Bentley: another cautionary trade mark tale

Bentley Motors has been involved in a trade mark dispute for many years, the other party being a company called Brandlogic which owns a number of trade marks of which the important verbal part is BENTLEY 1962, which have been registered for clothes since as long ago as 1982.

Bentley Motors has been using its trade mark on a small range of clothes for nearly 20 years. The prices of the clothes are, other things being equal, comparable to the price of the cars - a polo shirt will set you back £75, according to the Financial Times. Not happy about someone else using the name, Bentley Motors sought to have the Brandlogic trade marks declared invalid or revoked on grounds of non-use for five years. Although they succeeded in part, they were unable to clear the way entirely, and even an appeal (to the Appointed Person) left Bentley Motors in difficulties.

Now Bentley Motors have filed an EU trade mark application. They might have been hoping that this way they might do without Brandlogic noticing, because on the face of it their earlier trade marks will be a barrier to the new application. I've done it myself, usually the other way round - applying for a UK trade mark so the owner of an earlier EU trade mark wouldn't notice. If so, it hasn't worked. The reason the matter has been in the press recently is because Brandlogic's trade mark attorneys have switched sides, in a perfectly proper manner within the rules (although that's not to say that the rules, or the regulator, are right). Inevitably, they will want to act for the client with the biggest chequebook - that's the way the legal industry works (oh, you thought it was a profession?).

What is deplorable here is not that a company should be trying to maximise the power of its trade marks. As car companies go into making clothes - as everyone goes into making clothes, I suppose - trade mark registrations have to get wider. Often these conflicts are dealt with in a very heavy-handed way - the Goliath tries to bully David. I've seen it happen to my own clients and it isn't nice. But Goliath is answerable to its shareholders, and they are going to insist on trying every trick in the book to overcome the nuisance earlier trade mark, regardless of the merits. Often might alone (or at least a big chequebook) is enough. And that isn't a sound basis for a just trade marks system.

Testarossa trade mark under threat

According to international IP firm Novagraaf, Ferrari face a challenge to their registration of the trade mark TESTAROSSA. Autec AG of Nuremberg has applied to register an identical trade mark (in Germany, presumably) for bicycles (including e-bikes), and Ferrari's opposition has been rejected by the German courts on the grounds that the Italian manufacturer has not used its trade mark for more than five years. Non-use for five years or more makes a trade mark registration liable to revocation, and Autec is now seeking to have Ferrari's German and EU trade marks revoked.

Ferrari had argued that the trade mark was in use, as it was providing maintenance and repair services for the Testarossa - which it stopped making in 1996. But the court, crucially, held that in fact those services were marketed under the Ferrari brand not TESTAROSSA.

That seems quite correct to me. Trade marks perform several functions, not just the traditional origin-indicating one, but essentially a trade mark owner must use a trade mark to indicate the origin of its goods and services. TESTAROSSA in connection with servicing and repair is an indication of the purpose of the services, and should not support the registration of the trade mark for cars. There are 11 various registrations in Ferrari's name for TESTAROSSA (and quite a few in other people's names, hardly surprising given that the word could just as well be used for many different goods), but none of them are for services. Replacement parts are covered, but I suspect that the objection that they are sold under the Ferrari name not TESTAROSSA (and, if it be used at all, that designation is purely descriptive of the purpose of the goods) would apply here too.

A cautionary tale for owners of "heritage" (that is to say, old) trade marks. In the UK, perhaps they don't need to worry so much because an action for passing off might lie even if the trade mark were liable to revocation, but far better and cheaper to keep the trade mark in use, somehow. When the modern Testarossa was launched in 1984 its chosen name harked back to the 1957 Ferrari 250 sports racing car, and the name could similarly be recycled now to maintain protection. 

Germany/Italy: BMW in claim for infringement of wheel design

This blog post from Dr Meyer-Dulheuer & Partners tells us that BMW have become embroiled in legal proceedings over a design for a wheel. Specifically, they have an EU Registered Design for the wheel, and an Italian company named Acacia has made wheels allegedly to the design. Acacia supply their products under the "Wheels Spare Parts" brand, which gives a pretty clear indication of how they hope to avoid a successful claim that they have infringed. Good luck to them, in light of the Round and Metal case in the UK. Of course the courts of another Member State might differ - and the history of EU design law tells us that continental countries don't necessarily share the UK's views on spare parts.

So far, the dispute has been focused on forum. Acacia applied to the Italian courts for a declaration of non-infringement, and the matter eventually found its way to Luxembourg where the Court of Justice held that the courts of the defendant's country were the right venue for the dispute. The matter is complicated by the fact that the so-called "repair clause" (the EU equivalent of the UK's "must-match" exemption) has been adopted in Italian but not in German law, so (between Germany and Italy) Acacia's defence could only work in its home country. Acacia's apparent hope that BMW's response to the Italian proceedings would give the court jurisdiction didn't work either - although parties to foreign proceedings must always take great care when faced with the need to take a step that could be regarded as accepting jurisdiction.

So now it seems that we can await, with great interest, the judgment on the substantive claim from the German court.

Here is the Judgement of the Court (Second Chamber) from 13 July 2017.

