 85 (1) of the EEC Treaty. OJ C 1, 3.1.1979. 

16   Now Article 101(1) of the Treaty. 

170 

 
 
 
 
 
                                                           
provided  little  or  very  little  legal  certainty.  However,  these  stakeholders  provided  no 
specific suggestions for improvement.  

2.4 Intermediaries 

Paragraph 52 SGL clarifies that the notion  of “end users” also  encompasses consumers 
who  purchase  through  an  intermediary  and  defines  “intermediary”  as  a  person  or  an 
undertaking  which  purchases  a  new  motor  vehicle  on  behalf  of  a  named  consumer 
without being a member of the distribution network.  

The  evaluation  suggests  that  overall  stakeholders  and  NCAs  consider  that  this 
provision has provided sufficient legal certainty but they point at some issues with 
regard to the functioning of the current rules in this area. Some respondents which 
believe the definition of intermediary has done “little” or “very little” to increase legal 
certainty argued that it was too strict for the opening given to such operators to be used 
in practice. Besides the comments made by leasing / rental entities suggesting that the 
“end user” status of leasing companies should be mentioned explicitly in the VBER and 
MVBER  instead  of  only  in  the  SGL  (see  Section  1.4  above),  no  suggestions  or 
examples were included to improve this definition. 

These  views  were  supported  by  NCAs,  which  indicated  that  the  definition,  while 
generally  adequate,  did  not  fully  capture  recent  market  developments  such  as  the 
increased use of internet platforms. In this regard, some NCAs expressed the view that in 
the  field  of  motor  vehicle  sales,  online  platforms  could  also  be  said  to  act  as 
“intermediaries” between customers and dealers. In addition, some NCAs indicated that 
there  were  also  firms  active  in  the  provision  of  repair  services,  which  could  be  said  to 
“intermediate”  between  customers  and  repairers.  NCAs  therefore  suggested  that 
clarification was lacking on these recent developments. They nevertheless noted that the 
question  as  to  when  and  under  what  conditions  platform  bans  constitute  a  hardcore 
infringement  pursuant  to  Article  4(c)  VBER  is  a  general  question  which  should  be 
addressed across sectors in the VBER and/or VGL. 

2.5 Spare parts 

Article  1(1)(h)  MVBER  defines  “spare  parts”  as  goods  which  are  to  be  installed  in  or 
upon a motor vehicle so as to replace components of that vehicle, including goods such 
as  lubricants  which  are  necessary  for  the  use  of  a  motor  vehicle,  with  the  exception  of 
fuel. 

The  evaluation  suggests  that,  generally,  stakeholders  and  NCAs  consider  that  this 
definition  has  provided  a  sufficient  level  of  legal  certainty.  Nevertheless  some 
respondents and NCAs point to some issues with regard to the current definition.  

Some of the respondents considering that this definition had provided “little” or “very 

171 

 
 
 
 
 
 
 
 
 
little”  legal  certainty  argued  that  the  definition  should  updated  to  reflect  technical 
developments  and  that  the  word  “component”  should  not  be  used,  as  this  term  is  not 
normally  used  to  describe  certain  goods  included  in  the  definition,  such  as  lubricants. 
These respondents’ suggestion would be to replace this word by “parts”  and to  define 
“parts” as “goods used for the assembly, repair and maintenance of a vehicle, as well as 
spare  parts”.  According  to  these  operators,  a  distinction  between  “repair  parts”  and 
“consumable parts” should also be considered.  

Some  NCAs  argue  that  the  scope  of  the  definition  should  be  expanded  to  encompass 
accessories:  that  is  to  say,  parts  which  are  not  intended  to  replace  components  of  the 
vehicle,  but  which  are  rather  “add-ons”.This  question  is  relevant  for  the  scope  of  the 
MVBER, since Article 4 MVBER only refers to  the conditions under which the parties 
may purchase, sell or resell spare parts. If the definition of spare parts were to be altered 
or expanded, it should be kept in mind that the notion would deviate from the definition 
set out in Regulation 2018/858. 17 

2.6 Tool  

Paragraph 68 SGL provides that the term “tools” includes electronic diagnostic and other 
repair tools, together with related software, including periodic updates thereof, and after-
sales services for such tools. 

