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Thursday, 28 June 2012

Brussels conference session one

The annual conference on the block exemption has moved from its regular January spot to the middle of the year which will be convenient given that big changes will happen this time next year. But it does mean that it is warm and humid in Brussels - not a good time to take a room at the wrong hotel and therefore have to take a lengthy walk after breakfast.
To start, the chairman Frank Wijkmans asked everyone present to introduce themselves - the audience being small enough for that to be practicable. Most of the usual suspects were present. He then explained that there was no speaker from the Commission today, because any speaker from that institution would have been obliged to say something about the long-awaited frequently asked questions and that would have been, for them, premature.
He then gave us a "helicopter perspective" (a modern, high-tech, trendy, version of a bird's-eye view, I suppose) of the subject, saying that in his experience there was less self-assessment going on than one might imagine: it is still common practice to stick closely and safely to the block exemption. But he reminded us that the starting point must always be Article 101(1) TFEU - the MAN case in Germany turns on that provision, as does the French Gremeau case (from 2007), raising the question whether there is a restriction on competition at all. That case is going to loom large in today's sessions - one of the speakers has ben asked to talk about it.
The FAQs are the other hot topic, and as Marc Greven of ACEA had mentioned in the opening self-introductions the document is on the way - but won't say much. Oh dear. The chairman's hope today is to ask our own questions (which will have a better claim to be frequently asked than the Commission's) and provide answers to them. He urged us not to underestimate the significance of the FAQs: previous FAQs have been treated almost as black-letter law.
The three Ts - technical info, tools and training - have been removed from teh blcok exemption, but the Commission  still threatens to return to the subject under the basic treaty articles, which is quite right. The inclusion of technical information issues in type approval legislation means that there are in principle significant sanctions for anyone who fails to make the information available.
The first speaker was Klaus Heimgaertner,  a lawyer with the ADAC, who had the job of presenting the consumer's perspective. He raised questions about the applicability of the block exemption in light of the Auto 24 case, which seemed to be misgivings shared by several other people to whom I have spoken. The way in which selection criteria may be applied is at least confusing. There are many frequently-asked questions about this - and many rarely-offered answers.
On dealer protection, he regarded the present situation (in which there isn't any) to be a step backwards, and  raised the possibility that national differences will emerge. Indeed, they already exist - which is why, as Joseph Vogel pointed out to me yesterday, there are about 100 court decisions touching on the block exemption in France but only one in the UK.
The German court concluded in the MAN case that the manufacturer did not have a dominant position in the Austrian market for repairs and servicing - taking a very different view of the relevant market. He said that other speakers would have more to say on the subject.
He spoke about an instance he had dealt with where an independent repairer had replaced a headlamp but had been obliged to send the customer to an authorised dealer to make the software adjustments to make it work. That was a new one to me - but not surprising. I am amused to see that he has abbreviated "repair and maintenance information" to "RMI". He bemoaned the lack of definitions in the new regulations, which meant that legal certainly gained over the lifetime of the previous block exemptions had been lost.
There seemed to be little in the way of a consumer perspective in his talk. In conclusion, he said that manufacturers are going to gain more influence from next year. There's a surprise. My only reservation about the truth of that is that they could hardly have more influence than they have at the moment. He thought that exclusive distribution will become common for premium brands, which would  be an interesting departure. As for the aftersales market, he drew a comparison with the Microsoft case in which the Court had just reduced (slightly) the penalty imposed on the software maker. It showed the unsuitability of antitrust law as a means of protecting consumers: it just takes too long to use.

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