Autorité de la concurrence, opinion no. 12-A-21 dated 8 October 2012.

Through its opinion issued on 8 October, the Autorité de la concurrence proposes solutions to combat certain competitive barriers it has observed in the automotive spare parts and vehicle repair and maintenance sector.

In July 2011, the Autorité de la concurrence initiated a sector-specific inquiry into the automotive spare parts and vehicle repair and maintenance sector in order to gain an understanding of price increases in this market. After a public consultation starting on 11 April 2012 on an initial analysis, giving rise to ample commentary by interested parties, the Autorité published its opinion no. 12-A-21 in which it describes the existence of certain competitive barriers and issues proposals to rectify the situation.

Firstly, the Autorité considers that the protection for the design of visible car parts has a clear effect on competition in that it vests a monopoly over the visible spare part concerned to the vehicle manufacturer. For improved effectiveness of the automotive after-sales sector, the Autorité recommends that a "repair clause" should be adopted into French law. The purpose of such a clause would be to limit the protection under design and copyright law to original visible parts and to exclude from such protection, visible replacement parts which could then be freely produced and marketed by original equipment manufacturers.

Due to the economic difficulties being experienced by French manufacturers, the Autorité deems it necessary to program a gradual lifting of intellectual property rights depending on the type of spare part, the principle of which would be enshrined in law and the implementation timetable set out by decree.

Secondly, the Autorité notes the existence of barriers to the marketing of spare parts by original equipment manufacturers, notably the ban imposed on the latter from removing vehicle manufacturers' logos, the obligation to use moulds exclusively for the needs of a specific vehicle manufacturer, etc. The Autorité recommends the strict application of competition law and also, amending the French Intellectual Property Code to enable original equipment manufacturers to substitute vehicle manufacturer logos with their own.

Thirdly, the Autorité recalls the need for independent repairers to have access to technical information in order to carry out repairs involving the replacement of spare parts. To ensure that access to such information is fully effective, the Autorité deems it necessary for the parties involved to agree on the practical details regarding the transfer and contents of the shared data. These methods would enable the Authorities to verify, and where relevant sanction, any breaches of the technical rules.

Finally, the Autorité also notes the barrier imposed by the practice of linking warranty benefits to the use of the vehicle manufacturer’s approved network even for repairs which are not even covered by the warranty. It also draws attention to the practice of circulating recommended prices which tends to undermine price competition. Regarding these two practices, the Autorité recommends the application of competition law on a case-by-case basis.

This opinion is not binding on either manufacturers or the legislator. The legislator could, however, follow certain of its recommendations, notably those on intellectual property.