While  a  significant  share  of  respondents  to  the  public  consultation  indicate  that  this 
definition has provided a sufficient level of legal certainty, a larger share believe that it 
has only achieved little or very little legal certainty. Despite this, not many explanations 
are  provided  to  support  the  positions  of  stakeholders,  with  some  respondents  simply 
indicating  that  this  definition  should  be  updated  to  reflect  technical  progress.  The 
evaluation  has  shown  that  NCAs  are  generally  of  the  view  that  the  definition  has 
provided a sufficient level of legal certainty. 

2.7 Non-compete obligation 

Article  1(1)(d)  VBER  defines  “non-compete  obligation”  as  any  direct  or  indirect 
obligation causing the buyer not to manufacture, purchase, sell or resell goods or services 
which compete with the contract goods or services, or any direct or indirect obligation on 
the  buyer  to  purchase  from  the  supplier  or  from  another  undertaking  designated  by  the 
supplier more than 80 % of the buyer's total purchases of the contract goods or services 
and their substitutes on the relevant market, calculated on the basis of the value or, where 
such is standard industry practice, the volume of its purchases in the preceding calendar 
year. 

17   Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and 
market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units 
intended  for  such  vehicles,  amending  Regulations  (EC)  No  715/2007  and  (EC)  No  595/2009  and  repealing 
Directive 2007/46/EC. OJ L 151, 14.6.2018. 

172 

 
 
 
 
 
 
 
                                                           
The  evaluation  has  shown  that  a  majority  of  respondents  to  the public consultation, 
and  NCAs,  consider  that  this  definition  has  provided  a  sufficient  level  of  legal 
certainty. Nevertheless, one NCA seemed to suggest that the wording of the definition 
may  be  unclear,  as  the  clause  seems  to  refer  to  a  ban  on  exclusivity  obligations  rather 
than  to  a  non-compete  obligation  in  the  sense  commonly  used  when  referring  to 
horizontal agreements.  

2.8 Connected undertaking  

Article  1(2)  VBER  and  Article  1(2)  MVBER  define  the  concept  of  “connected 
undertaking”.  

The evaluation suggests that stakeholders and NCAs consider that this definition has 
provided  a  sufficient  level  of  legal  certainty.  One  NCA  however  indicated  that  the 
current definition encompasses situations where neither of the undertakings in question 
actually control the other, and one respondent to the public consultation claimed that the 
reference  to  connected  undertakings  in  the  VBER  and  MVBER  are  arguably 
inconsistent with the usual definition of an undertaking as an economic unit. 

3  SPECIFIC VERTICAL RESTRICTIONS  

This  section  sets  out  the  evidence  collected  during  the  evaluation  on  a  number  of 
specific  vertical  restrictions  which  have  been  reported  as  being  prevalent  and/or  as  to 
which  substantive  issues  have  been  raised,  namely  (i)  the  misuse  of  warranties  (see 
Section  3.1);  (ii)  independent  operators’  access  to  technical  information  (see  Section 
3.2);  (iii)  placing  limits  on  the  numbers  of  authorised  repairers  within  a  brand  (see 
Section 3.3); and (iv) selective distribution (see Section 3.4). 

3.1 Misuse of warranties 

Paragraph  69  SGL  sets  out  the  general  principle  that,  for  qualitative  selective 
distribution agreements to benefit from  an exemption under the EU competition rules, 
the  vehicle  manufacturer's  warranty  must  not  be  made  conditional  on  the  end  user 
having  repair  and  maintenance  work  that  is  not  covered  by  the  warranty  carried  out 
within  the  vehicle  manufacturer's  authorised  repair  networks.  Likewise,  warranty 
conditions must not require the use of the vehicle manufacturer's brand of spare parts in 
respect  of  replacements  not  covered  by  the  warranty  terms.  These  types  of  behaviour 
may  result  in  the  foreclosure  of  independent  repairers  or  the  closing  of  alternative 
channels for the production and distribution of spare parts, which ultimately may have a 
bearing on the price that consumers pay for repair and maintenance services. 

