FNA essentially defends very small enterprises (VSEs) made up of fewer than 11 employees.

FNA representatives thank the European Commission for seeking stakeholders’ views regarding the existing retained MVBER. They present hereafter their findings and submit their conclusions.

►FNA calls on the European Commission to re-evaluate its position for the following reasons.

A simple extension of the current MVBER, without a groundwork of fundamental directly applicable provisions, results in maintaining the automotive after-sales services market under incessant pressure from car manufacturers to keep consumers in their network.

The following developments aim to illustrate this persisting tension through the implementation of car manufacturers’ means. These are, on the one hand, the legal instrument which is car manufacturer's warranty, and on the other, the technological information. This information refers as well to the technical one, which is essential to diagnosis, maintenance and repair as those data which are generated during vehicle operation.

1. The request, which the FNA is renewing, had already been approved by the European Parliament and relayed nearly ten years earlier by French Competition Authority.

1.1 In its resolution of 25 November 2020, the European Parliament is pleading for the method that FNA representatives have been advocating for decades[1]:

→ “the effective implementation and enforcement of existing rules is essential for a well-functioning and sustainable single market[2];”

→ “the impact assessment must consider the possible effects of such potential extensions on prices, the expected lifetime of products, commercial guarantee systems and independent repair services[3]”

→ “an approach that both safeguards the enforcement of intellectual property rights and ensures effective support for independent repairers in order to promote consumer choice and achieve an overall sustainable single market [4].”

1.2 French Competition Authority, in its “sector inquiry into car repair and maintenance” of October 8, 2012, recognized the need to “verify and, if necessary, sanction restrictions on access to manufacturers' technical information[5].” This “Autorité” alerted to the observation made by FNA: “the effectiveness of the existing technical rules depends on the setting up of control mechanisms and sufficient and credible penalising deterrents, which are currently non-existent. Furthermore, the Autorité is in favour of an extension of the current standardisation process.”

2. “The incessant pressure to keep customers” is a constant noted in the analysis carried out by the Boston Consulting Group, in 2014, in 5 countries: Germany, Spain, France, Poland and the United Kingdom[6]. The conclusions underlined the breakthrough of car manufacturers’ network in the segment of mechanical and electronic repair of vehicles from 5 to 8 years old through, in particular, warranty extensions, maintenance contracts and mobility packages including repairs inherent in normal wear. Independent repairers therefore only have limited access to customers for repair and maintenance from the fifth year of the vehicle. Only for vehicles over eight years old, they can work in all segments of the aftermarket.

3. However, even this too late opening of independent repairers’ access to the maintenance and repair market is no longer possible with the exploitation of new technologies that car manufacturers are making as an instrument of control over the vehicle, from a distance, throughout years after the sale.

3.1 For example, Mrs. Johanne Berner Hansen, lawyer for the Danish organization of independent repairers, Dansk Bilbrancheråd (DBR), reported that TESLA representatives are able to “totally control” the vehicle. They can make it "unsupported", which means TESLA can remove the charging capability of the battery. This renders the car unusable. There is no option to remove the feature, which prevents vehicles from returning to their working condition. This is a major problem for consumers attached to the confidence rewarded to their chosen independent repairer. TESLA manufacturer prevents them, through the cutting-edge technology he has developed, from choosing their repairer and thus to use competition to their advantage.

3.2 Securing access to data is fundamental. The European Commission should adopt directly applicable provisions to ensure that car manufacturers apply the “FAIR” principles, supported by international institutions. These principles can be summarized in the following terms: data must be easily findable, accessible, interoperable and reusable. These principles were claimed by the European Parliament in its resolution of January 15, 2019 on new technologies used for mobility[7]. MEPs asserted that “legislative actions should ensure fair, secure, real-time and technology-neutral access to in-vehicle data for some third party entities; such access should enable end users and third parties to benefit from digitalisation and promote a level playing field and security with regard to storage of in-vehicle data[8];”

3.3 Based on this truly effective competition policy, called for by MEPs, FNA representatives ask the European Commission for regulations which must be directly applicable to the French market. Details of the implementation of the MVBER are only included in the guidelines and without any dissuasive effect. They remain insufficient to change the practices of car manufacturers on the national market, while the issues are of general interest:

→Creating free access to data is essential to ensure consumer’s freedom of choice and to preserve their purchasing power.