Volkswagen offers free telematics service to new and current company car drivers

Fleet News reports this development from VW. The service (which seems to be based on a mobile phone app) is aimed at fleet operators. It enables drivers (and presumably their employers) to monitor fuel consumption and driving style, and (here's the legally interesting thing) offers the possibility of linking to authorised repairers. Provided it's optional, the latter should be OK: it will be handy for operators, no doubt, and they are likely to be locked in to service contracts anyway. It's when such links tie consumers to the network that it gets worrying, both from the competition angle and as a data protection issue.



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VW offers trade-ins up to 10,000 euros in diesel clean-up

Reuters reports that VW is offering up to €10,000 off the price of a new car to encourage owners to trade in older diesel cars. Manufacturers had promised German government officials last week that they would modify software in more than 5 million diesel-powered cars, hoping to avoid a ban on diesel vehicles - several major German cities are talking about banning diesels, and with federal elections due next month the issue is urgent.

The discounts offered by VW vary (as you might expect) across the range, and cover several brands within the group. For the core VW brand, the rebate will be between €2,000 and €10,000: for Audi, €3,000 to €10,000, and for Porsche, €5,000, according to Reuters. BMW, Daimler and Ford have also announced incentives.

The VW offer will run to the end of the year, and additional incentives to go for hybrid, electric or natural gas models are also available.

BMW is also extending to the UK a similar scheme it launched recently in Germany. Details from BMW here.

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The proposed joint acquisition of the financial activities of Opel and Vauxhall by Groupe PSA and BNP Paribas is approved by the European antitrust authorities | Media Groupe PSA

From the PSA press release:

Today, the European Commission approved the proposed acquisition by Groupe PSA and BNP Paribas of the captive companies of Opel/Vauxhall.
This proposed deal to jointly acquire the captive financing companies of Opel/Vauxhall and to build a strategic long-term partnership around the Opel and Vauxhall brands was announced on 6 March 2017, as part of the acquisition of Opel/Vauxhall by Groupe PSA. .
 These activities will benefit from the combined expertise of Banque PSA Finance and BNP Paribas Personal Finance in automotive financing, to better serve dealers and Opel and Vauxhall customers and support the development of the two brands.
 This operation is also subject to the approval of the European banking authorities, whose decision is expected in the second half of the year.
 "An important milestone was reached today for the teams already mobilized on this project for several months”, explains Laurent David, Chief Executive Officer of BNP Paribas Personal Finance. “Teams are now concentrating on fulfilling the remaining conditions necessary to close this deal, which is expected to be achieved before the end of the year", indicated, Rémy Bayle, Chief Executive Officer of Banque PSA Finance."

The Commission has also released the story, in its daily news bulletin and in French, here. You'll have to scroll down to find it. More information from the Commission's register of competition cases under number M.8460.



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FCA on motor finance market

The Financial Conduct Authority tells us: 'We are looking at the motor finance market to ensure that it works well and to assess whether consumers are at risk of harm.' It goes on:

'Consumers’ use of motor finance has grown rapidly in recent years, with many credit products now available.

'As we set out in our Business Plan 2017–18, we are looking at this market to develop our understanding of these products and how they are sold, and to assess whether the products cause harm to consumers and if the market is functioning as well as it could.'

Details of the Authority's work, which naturally focuses on PCPs, are on its webiste (link in the first line above). It promises to publish an update in Q1 2018.

Automobile industry calls for balanced outcome in EU-Japan FTA

As the EU and Japan get closer to entering into a comprehensive free trade agreement, though it seems that it is being presented as a finished project despite there being a lot of loose ends to tie up, ACEA has drawn attention to some particular aspects important to the motor industry, according to this press release. The removal of tariffs on imports into the EU from Japan (currently 10 per cent on cars, and up to 22 per cent on commercial vehicles) must be balanced by a reduction in non-tariff barriers in the opposite direction, says ACEA. While opening the Japanese market to EU dairy products promises benefits to European producers, in the automotive sector - the other area in which the free trade agreement will be important - the benefits are likely to flow the other way. By drawing attention to the fact that under a free trade agreement with South Korea that has been in operation for nearly six years there are still outstanding problems with non-tariff barriers, the organisation emphasises the importance of having procedures to deal with disputes as well as encouraging collaboration in regulatory matters.



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Germany: new emissions testing body mooted

According to Reuters, the German government is considering setting up a new body to test for vehicle emissions. There has been something of a loss of faith in the existing system, and replacing the old body will help to restore consumer confidence, the government hopes.

US: Congress argues about legislation on autonomous cars

Members of Congress have differed over legislation on autonomous cars - but, this being the US, the arguments go beyond the rules themselves: it's a matter of who should be doing the legislating, states or the Federal authorities. Democrats argue that it's NHTSA that should be making the rules, while Republicans have a different take. The prospect of cars that stop working at state borders is not one that will help the prospects for the industry.

Read more, if you want to, from Reuters here.

US: New dealer protection law in Florida

Automotive News reports the enactment of a new law in Florida to give dealers (enhanced, presumably) protection in two important areas - the frequency with which manufacturers can require them to upgrade their premises, and the application of sales-effectiveness criteria, both matters of great importance to dealers against which they would be hard-pressed to find any protection in UK law.