The  evaluation  revealed  that  the  misuse  of  warranties  may  still  be  a  prevalent 

173 

 
 
 
 
 
 
 
 
 
 
restriction:  almost  40%  of  all  vertical  restrictions  identified  by  NCAs  in  their 
enforcement activities related to abuses of warranties, while 49% of respondents to the 
public  consultation  indicated  that  they  had  encountered  this  restriction  in  their 
agreements.  Moreover,  this  restriction  also  featured  in  the  top  three  alleged  vertical 
restrictions in the context of informal submissions concerning the motor vehicle sector 
received by the Commission over the last 10 years (see Annex 4 for further details).  

Overall, NCAs and respondents believe that this provision has achieved a sufficient 
level of legal certainty. Nevertheless, some issues with regard to the functioning of 
the current provision have been identified. 

First,  some  NCAs  advance  the  view  that  the  guidance  given  on  the  misuse  of 
manufacturers’ warranties is not clear enough. NCAs note that consumers' reluctance to 
use  the  services  of  an  independent  repairer  during  the  warranty  period  or  warranty 
extension period is  considerable as OEMs /  importers /  authorised dealers or repairers 
allegedly convey either directly or indirectly the message that the warranty will cease to 
apply if the end user has repair and maintenance work carried out outside the authorised 
repair networks. Some respondents echoed the NCAs’ arguments expressing their view 
that, in  practice, repair and maintenance work that is  not covered by the warranty can 
only be carried out by authorised repairers. In this regard, these respondents also alleged 
that  garage  owners  were  also  still  obliged  to  use  original  spare  parts  from  the 
manufacturer  and  that  warranties  on  new  and  second  hand  cars  are  used  to  pressurise 
consumers to have repair and maintenance services carried out by authorised repairers.  

Second,  some  NCAs  refer  to  conducts  such  as  complex  warranty  conditions  or  long 
warranty  periods,  which  in  their  view,  steer  vehicle  owners  towards  authorised 
repairers.  These  NCAs  further  add  that  this  trend  is  exacerbated  by  insurance 
companies’  certification  requirements,  which  allegedly  tend  to  favour  authorised 
garages. In relation to this, certain NCAs indicate that it is not clear whether authorised 
repairers  may  legitimately  refuse  to  honour  the  manufacturer’s  warranty  on  a  whole 
element  of  a  vehicle,  if  an  alternative  brand  of  spare  parts  has  been  used  to  replace  a 
particular part of that system. Moreover, certain NCAs indicate that the SGL could be 
clearer  as  regards  the  distinction  between  legal  (statutory)  warranties,  extended 
(unilateral)  warranties,  and  warranty  extensions  (often  issued  in  combination  with 
maintenance contracts). 

Finally, some NCAs stress the importance of keeping an explicit reference to the misuse 
of warranties in the SGL. In the same vein, NCAs highlight the importance of ensuring 
that  the  clauses  contained  in  all  the  documents  proposed  to  consumers  by  OEMs/ 
authorised dealers or repairers clearly state the consumer's right to use the services of an 
independent repairer without losing the benefit of the warranty. Finally, one respondent 
also  suggested  that  there  should  be  more  legal  certainty  with  regard  to  warranties  on 
second-hand vehicles.  