→Ensuring this freedom of remote access is essential for carrying out diagnoses and obtaining additional services. The rise of electric vehicles, for example, is accompanied by new digital services to facilitate the optimal integration of vehicles into the electrical system, which require access to specific data. For thermal vehicles in circulation and electric ones, predictive diagnostics offers a new way of anticipating breakdowns or maintenance operations to be carried out on the vehicle (for example: the level of wear of the engine oil according to the use of the vehicle making it necessary to carry out an oil change); custom analytics tools help transform massive amounts of data into real-time insights. This helps to identify the source of the problem and apply solutions more quickly to avoid future incidents. But these devices are still “reserved” by manufacturers for their network.

3.4 The FNA relies on the JRC study, which considers “that a better use of data, resources and functions of the car by all stakeholders could lead to better quality and cheaper data-driven services for consumers. It could also lead to strong uptake of these services, benefiting consumer welfare and innovation[9]. »

4. For these reasons, FNA representatives call on the European Commission for having the following guiding principles developed within a directly applicable European regulation on free access to car manufacturers' data.

4.1 Proposing a list of data, functions and resources, but also governance rules on access.

All requirements likely to guarantee neutrality of technology on free competition and precisions of methods of access to data should be defined, as well as the necessary means of control of their implementation.

→Making provisions more targeted to restore consumers’ freedom of choice

●Data, both technical and generated by the vehicle, must remain accessible, open to the automotive repair market, in particular to independent repairers, without any other formality.

●The user's request must be simplified, implicitly granted by default for the maintenance and repair of vehicles. FNA pursues an absolute imperative of road safety and freedom of choice for motorists.

→Examples showing this immediate need for the above dual demand

■ Example 1 - Vehicle with a light that comes on intermittently

The car manufacturer's network is informed in real time, unlike the independent repairers.

■ Example 2 - BMW recommends maintenance, which is not based on mileage or traffic frequency, but on a wear rate, i.e. on vehicle usage data. The car manufacturer obviously has this information, while the independent repairers are deprived of it. However, access to these data is essential to advise and satisfy the customer who has chosen an independent repairer. The law, in fact, by the obligation of result incumbent on the repairer, holds the repairer responsible for a lack of advice or diagnosis.

■ Example 3 - The current practice of online quotes based on license plate or mileage could be exploited by the car manufacturer's network in order to deprive independent repairers of the possibility of submitting their offer.

To overcome these obstacles, it would be necessary that for the technical data and those generated by the vehicle, the agreement of the customer, that is to say his request for the transfer of these data, is satisfied either implicitly or by a generic clause when the vehicle is sold. Specific regulations for the automotive sector could provide that any contrary clause is prohibited.

→Defining how data should be accessed

●Data must be delivered in a usable format, in a simple, clear and free way for independent repairers. Compensation can only be due for direct costs, as repairers already pay high sums to access security data. An accumulation of compensation would lead to the eviction of independent repairers in favor of car manufacturers’ network.

●Car manufacturers should not be able to exonerate themselves from their obligation to transmit these data due to an impossibility or a technical failure.

● Consumers must not be bound by an explicit positive act of transmitting data from their vehicle before they have chosen a repairer not affiliated with the manufacturer's brand. The latter could, in fact, take advantage of the moment of sale to retain customers for after-sales services by an agreement cleverly introduced into the contract, under the pretext, for example, of warranty and other advantages communicated by wide publicity. Technical services must not be conditional on any other agreement of customers than that of having their vehicle maintained and repaired where they wish without car manufacturers having a say.

●Clarification and anticipation are also necessary for technical control as the development is moving towards data entry by the vehicle control office. The problem then arises for consumers of knowing who to contact to anticipate the technical inspection without being influenced by car manufacturers’ network.

What would also be the impact for black boxes, which will equip vehicles from July 2022?