US: Dealers take action against second Tesla store in Virginia

According to Automotive News the Virginia Automobile Dealers Association has received consent from a judge to proceed with an appeal in its attempt to block Tesla from opening a second store in the state. The appeal is against Virginia DMV Commissioner Richard D. Holcomb's decision to allow Tesla to open the second outlet, and the judge (Judge Gregory Rupe) decided that the VADA has standing to bring the appeal.

Three Bosch managers targeted as German diesel probe expands

Automotive News reports (from Bloomberg) that a German investigation in Stuttgart has focussed on three employees of Robert Bosch who are considered to have been involved in the development of cheat software for VW group. All are managers in the company. Bosch is also being investigated by the U.S. Department of Justice. German authorities in Braunschweig are also carrying out investigations into that the car manufacturer has done.



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McLaren CEO says post-Brexit UK must try to influence EU car rules

Automotive News Europe reports remarks from McLaren Automotive's Mike Flewitt about the importance of retaining the benefits of having uniform technical legislation for vehicles after the UK leaves the European Union. Failure to do so might lead to having to comply with two sets of rules - exactly the sort of problem that we solved by joining the European Community, especially with the completion of the single market in 1992.



Special rules on emissions for low-volume manufacturers, of which the UK has more than other EU countries (perhaps more than all of them put together), are seen as a particular issue. Will the "rump" EU be as keen to give McLaren and similar companies a good deal after we have gone? That's a rhetorical question.



He also elaborated on steps that the company is taking to mitigate the effects of immigration controls, boosting its graduate recruitment scheme.



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Bank of England on risks of car finance crash

The Bank of England publishes its Financial Stability Report every six months. The June 2017 edition has just come out, and in it there is a very interesting and somewhat worrying analysis of the car finance market (starting on the page numbered 18 in the linked document, which is the relevant chapter of a prohibitively extensive publication).

What sounds worrying is that there is so much PCP finance around these days. Back in the days when dealership car finance was all about standard hire-purchase agreements, things would have looked better, but Personal Credit Purchase schemes - although they are a form of hire purchase - are different. The cost to the consumer is kept down by fixing a value for the car at the end of the loan period (the car being the subject of the loan, not money). When the term finishes, of course, the consumer can choose to make a balloon payment and take ownership of the car, or hand it back: and if the used car market is weak at that point, then first of all the consumer will prefer not to make the payment because it will be on the high side compared with what the car is worth, and secondly the dealer won't be delighted to get the car back in satisfaction of the credit agreement because it won't be worth enough to wash its face.

Although dealership finance has gone up by some 20 per cent a year since 2012, increasing by £30 billion over that period, it still accounts for a relatively small part of banks' lending. So although 85 per cent of car sales use dealership finance, mostly PCP, the Bank estimates that even a 30 per cent shortfall in residual values would have relatively little impact on banks' capital ratios. In addition, car finance being secured on the car is inherently less risky than other types of consumer finance, so the sector should be pretty stable - and the Bank acknowledges that arrears are less of a problem in motor finance than other areas. Of course they are - the finance company takes the car back if the arrears get too high.

But it strikes me that the same might have been said of mortgage lending before 2008. And we live in times which are, to say the least, uncertain.

Postscript: today (30 June) Bloomberg highlights the growth in vehicle finance in Europe, remarking that the continent is heading down the road already taken by the US. Explaining how securitisation deals - finance companies selling off their consumer debt - are to a large extent based on residual values, the Bloomberg piece makes me wonder about the BoE's assessment that even a substantial fall in the used car market would have little effect on banks' capital ratios. Perhaps the point is that it's not the impact on capital ratios that we should be worried about.

Also, a day earlier, the Telegraph reported that the FCA had been consulting with US authorities to gain a better understanding of the emerging problems, given the fact that the Americans have more experience of the impact of this type of secured lending in the automotive sector.

Snap Queen's Speech

Following the snap election, a snap Queen's Speech - with little of direct, specific interest to the motor industry in it, but a lot about Brexit. More on that another time. Much more on that, at other times, I should say.

What there is to interest the motor industry is a proposed Civil Liability Bill, which will bring down the cost of insurance premiums by reducing the cost and quantity of whiplash claims. It will introduce a new fixed compensation tariff for whiplash injuries for up to two years, and will ban offers to settle claims without supporting of medical evidence.

There will also be an Automated and Electric Vehicles Bill, which will require the installation of charge points for electric vehicles at motorway service areas and large fuel retailers. It will also include a set of common technical and operational standards which will ensure that charging points are convenient and work seamlessly right across the UK.

Compulsory motor vehicle insurance will also be extended to cover the use of automated vehicles, to ensure compensation claims continue to be paid quickly, fairly and easily, in line with longstanding insurance practice.

BMW win appeal in Technosport trade mark case

Almost exactly a year ago, on 17 June last year, we reported a case in the Intellectual Property enterprise Court in whcih BMW had sued a company called Technosport London for trade mark infringement and passing off. At the time, we questioned why such a case might even have got to court, but noted that the defendant won on one count of trade mark infringement although it lost on three and on passing off. Now BMW has won its appeal on the claim on which it lost first time round.