174 

 
 
 
 
 
 
3.2 Restriction of independent operators’ access to technical information 

Paragraphs  of  the  62-68  SGL  set  out  guidance  on  the  situations  in  which  qualitative 
selective  distribution  agreements  concluded  with  authorised  repairers  and/or  parts 
distributors may be caught by Article 101(1) of the Treaty if, within the context of those 
agreements, one of the parties acts in a way that forecloses independent operators from 
the market, by failing to release technical repair and maintenance information to them. A 
lack  of  access  to  necessary  technical  information  could  cause  the  market  position  of 
independent  operators  to  decline,  leading  to  consumer  harm,  in  terms  of  a  significant 
reduction  in  choice  of  spare  parts,  higher  prices  for  repair  and  maintenance  services,  a 
reduction  in  choice  of  repair  outlets  and  potential  safety  problems.  The  SGL  state  that 
technological  progress  implies  that  the  notion  of  technical  information  is  fluid  and 
provide  a  non-exhaustive  list  of  examples  of  technical  information.  The  SGL  also 
underline  the  importance  of  the  way  in  which  technical  information  is  supplied  for  the 
assessment of compatibility with Article 101 of the Treaty. 

Overall, NCAs consider that the provisions on access to technical information  have 
provided a sufficient degree of legal certainty. Nevertheless, some NCAs also point to 
the need to  reflect  on whether the current  definition of technical  information  should be 
updated  against  the  background  of  the  rising  complexity  and  digitalization  of  motor 
vehicles.  

In  particular,  some  NCAs  also  raise  the  question  of  whether  data  generated  in-vehicle 
should be included in the notion of “technical information” given in the SGL, and thus 
shared on an equal basis with authorised and independent repairers, or whether this data 
rather constitutes a separate category of essential input. Some NCAs note that if OEMs 
share  in-vehicle  generated  data  with  authorised  repairers  then  it  should  be  considered 
“technical  information”  and  should  therefore  be  shared  with  independent  repairers  to 
allow  effective  competition  on  the  aftermarkets.  On  the  other  hand,  certain  NCAs  also 
question  whether  access  to  such  data  can  indeed  be  considered  essential.  NCAs 
nevertheless  also  note  that  the  number  of  connected  cars  is  still  relatively  low  and  that 
manufacturers are still largely experimenting with in-vehicle data, meaning that it may be 
too  early  to  judge  whether  anticompetitive  behaviour  may  emerge.  Some  NCAs  also 
question whether competition law is in general the appropriate instrument to govern such 
data access. In any case, NCAs stress that, in any case, the list of “technical information” 
in the SGL should be considered non-exhaustive. 

Further  to  the  issue  of  access  to  in-vehicle  data,  NCAs  flag  two  additional  points:  (i) 
some NCAs indicate that OEM have started using specific codes for the installation of 
spare parts in motor vehicles which are needed for a replacement part to be registered 
and therefore recognised by the vehicle’s software. NCAs note that it may be necessary 
to allow independent repairers to have access to such software to allow them to register 
replacement parts;  and (ii) Paragraph 67 SGL would  need to  be updated to reflect  the 

175 

 
 
 
 
 
fact  that,  since  the  SGL  were  adopted,  Regulation  715/200718  has  been  replaced  by 
Regulation 2018/858.19 

Respondents  to  the  public  consultation  had  different  views  as  to  the  level  of  legal 
certainty achieved by the provisions on the restriction of independent operators to access 
technical  information.  Although  a  significant  share  of  respondents  believed  that  these 
provisions  had  provided  a  sufficient  legal  certainty,  almost  an  equal  amount  of 
respondents considered that they had only provided little or very little legal certainty.20 

As to the prevalence of the restriction of independent operators’ access to technical 
information,  about  54%  of  respondents  to  the  public  consultation  declare  to  have 
encountered  restrictions  to  access  technical  information  while  NCAs  report  having 
encountered restrictions on access to repair and maintenance information in about 7% of 
their decisions. 

3.3 Placing limits on the numbers of authorised repairers within a brand 

Paragraph 70 SGL provides that one of the main factors driving intra-brand competition 
relates  to  the  conditions  of  access  to  the  network  established  under  the  standard 
authorised  repairer  agreements.  In  view  of  the  generally  strong  market  position  of 
networks of authorised repairers, their particular importance for owners of newer motor 
vehicles,  and  the  fact  that  consumers  are  not  prepared  to  travel  long  distances  to  have 
their  cars  repaired,  it  is  important  that  access  to  the  authorised  repair  networks  should 
generally  remain  open  to  all  firms  that  meet  defined  quality  criteria.  Submitting 
applicants to quantitative selection is likely to cause the agreement to fall within Article 
101(1) of the Treaty. 