●FNA members oppose trade secrecy being invoked by car manufacturers to prevent the transfer of certain vehicle-generated data, including in relation to vehicle safety.

4.2 Imposing the continuous and real-time transmission of data

Members of the FNA and publishers of purely technical solutions are penalized by a lack of precision in the provisions regarding data transmission. Car manufacturers tend to force them to wait for validation from them, upstream of the services. A partial transmission of data would have the effect of preventing independent repairers from offering additional sales in relation to the actual condition of the vehicle. FNA representatives remain attentive to ensuring that repairers and software publishers have access to the technical data of vehicles. Car manufacturers must automatically make data available to a third party continuously and in real time, upon simple request.

4.3 Regulating access on board to carry out what is essential to the repairers’ obligation of result

FNA members are concerned that the technical data of vehicles, and in particular those resulting from the actual use of vehicles, are completely locked down by car manufacturers. Consumers trust independent repairers for maintenance and repair services. The obligation of result, that is to say the good result that they have to get in advising customers, diagnosing, maintaining and repairing vehicles, implies that FNA representatives want to ensure that the necessary precautions are taken by their professionals. FNA members fear that independent repairers will be limited in their ability to offer additional sales, that is to say not provided for in the conditions agreed with the customer at the start, whereas these services are essential to fulfill repairers’ obligation of result. Therefore, sectoral regulation will have to ensure that no barriers are allowed. If this specific regulation is not adopted or sanctioned by the European authorities, the competitive advantage, which car manufacturers’ networks illegitimately assume, will be fatal for the future of independent repairers chosen by consumers, who will then be deprived of the free competition essential to maintaining their purchasing power.

4.4 Ensuring standardization of interoperability

FNA members have supported the interoperability requirement for decades. The interoperability enables automatic data access and immediate transmission between parties, including streaming, in real time in a machine-readable format. Therefore interoperability standards must be developed and applied, in consultation with organizations specialized in standardization.

[1] European Parliament resolution of 25 November 2020 “Towards a more sustainable single market for business and consumers” (2020/2021(INI))

[2] § D

[3] § 6 (e) ‘‘in the preparation of the review of Directive (EU) 2019/771, assess how to bring the duration of legal guarantees more into line with the estimated lifetime of a product category, as well as how an extension of the reversed burden of proof period for non-conformity would enhance the possibility for consumers and businesses to make sustainable choices; calls for this impact assessment to consider the possible effects of such potential extensions on prices, the expected lifetime of products, commercial guarantee systems and independent repair services;’’

[4] § 14 second sentence: “calls for an approach that both safeguards the enforcement of intellectual property rights and ensures effective support for independent repairers in order to promote consumer choice and achieve an overall sustainable single market;”

[5]https://www.autoritedelaconcurrence.fr/en/communiques-de-presse/8-october-2012-sector-inquiry-car-repair-and-maintenanc

Press release of French Competition Authority, 8.10.2012, § 3: “Furthermore, the Autorité considers that the effectiveness of the existing technical rules depends on the setting up of control mechanisms and sufficient and credible penalising deterrents, which are currently non-existent. Furthermore, the Autorité is in favour of an extension of the current standardisation process.”

[6] The Boston Consulting Group‘‘Returning to Growth, a look at the European Automotive Aftermarket’’, July 2014, pages 6-7.

[7] https://www.europarl.europa.eu/doceo/document/TA-8-2019-0005_EN.html

[8] § 8 “Affirms the need to explore legislative actions to ensure fair, secure, real-time and technology-neutral access to in-vehicle data for some third party entities; takes the view that such access should enable end users and third parties to benefit from digitalisation and promote a level playing field and security with regard to storage of in-vehicle data;”

legislative actions to ensure fair, secure, real-time and technology-neutral access to in-vehicle data for some third party entities; takes the view that such access should enable end users and third parties to benefit from digitalisation and promote a level playing field and security with regard to storage of in-vehicle data;”

[9] JRC “Digital Economy Working Paper” 2018-06, Bertin Martens, Frank Mueller-Langer, 20