Bayerische Motoren Werke Aktiengesellschaft v Technosport London Ltd & Anor [2017] EWCA Civ 779 (21 June 2017)

EU: Lighting manufacturers penalised for cartel

The European Commission has imposed a €27 million penalty on two suppliers of car lighting for operating a cartel, contrary to Article 101 of the Treaty on the Functioning of the European Union. Automotive Lighting and Hella have to pay €16.3 and €10.4 million respectively for their part in the cartel. A third cartel member, Valeo, escaped a financial penalty, which the Commission indicated woulod have been over €30.5 million, because it revealed the existence of the cartel.

Reuters says that the parties discussed quotes for tenders and negotiation strategies and exchanged information on the status of negotiations with customers regarding price increases.

The EU press release is here.

Amazon plan to disrupt the car market

So, as reported in Auto Retail Network and lots of other places, Amazon are planning to enter the car market using the UK as a guinea pig (or, perhaps, proof of concept). Maybe the time is ripe with the country set to distance itself from the system of competition law that allows vehicle manufacturers and importers to restrict supplies to authorised dealers. The block exemption has not been popular in the UK, initially because it enabled suppliers to charge higher prices here than on the continent (something tells me that the sort of mindset that caused car buyers to head off to Belgium or The Netherlands back in the eighties might well have led them to vote leave in 2016 - but it's no more than a feeling). Maybe Brexit will be an opportunity to shake up what is seen by many as an unjustifiably privileged sector, insulated from normal competitive pressures.

Amazon have tried in a small way to sell cars before (Fiats in Italy: how could that go wrong?). Tesco have tried online car sales for a short time, and there have been other attempts to use ecommerce to cut out the middleman. Further back in history, there was Asdadrive, which emerged in the mid-eighties and made scarcely a ripple - and has disappeared so comprehensively that there's almost nothing to be found on the Internet save for some Companies House records.

It is trite to remark that selling cars is not like selling baked beans. You don't trade in your previous beans when you buy a new can, for a start. There is no continuing servicing and repair requirement, no market for spare parts, no way of adding accessories, no opportunity to sell financial services ("products", as they are weirdly called) as well. (Or, to put it another way, these days the cars are often ancillary to the financial services). For these reasons selective distribution remains the optimal way to service a complicated market, although those complications change over time as service intervals become longer, cars become more reliable, and the chances of effecting an economic repair when a prang occurs tend towards zero. (The bumper is supposed to save the car from damage, but the sensors now mounted in it make replacement prohibitively expensive.) So Amazon might find that they have bitten off more than they can chew, though with sales and service being separated by the block exemption the landscape is different from that which faced Asdadrive. Maybe, as Brexit approaches, this will be seen as an excuse to dispense with the block exemption - a  move that could be dressed up as consumer benefit, potentially a popularist aspect of leaving the EU. And another chicken that would come home to roost a few years later, I suspect.

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Everything you ever wanted to know about the emissions scandal (in French)

I make no apology for saying that the emissions scandal has left me nonplussed, often not knowing quite how to react to the latest news, what to write, what to think. The sheer volume of news on the subject is daunting. I was therefore pleased to find a newspaper which has conveniently collected together all its stories on the topic. Unfortunately it's Le Monde - perhaps there is also an English one, although I trust Le Monde a bit more than most English papers. If you wish to see what Le Monde has published on the subject, here's the link.

US: EPA suspected FCA defeat device in 2015

The EPA reportedly told Fiat Chrysler that it suspected that some of its vehicles had defeat devices as long ago as November 2015, according to reports in Automotive News based on recently-disclosed emails. Does that even count as news, I wonder? The emails do.

Meanwhile, AN reports that the Department of Justice has announced that approval of FCA's software fix to deal with emissions problems may take months. It also reports that the same institution that identified the VW problem says that FCA diesel vehicles emit up to twenty times as much pollution as they should. The manufacturer faces a civil suit from the government which it is estimated could cost it as much as $1 billion - and it is not exactly flush with cash.

Last month, a lawyer for FCA told a US court that a software fix could overcome the problem.

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Dieselgate: extended warranty but no compensation for VW owners

The European Commission has announced that VW is offering an additional two-year warranty but nothing in the way of compensation for owners of cars affected by the Dieselgate scandal. Reports in Just Auto indicate that this has been agreed with the European Commission's consumer affairs directorate, but it seems that it is only an offer - and the Commissioner, Vera Jourová, remains intent on persuading the manufacturer that it should offer compensation, while respecting the fact that there is no legal basis on which they can be required to do so. Regulation (EC) No 2006/2004, which is the EU legislation most obviously engaged in the matter, deals with co-operation between Member States on consumer matters. (Presumably owners of VW diesels did not vote Leave.)

Reuters also have the story.

EU set to scrap tariffs on Japanese car parts

The European Union is ready to propose immediately scrapping import tariffs on most Japanese car parts in trade negotiations now under way, according to the Nikkei daily quoted by Reuters on 15 June. In return the EU will press Japan to reduce or abolish tariffs on agricultural products - a step which would face considerable opposition in Japan, demonstrating rather nicely the sort of thing that goes on in international trade negotiations. A tempting offer, with a difficult quid pro quo in return - there's going to be a lot of this going in as Brexit talks get under way, starting on Monday 19th.