The evidence gathered during the evaluation indicates that NCAs are generally of the 
view  that  his  provision  has  provided  sufficient  legal  certainty  but  note  that  the 
effectiveness  of  the  MVBER  regime  could  be  higher  if  further  clarification  is 
provided  for  certain  areas.  For  example,  NCAs  would  like  further  guidance  and 
examples  of  quantitative  requirements  that  would  likely  fall  out  of  Article  101  of  the 
Treaty. Moreover, NCAs raise the question of whether the 40% threshold is applicable 
in every product and geographical market.  

Conversely,  only  a  small  share  of  respondents  to  the  public  consultation  believe 

18    Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of 
motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and 
on access to vehicle repair and maintenance information. OJ L 171, 29.6.2007. 

19   Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and 
market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units 
intended  for  such  vehicles,  amending  Regulations  (EC)  No  715/2007  and  (EC)  No  595/2009  and  repealing 
Directive 2007/46/EC. OJ L 151, 14.6.2018. 

20   The  arguments  raised  by  these  respondents  are  available  in  Section  2.3.1  (see  “Specific  Vertical  Restraints”), 

Annex 3. 

176 

 
 
 
 
 
 
 
                                                           
that  this  provision  has  provided  a  sufficient  level  of  legal  certainty,  with  a  larger 
share  of  respondents  considering  that  this  has  only  achieved  little  or  very  little  legal 
certainty.  In  addition,  38%  of  respondents  to  the  public  consultation  declare  to  have 
encountered this restriction in their agreements.  

In this regard, vehicle manufacturers have flagged that courts in different countries are 
giving  diverging  assessments  of  the  extent  to  which  vehicle  manufacturers  can  adopt 
measures that indirectly limit the number of authorised repairers, thereby undermining 
legal  certainty.  Considering  the  growing  technical  complexity  of  vehicles  and  the 
increasing investment cost for repairers, vehicle manufacturers see a significant risk of 
underinvestment  if  they  are  not  allowed  to  place  quantitative  limits  on  the  number  of 
authorised repairers. This would undermine service quality as well as the reputation of 
the brand, since consumers associate authorised repairers with the brand they represent. 
In  contrast,  associations  representing  dealers,  parts’  dealers  and  repairers  have  argued 
that the refusal  by a supplier to  re-approve a repairer meeting the qualitative selective 
criteria  should  constitute  a  hardcore  restriction,  without  it  being  necessary  to 
demonstrate  that  such  a  refusal  of  approval  falls  within  the  framework  of  a  "general 
policy" of the supplier. 

3.4 Selective distribution  

Selective distribution refers to a distribution system in which the supplier undertakes to 
sell  the  contract  goods  or  services  to  distributors  selected  on  the  basis  of  specified 
criteria,  while  the  distributors  undertake  not  to  sell  such  goods  or  services  to 
unauthorised  distributors  within  the  territory  reserved  by  the  supplier  to  operate  that 
system.21  

The VBER exempt selective distribution agreements, irrespective of whether quantitative 
or purely qualitative selection criteria are used, so long as the parties’ market shares do 
not  exceed  30%.  However,  that  exemption  is  conditional  on  the  agreements  not 
containing  any  of  the  hardcore  restrictions  or  excluded  restrictions  set  out  in  Article  4 
VBER and Article 5 MVBER. 

