Aftermarket February 2023

FEBRUARY 2023 AFTERMARKET 15 www.aftermarketonline.net rectify “residual and novel issues” in the existing requirements which are not being implemented correctly. These included the CMA’s revision in the guidance for improved clarity from the vehicle manufacturers and their authorised repairers: “...to produce additional and updated guidance to clarify that the clauses contained in all the documents proposed to consumers by OEMs/authorised dealers or repairers should clearly state the consumer's right to use the services of an independent repairer without losing the benefit of the warranty.” The CMA also understood that the requirements of the existing “hardcore restrictions” that provide access for independent operators to OEM parts, or the ability for Tier 1 parts manufacturers to sell their parts through their Aftermarket divisions is not working as intended. Therefore, the CMA is: “...recommending that further guidance on this matter be issued in order to address residual and novel issues reported by stakeholders.” Secondly, the CMA recognises that there is a need to address the definitions in the MV-BER. Therefore, there is a recommendation to update the definition of ‘spare parts’ to address: “…access to software is increasingly a necessary condition to ensure providers of repair and maintenance are able to fit certain spare parts. In this context, the CMA considers that the definition of spare parts should encompass all software, together with activation/configuration codes for replacement parts and components, which are strictly necessary to fit those parts and to replace or update components or systems of the vehicle, which are necessary for the use or operation of a motor vehicle…’ The CMA have also recognised the importance of “access to vehicle and technical information and ‘in-vehicle data” and recommend the introduction of a new definition. However, the details are not yet clear: “The CMA acknowledges that the manner in which technical and vehicle information is provided is a relevant consideration and notes that this issue is already covered in the EU Supplementary Guidelines in paragraph 67. Furthermore, the CMA is minded to issue further guidance on this subject in the context of any MVBEO Guidance. We also received comments that the legal instruments above mentioned do not cover in- vehicle generated data which may constitute an essential input for independent providers. The CMA agrees the in-vehicle data may amount to an essential input on which independent operators rely and recommends that this type of information is included in the definition of technical and vehicle information.” Although the CMA recognises that this new definition is important, they are also recommending to include this as an ‘excluded restriction’: “...given the potential for these restrictions to distort competition, in particular, competition between authorised and independent providers, it would be appropriate to ensure that these types of restrictions are carefully self- assessed by businesses on a case-by-case basis, taking account of the specific circumstances. This effectively states that the vehicle manufacturer will be responsible for defining what and how access to vehicle generated data is provided and be self-assessed on a ‘case-by-case’ basis. This has partly been addressed by the CMA recognising: “...the CMA considers that this risk could be sufficiently mitigated by the issuance of revised guidance which could assist and help businesses to carry out the self- assessment and to distinguish restrictions which meet the conditions for individual exemption from those that do not.” However, for the aftermarket, this is still likely to be highly problematic, whilst also only providing a very weak legal basis for any challenge to be made by independent operators against a vehicle manufacturer. Thirdly, the CMA recognises that they ‘should be mindful’ of what the EU is also considering in the EU’s revisions of the MV-BER: “The CMA has been mindful of the approach proposed in the EU by the European Commission. The CMA is conscious that there may be advantages in divergence from the EU in certain circumstances .....Equally, the CMA recognises that, all things being equal, there can also be benefits in consistency between the EU and the UK block exemptions...” Distorting the market? In both the EU and the UK, the remote access to a vehicle, its data, resources and functions is already distorting the market and should be included in the revision of the MV-BER. However, in line with what the EU is proposing, the CMA recommends a ‘wait and see’ approach: “It therefore seems likely that some parts of the motor vehicle sector will evolve rapidly over the coming years and that this will have an impact on the conditions of competition that cannot currently be quantified.” So overall, although the CMA has recognised many of the issues that impact the UK aftermarket and which should be addressed, there are also well intended revisions that have yet to be detailed (i.e. the new wording in the guidance of the MV-BEO) and which if not handled correctly, could be very detrimental to the future of the UK aftermarket. Supersizing the MV-BEO will be good, but only if implemented correctly. xenconsultancy.com