The Nikkei goes on to say that Japanese and European negotiators are continuing talks, which began in 2013, in Tokyo to reach a broad deal on signing an economic partnership agreement in early July. Such a deal is one of the key goals of premier Shinzo Abe's "Abenomics" stimulus programs and growth strategy to revive the country's stagnant economy. The EU accounts for about a tenth of Japan's foreign trade, and at present the EU imposes a tariff around 3 to 4 per cent on parts and 10 per cent on cars imported from Japan.

Consumers from UK and NL get together to claim over Dieselgate

Automotive News reports that consumers from the UK and Netherlands are combining in what it suggests could become a Europe-wide action to claim compensation from VW over the emissions scandal. The report says that 220,000 owners are involved. The day before, the same source had reported that 160,000 Dutch claimants were about to sue.

Germany: Porsche emissions under scrutiny

The German transport ministry has ordered the KBA to examine emissions of VW unit and sports car maker Porsche, a ministry spokesman told a news agency following a critical media report.

Just Auto

India: GM dealers may sue manufacturer in US

GM dealers in India, facing the cataclysmic event of the manufacturer's retreat from the market, are contemplating a class action in the US courts. They are aggrieved - of course! - that they are not being adequately compensated for the point of sale investments they made before GM decided to pull out.
Just Auto

Tesla direct sales banned in Louisiana

Louisiana is the latest state to ban Tesla's direct sales to consumers, according to Automotive News, while in Michigan the manufacturer has issued subpoenas in a legal action to challenge the state law which has the same effect.

US: Dieselgate monitor to take on more staff

Automotive News reports that the court-appointed monitor "may" be tripling the number of experts supervising the manufacturer. Perhaps this is the last area in which experts are still regarded as a good thing.

US: Toyota goes open-source for infotainment system

Automotive News reports that the Japanese manufacturer is using Linux-based open-source software for the infotainment system in its latest Camry model. The "flavour" of Linux involved has been developed by a consortium called Automotive Grade Linux (AGL) which aims to develop a software platform for connected cars.

US: Dieselgate class action against Daimler given green light

Not aggrieved owners this time: a class action brought by investors against Daimler and several senior executives can proceed following a decision by a Federal judge, according to Automotive News. And Bloomberg reports that Daimler has been looking for criminal defence lawyers to act for key executives in connection with the same matter.

Germany: Audi faces cheating accusations

According to Automotive News, Audi faces accusations of emissions cheating for the first time in its home country. The government says that the manufacturer cheated emissions tests with top-of-the-range models. Bild, the tabloid newspaper, has said that the government has detected illicit software and demanded the recall of diesel A8 and (apparently) A7 Sportback models to remove it. Following the accusations, prosecutors in Munich have widened their investigation of Audi to examine sales in Germany and elsewhere in Europe

Porsche denies misleading investors, and other Dieselgate news

Porsche SE, the holding company which owns the majority of shares in VW, facing law suits from investors and investigations arising from Dieselgate, investors about emissions cheating at Volkswagen, has denied misleading investors. Meanwhile Vfl Wolfsburg, the football team owned by Volkswagen Group, retained its place in the Budesliga but still faces cost cuts next season. Its owner no doubt continues to face other calls on its finances.

EU: Council agrees draft type approval rules for cars

Ministers have agreed new draft rules for approving cars, despite resistance from Germany. As expected, the new rules will give the European Commission the power to fine non-compliant manufacturers directly.

Germany: Prosecutors confirm Bosch under suspicion

German prosecutors have confirmed that they are investigating whether employees of Robert Bosch, already implicated in VW's emissions test cheating, were involved in similar activities at Daimler. A investigation at Daimler's premises was paralleled by one into Bosch employees' activities.

Automotive News Feed.

US: Now GM is accused of cheating on emissions

Automotive News reports that GM is now facing accusations of using a defeat device to cheat emissions rules, this time on pick-up trucks. It becomes the sixth manufacturer to be accused.

US: California government unimpressed by VW's plans

VW's plans to promote clean vehicle infrastructure, "Electrify America", a major part of the settlement of its difficulties with the US authorities, has been criticised by the authorities in California. They say that it lacks detail and fails to do much for disadvantaged areas. It will also not do enough to promote hydrogen cell technology.

Automotive News

Update: on 30 June AN reports that VW has responded to criticism, setting out its plans to help disadvantaged neighbourhoods.

Italy: Dieselgate class action seeks compensation from VW

Another country to add to the list of those in which disenchanted VW owners are seeking compensation: a class action has been launched in a court in Venice. As usual, the story in in Automotive News.

Dealer faces jail for fraudulent trading

Car Dealer Magazine (repeating a report from the Southern Daily Echo) tell of a second-hand car dealer from Southampton who has been convicted of many counts of clocking, falsifying warranties, failing to give refunds, failing to deliver vehicles, giving false descriptions and forging documents. According to the report, he took a million miles off the odometers of 17 cars - and there were many more in addition.