As  explained  in  paragraph  175  VGL,  to  assess  the  possible  anti-competitive  effects  of 
selective  distribution  under  Article  101  of  the  Treaty,  a  distinction  needs  to  be  made 
between purely qualitative selective distribution, where distributors are selected only on 
the basis of objective criteria required by the nature of the product (e.g., training of sales 
personnel),  and quantitative selective distribution, where selection criteria are used that 
limit  the  potential  number  of  distributors  more  directly  (e.g.,  requiring  minimum  or 
maximum sales or fixing the number of dealers). Purely qualitative selective distribution 
is  considered  to  fall  outside  Article  101(1)  of  the  Treaty  due  to  the  lack  of  anti-

21  

 See Article 1(e) VBER. 

177 

 
 
 
 
 
 
                                                           
competitive  effects,  provided  that  the  conditions  established  by  the  CJEU  in  its  Metro 
judgment (the so-called "Metro criteria") are fulfilled.22 

The  evaluation  has  shown  that,  overall,  respondents  to  the  public  consultation  consider 
that  both  the  definition  of  “selective  distribution”  (Article  1(1)(e)  VBER  and  Article 
1(1)(i)  MVBER)  as  well  the  provisions  thereon  included  in  the  VGL  and  SGL 
(paragraphs 174-178 VGL and paragraphs 42-71 SGL) have provided a sufficient level 
of legal certainty. In the same vein, NCAs generally also consider that the provisions on 
selective  distribution  have  provided  sufficient  legal  certainty.  However,  some  of  them 
mention  that  its  effectiveness  could  be  increased  if  further  clarifications  were 
provided.  In  line  with  their  comments  to  the  evaluation  of  the  VBER,  NCAs  indicate 
that there is insufficient clarity regarding the assessment of vertical restraints within the 
framework  of  selective  distribution  systems  in  light  of  the  recent  jurisprudence.  In 
particular, NCAs seek clarifications on the following points: (i) the implication of recent 
judgments to assess a vertical restraint when implemented in the framework of a selective 
distribution  system;23  (ii)  the  limits  to  quantitative  selective  distribution  systems  for 
motor  vehicle  distribution  and  provision  of  repair  and  maintenance  services  in  light  of 
recent jurisprudence;24 and (iii) the qualification of online sales restrictions and the legal 
treatment of online sales in the context of selective distribution. 

Based  on  the  fact-finding  study,  quantitative  selective  distribution  was  the  preferred 
model  in  the  passenger  cars  category  for  the  countries  in  scope,  while  vehicle 
manufacturers  operating  in  the  category  of  light  commercial  vehicle  category  opted 
mainly  for  qualitative  selective  distribution.  In  the  trucks  category,  many  vehicle 
manufacturers  used  mixed  systems,  with  a  prevalence  of  quantitative  distributions 
systems. Exclusive distribution is the prevalent type of distribution for buses. Direct sales 
formats were also common for the sales of both buses and trucks. 

4  INCONSISTENCIES  

The  evidence  gathered  in  the  evaluation  shows  that  the  MVBER  regime  is  overall 
coherent  internally  and  also  both  with  other  Commission  rules  and  guidance  on  the 
application  of  Article  101  of  the  Treaty,  as  well  as  with  other  EU  legislation  with 
relevance for vertical supply and distribution agreements. Nevertheless, stakeholders and 

22   Judgment of 25 October 1977 in Case 226/76, ECLI:EU:C:1977:167, Metro SB-Großmärkte GmbH & Co. KG v 
Commission. Selective distribution systems, however, are considered to restrict competition if they, especially as a 
result of market concentration or of the cumulative effects of parallel networks of similar agreements, impair price 
competition between products of different brands or block access to the market for undertakings using other forms 
of  distribution.  See  Judgment  of  22  October  1986  in  Case  75/84,  ECLI:EU:C:1986:399,  Metro  v  Commission, 
(Metro II). 

23  

In particular, the interaction between the Metro criteria and the conditions for exemption of selective distribution 
under the VBER. 

24   Judgment of 14 June 2012 in Case C-158/11, EU:C:2012:351, Auto 24 SARL v Jaguar Land Rover France SAS. 

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NCAs pointed to a few areas in which coherence is not as high as it could be due to a 
lack of clarity or perceived inconsistencies between certain rules.  