EU looks into Slovak aid for Land Rover factory

The legality of Slovakia's plan to grant €125 million to Jaguar Land Rover to support a new factory in the country is being investigated by the European Commission. The plant will build up to 300,000 cars annually and is due to open next year. The European Commission's press release is here.

US: FCA sued over emissions cheating

Automotive News reports that FCA has been sued by the US Department of Justice, which accuses it of using software to defeat emissions controls.

France: VW face prosecution and possible substantial penalties

The Direction générale de la concurrence, de la consommation et de la répression des fraudes, France's consumer fraud watchdog, believes Volkswagen made €22.78 billion from cars sold in the country with illegal defeat devices, Le Monde reports. The French paper cited an unpulished file sent to prosecutors by the DGCCRF. It also reported that diesel emissions test-cheating saved VW €1.52 billion euros that it would otherwise have had to invest to comply with regulations.

The figures for sales and savings could ultimately be used by a court to set fines against VW, were the company to be convicted of the fraud charges that the Paris prosecutor is pursuing. The DGCCRF calculated that VW could face a penalty, capped at 10 percent of annual revenue, of €19.73 billion.

Reuters

US: approval for fix for older VW diesels

Automotive News tells us that 84,000 older VW diesels can now be modified to deal with emissions problems, after the EPA and the California Air Resources Board approved a fix.

US: FCA files proposed "fix" for diesel problems

According to Automotive News, Fiat Chrysler have filed details of a solution to their Dieselgate problems. The  the company predicts the proposals will resolve negotiations with the Justice Department and other U.S. regulators over emissions levels.

US: Hyundai, Kia in trouble over recalls

NHTSA is looking into whether nearly 1.7 million recalls for engine problems, undertaken after a South Korean whistleblower brought concerns to the authorities' attention. If the agency determines that the recalls were not carried out promptly enough, or did not cover sufficient vehicles, the manufacturers could face substantial financial penalties.

Automotive News

China: Audi settle dispute with dealers

Automotive News reports that the German marque has settled a dispute with Chinese dealers. Audi sales had fallen after the dispute, about how cars made in conjunction with local  manufacturer SAIC, should be sold.

Cloned cars on eBay

The BBC reports that cloned stolen cars are being sold on eBay in Manchester (are other areas immune? I doubt it). The main lesson, it seems, is not to pay cash on collection - which is not how eBay is supposed to work anyway.

The Power of an Oxford Comma

The Oxford (or "serial") comma is often considered to be of interest only to the worst sort of pedant (though "pedant" isn't actually a bad thing to be at all, not on the proper meaning of the word). It can however be crucial to the interpretation of a piece of writing - as a company in Maine found out recently. Relying on a statute which exempted from an obligation to pay overtime to employees engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution" of certain perishable products, it did not pay overtime to employees engaged solely in distribution. The District Court decided that distribution was a "stand-alone exempt activity", but the Court of Appeals for the First Circuit found that the lack of a serial comma to mark off the last listed activity meant that the provision was ambiguous. The state's default rule of construction required the court to resolve the ambiguity in favour of the beneficiaries of the exemption, namely the drivers. So, for want of an Oxford comma, the drivers got their overtime payments.

It wasn't that the court decided that the absence of the comma was in itself determinative: and I think it would clearly have been wrong had it so decided. To give the words the meaning contended for by the employers, it would have been necessary to obey the rules about parallel construction, inserting a conjunction (in this case "or") between "storing" and "packing", to make clear that "packing for shipment or distribution" was one activity. But how often do you see that rule obeyed?

Thanks to Thomson Reuters Legal Solutions Blog for alerting me to the story.



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ASA rules on "EXTRA 50%off all oils" advertisement

In an email on 25 November 2016, Euro Car Parts advertised "EXTRA 50% Off All Oils" but the complainant argued that Castrol Engine Oil Edge FST 4ltr was not 50% cheaper. Euro Car Parts argued that the oil was priced at £64.32 for two weeks before the four-day offer and for six weeks after it ended. The ASA took the view that consumers would understand the claim in the advertisement meant that they would be able to purchase oil at a discount from the usual selling price, and the word "EXTRA" would suggest to them that a discount had already been applied so the promotion gave an additional 50 per cent discount. Given that the Castrol oil had been offered at £64.32 only for two weeks before the promotion, and otherwise had sold for between £36.49 and £46.99 during 2016, the higher price could not be called the "usual selling price". Moreover, the use of the word EXTRA indicated that the total discount was more than 50 per cent, which was not the case. The complaint was upheld

Euro Car Parts Ltd - ASA | CAP:



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BMW (UK) Ltd - ASA Code of Advertising Practice ruling

In BMW (UK) Ltd - ASA | CAP two complaints were investigated by the ASA, both of which were upheld. The ruling concerned a national press ad for the BMW 760Li xDrive, seen in the Telegraph Magazine on 14 January, featured the headline claim "LUXURY JUST LOST ITS MANNERS." Further text stated "Introducing the BMW M760Li xDrive. M Performance TwinPower [sic] Turbo technology. 6.6 litre V12. 610 hp. 0-62mph in 3.7 seconds. For some, the climb to the top is quicker".