4.1 Internal inconsistencies  

When asked whether there are internal inconsistencies within each of the instruments 
of the MVBER regime, an identical number of respondents reply in the positive as 
in  the  negative.  The  share  of  respondents  that  reply  in  the  positive  generally  do  not 
specify the inconsistencies they appreciate.25  

Further,  respondents  were  asked  to  indicate  whether  there  were  inconsistencies 
between  the  different  instruments  of  the  MVBER  regime.  A  majority  said  there 
were no such inconsistencies and only very few respondents declared the opposite.26 

In  general,  NCAs  do  not  see  internal  inconsistencies  but  flag  three  potential 
inconsistencies in this regard.  

First, NCAs highlight what they perceive as a discrepancy in the market share thresholds 
set out in paragraphs 56 and 12 SGL for the exemption of agreements for the distribution 
of  new  vehicles.  While  paragraph  12  states  that  the  Commission  did  not  identify  any 
significant competition shortcomings in the new motor vehicle distribution sector which 
would require the application of a market share threshold different from and stricter than 
those in the VBER  (30%), recital 56 indicates that, when conducting the assessment of 
selective  distribution  systems  outside  of  the  block  exemption  regulation,  quantitative 
selective distribution of vehicles will generally satisfy the conditions laid down in Article 
101(3) of the Treaty if the parties’ market shares do not exceed 40%. In the NCAs view, 
this implies that motor vehicle distribution is treated differently to other sectors. 

Second, NCAs note that there might be a discrepancy with the overall notion of bilateral 
and unilateral  behaviour on  the issue of access to  technical  information.  According to 
paragraph  62  SGL,  qualitative  selective  distribution  agreements  concluded  with 
authorised repairers and / or parts distributors may be caught by Article 101 (1) of the 
Treaty if, within the context of those agreements, one of the parties acts in a way that 
forecloses  independent  operators  from  the  market,  for  instance  by  failing  to  release 
technical repair and maintenance information to them. In this regard, NCAs express the 
view that although the application of Article 101 (1) of the Treaty requires an agreement 
or concerted practice, paragraph 62 SGL foresees the application of Article 101 (1) of 

25  

It should be noted that one respondent did argue that the existence of specific rules for one sector of the economy 
(motor  vehicles)  in  itself  raises  a  consistency  issue.  According  to  this  respondent,  the  structure  of  the  regime 
(MVBER,  SGL  and  FAQ)  also  raises  similar  issues.  Finally,  this  respondent  submitted  that  there  are 
inconsistencies/lack of clarity in respect of geographical limitations and the treatment of warranties. 

26    For example, a respondent mentioned that paragraph 19 SGL refers to the definition of "original part" or "original 
equipment" in the type approval framework Directive 2007/46/EC. However, the latter has been replaced by TAR, 
which  does  not  contain  this  definition.  Therefore,  according  to  this  respondent  the  definitions  of  parts  should 
remain anchored in the SGL. 

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the Treaty when only one of the parties to the agreement acts in a way that forecloses 
independent operators from the market which, in the NCAs view, would usually qualify 
as unilateral behaviour falling under the abuse of dominance provisions.    

Finally,  NCAs  note  that,  as  perparagraph  62  SGL,  qualitative  selective  distribution 
agreements  could  be  caught  by  Article  101  (1)  of  the  Treaty  if  a  manufacturer  fails  to 
provide  independent  operators  with  information  necessary  for  repair  and  maintenance 
services.  In  this  regard,  spare  parts  manufacturers  and  distributors  are  defined  as 
independent  operators  which  may  be  foreclosed  by  the  manufacturer.  Nevertheless, 
paragraphs 63-65 SGL indicate that when considering whether technical information has 
to  be  made  available  to  independent  operators,  it  is  required  to  assess  if  the  technical 
information will be used for the manufacture of spare parts or for repair and maintenance. 
In the NCAs’ view, this distinction appears inconsistent, since spare parts manufacturers 
might be foreclosed by withholding technical information regarding the manufacture of 
spare parts.  