The complainant alleged that BMW had made speed the main message of the ad, contrary to Rule 19.4 of the CAP: and, noting that the Highway Code prohibited driving without reasonable consideration for other road users, also contended that the claim "Luxury just lost its manners" condoned irresponsible driving contrary to Rule 19.2.

The ASA upheld both complaints and told the advertiser to ensure they did not make speed or acceleration the main message of their future marketing communications. The ASA also told them to ensure that their ads did not condone or encourage driving without consideration for other road users.

For the full text of the Council decision, go here.


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Compliant fleets may face charge to help DVSA target unsafe vans

In January last year, the Department for Transport launched its Consultation on reforms to the MoT testing system. The consultation period ended in April 2017, and in its submission the Freight Transport Association has called on the government to ensure the cost of enforcement against owners of dangerous or unroadworthy vans is charged to those not complying with the law, rather than spreading the cost across the entire sector. The consultation asked whether the costs of enforcement against unsafe vans out on the roads should be charged to van operators on top of the MOT fee.

The FTA's press release says:

FTA’s membership supported the move to charge the industry, but is demanding that consideration is given to the application of this new “enforcement levy” only to those whose vehicles did not pass their MOT at the first attempt.
“FTA members who operate vans maintain their vehicles properly and many expect nothing less than a 100% first time pass rate at MOT,” says James Firth, FTA’s Head of Licensing Policy and Compliance Information. “The proposed switch of funding to the sector is undoubtedly the right move from the point of view of holding operators to account for their vehicles. However, many of our members are frustrated that, while they are investing in maintaining their fleets in a roadworthy condition, their competitors know that, in the absence of effective enforcement, they can run their vehicles in a poorly maintained, dangerous state.
“The responsibility for the roadworthiness of a vehicle sits firmly with the operator,” he continues, “but it is wrong to assume the rest of the sector will prop up businesses that fail to adhere to the high standards that FTA members expect. We urge government to take the opportunity to apply costs only to non-compliant operators whose vehicles do not pass the MOT at the first attempt.”
With 46.8% of vans failing their MOT test at the first time of presenting, FTA members are also concerned about the practice of using the test as a diagnostic tool, rather than ensuring that regular maintenance programmes are upheld across the industry. Firth continues:
“The MOT test is not intended to highlight areas for improvement, but to ensure that safety standards are being maintained at a continuous level. Many of the vehicles which feature in the failure stats could have been given a temporary fix to pass the test, but could easily deteriorate to a dangerous level shortly thereafter, with no follow up inspection. By ensuring that the enforcement levy falls on those requiring a retest, FTA is confident this would be an additional financial incentive for all van operators to maintain standards and strive for a first time pass, every time.”
The Van Excellence Accreditation Scheme, run by the FTA in partnership with some of the country’s leading van operators, includes a Code of Practice for operators, outlining “what good looks like” and helping more operators to operate to nationally recognised best practice standards. To find out more about the scheme, and how to join, please visit www.vanexcellence.co.uk

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Level 3 Autonomous cars need change in law

With Audi poised to launch the first production car capable of Level 3 autonomous driving (the A8, due later this year), and Mercedes proposing a lower level of automation (a "very sophisticated level 2 system, according to reports") in the new S-class at about the same time, the state of the law on autonomous cars (or lack of it) becomes of pressing importance. A new law in Germany await to approval of the upper chamber and is expected to become law in weeks.



The ability of countries to adopt suitable new laws is governed by the Vienna Convention on Road Traffic. The 1968 Convention was amended with effect from 23 March 2016 to permit levels 3 and 4 of autonomous driving. Previously Article 8 stipulated that “Every driver shall at all times be able to control his vehicle or to guide his animals.” The new paragraph inserted into Article 8 provides:

5bis. Vehicle systems which influence the way vehicles are driven shall be deemed to be
in conformity with paragraph 5 of this Article and with paragraph 1 of Article 13, when
they are in conformity with the conditions of construction, fitting and utilization according
to international legal instruments concerning wheeled vehicles, equipment and parts which
can be fitted and/or be used on wheeled vehicles* 

Vehicle systems which influence the way vehicles are driven and are not in conformity with
the aforementioned conditions of construction, fitting and utilization, shall be deemed to be
in conformity with paragraph 5 of this Article and with paragraph 1 of Article 13, when
such systems can be overridden or switched off by the driver.

The five levels (six, if you include level zero, which is what we've all been doing until recently and most of us still are doing) are defined by the Society of Automotive Engineers (SAE) in J3016, Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems. The classification is available here on Wikipedia and the levels of autonomy are usefully paraphrased as "hands on", "hands off", "eyes off", "mind off" and "wheel optional". Current Tesla models (using so-called "Autopilot" technology) are at level 2 (notwithstanding which some drivers seem to have assumed "Autopilot" meant level 5). The SAE calls Level 3 "conditional automation". Level 2 is referred to as "partial automation".



Automotive News Europe - Audi's A8 self-driving tech depends on regulatory changes.