4.2 Inconsistencies  with  other  rules  /  guidance  on  the  application  of  Article  101  of 

the Treaty  

When  asked  whether  there  are  any  inconsistencies  with  other  rules  /  guidance  on 
the application of Article 101 of the Treaty, although some respondents believe there 
are  some  inconsistencies,  a  larger  share  believes  there  are  none.  The  former  group 
generally  added  general  comments  without  identifying  specific  inconsistencies  or 
contradictions.  

As for  NCAs, only  one of them flags  a potential  inconsistency in this regard.  They 
indicate  that  there  could  be  said  to  be  a  contradiction  concerning  the  definition  of  the 
relevant  market  in  the  motor  vehicle  sector.  In  the  NCAs  view,  in  its  Notice  on  the 
definition  of  relevant  market,  the  Commission  focuses  on  the  perspective  of  the  direct 
customer to analyse whether the respective goods or services are substitutable to satisfy a 
particular  demand:  an  approach  also  replicated  in  Article  3(1)  VBER  and  recital  7 
VBER. However, NCAs highlight that when determining if a contract between an OEM 
and its authorised repairer is caught by Article 101(1) of the Treaty or whether it satisfies 
the  conditions  of  Article  101(3)  of  the  Treaty,  in  paragraph  15  SGL,  the  Commission 
seems to focus on the point of view of the end consumer (the motorist) instead of that of 
the direct contractual partner: the authorised repairer. 

4.3 Inconsistencies with other EU rules  

When  asked  whether  there  are  any  inconsistencies  between  the  MVBER  regime 
rules  and  other  existing  or  upcoming  Commission  instruments  in  the  area  of 
competition  policy  and  enforcement,  NCAs  and  respondents  to  the  public 
consultation generally expressed the view that there are no such inconsistencies. 

180 

 
 
 
 
 
 
 
 
Some of the few respondents that see certain inconsistencies included specific examples 
concerning  the  interaction  between  the  MVBER  regime  and  the  Type  Approval 
Regulation.  For  example,  the  issue  was  raised  that  although  the  Type  Approval 
Regulation contains provisions on the access to repair and maintenance information, the 
description  of  technical  information  within  the  MVBER  is  by  its  very  nature  more 
“fluid”,  to  take  account  of  technical  progress.  In  this  sense,  it  was  suggested  that  the 
MVBER should emphasize that the notion of technical information should not be strictly 
limited  to  the  lists  of  examples  provided  in  the  Type  Approval  Regulation  to  help 
independent  operators  get  access  to  state-of-the-art  technical  information.  Some 
respondents  also  suggested  that  the  MVBER  could  be  updated  according  to  new 
provisions  on  vehicle  technical  information  included  in  the  Type  Approval  Regulation, 
such as Recitals 50, 51 and 52. 

Some other issues that came up related to the interaction between the MVBER and other 
EU  rules  concerned  the  UNECE  regulations.  For  example,  it  was  suggested  that  the 
integration of UNECE Regulations 155 and 156 via Regulation (EU) 2019/214427 would 
have an impact on the overall regulatory framework, and that potential issues of conflict 
would  require  additional  consideration.  A  few  respondents  suggested  that  UNECE 
regulations could be used to block access to in-vehicle data via the OBD port.  

Finally, NCAs stress that, when conducting its review, the Commission should carefully 
consider  any  upcoming  regulatory  measure  which  may  impose  obligations  on  OEMs 
concerning access to vehicle generated data (e.g., under the Digital Markets Act, Digital 
Services  Act,  or  the  type  approval  rules).  Similar  comments  were  shared  by  a  few 
respondents. 

27   Regulation  (EU)  2019/2144  of  the  European  Parliament  and  of  the  Council  of  27  November  2019  on  type-
approval requirements for motor vehicles and their trailers, and systems, components and separate technical units 
intended for such vehicles, as regards their general safety and the protection of vehicle occupants and vulnerable 
road users.  

181