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Dieselgate: $4.3 billion in U.S. fines and penalties

Several sources report that a Federal judge has imposed the criminal penalty mooted in January for VW importing 590,000 illegally polluting diesel vehicles into the US from 2009. A plea agreement, whereby VW admitted conspiracy, obstruction of justice, and introducing important merchanidise into the US by means of false statements, required the car maker to pay $2.8 billion (£2.2 billion) in fines and $1.5 billion (£1.2  billion) in civil penalties: it also demanded that VW continue to co-operate with Federal and state investigators. An independent monitor would be appointed for three years, and other conditions were to be imposed to ensure compliance in the future. Without the plea agreement, the US government said that the manufacturer faced potential fines of between $17 billion and $34 billion.

US District Judge Sean Cox, in the District Court for the Eastern District of Michigan, has now confirmed the settlement, while expressing the hope that continuing investigations will turn up more information about where responsibility lay, leading to the prosecution of the individuals concerned. He expressed the view that it was not the management of VW who would suffer but those who labour to make the car, who would be denied bonuses because of the cost to the company of dealing with the fraud.

The Department of Justice has appointed former US Deputy Attorney General Larry Thompson as the independent monitor.

VW continues to buy back affected models, and faces civil litigation in the US and criminal investigations and claims elsewhere. Seven executives also face charges in the US.

Automotive News

Car Dealer Magazine

Reuters

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EU to propose linking CO2 emissions for trucks, cars to road toll charges

Automotive News Europe reports that the Commission will shortly publish proposals to make vehicles pay higher road toll charges according to the amount of carbon dioxide they emit. It will be the first time that the EU has intervened in the road tolls field except for trucks, and is expected to set out EU-wide principles such as the idea that drivers should pay a toll related to the distance travelled, and including buses and coaches. Time-based charges, such as those in Germany, will not be permitted, and tolls will have to avoid discriminating against foreign drivers - another issue which Germany has faced. It aims to be revenue-neutral, so more-polluting vehicles will be charged more while cleaner ones will face lower tolls.

ACEA has indicated that it supports differential road charging provided it promotes low emissions in real conditions of use, and fair competition between types of vehicles. To achieve an optimal result, ACEA argues that the real emissions of the complete vehicle combination - including tyres, weight and aerodynamics - must be taken into account. But the proposals will not be universally welcomed - hauliers will oppose the phasing out of time-based vignette systems which are cheaper to operate than distance-based charges, which will require new onboard equipment.

The proposals will not mandate the hypothecation of revenues from tolls, but will include disclosure requirements to it will be clear where the money raised is spent.

The proposals are expected to be published on 31 May.

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One in six drivers believe running a red light is legal

A survey for Admiral, the insurer, reported by Fleet News, reveals alarmingly that one in six drivers believes that it is legal to run a red light. Admiral's spokesperson says they were shocked at this, "when in fact it could land you points on your licence." I'd have thought an insurer would be thinking about other consequences.

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Scrappage scheme for diesels mooted by government

The Financial Times reports that the government is considering a state subsidy of £1,000-£2,000 to encourage motorists to trade-in older, more polluting diesel vehicles for newer, cleaner models. The scrappage scheme is expected to form part of the government’s forthcoming clean air strategy, due to be published on 24th April - but that's another story.
[Editor's note: the day after this news became public the general election was called and the potentially disastrously unpopular idea of taking action against diesel cars was shelved until after the election - or so the government thought.]

FCA investigates 'irresponsible' car loans

The Financial Conduct Authority is investigating the car loans market, concerned that borrowers do not have to show that they can afford repayments. Basic credit checks may be supplemented by the sort of tests usually associated with mortgages, if the FCA considers it necessary. The amount being borrowed to finance new cars has trebled over the past eight years. The FCA's statement is in its business plan for 2017-18 - on page 74, if you are interested enough.

The Telegraph reports that the Bank of England is concerned that the trend could precipitate a financial crash if not brought under control. The paper also reports that an investigation performed by its journalists revealed that sales people were encouraging customers to spend their entire disposable income on 'pay monthly' deals for cars worth more than they earned in a year. Experia also warn that their data suggest that households with 'stressed' incomes account for a large part of the growth in 'pay monthly' car purchases.

In 2014 the FCA made affordability checks for mortgages more stringent, requiring more information about spending, amid fears that borrowers were over-stretching themselves to get on the housing ladder, and the same sort of checks might now be extended to car loans. The FCA notes that there may be 'a lack of transparency, potential conflicts of interest and irresponsible lending in the motor finance industry.'

See also Motor Trader's report, which in turn refers to an interesting posting on the Bank of England's "Bank Underground" blog (who'd have thought?) about the motor finance scene.

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The Brexit White Paper

The grandly-named Great Repeal Bill White Paper (officially entitled "Legislating for the United Kingdom's withdrawal from the European Union") was published by the government on 30 March. It sets out "the government’s proposals for ensuring a functioning statute book once we have left the EU". Which is just as well, because without the EU the statute book could have some big holes in it. Commercial and consumer law, company law, intellectual property law, construction and use of motor vehicles - the list goes on.
It covers plans for converting existing EU law - the acquis, as EU lawyers call it - into UK law, making any idea that Brexit is about regaining sovereignty illusory, at least in the medium term, and explains how "corrections" will be made to the statute book. It also deals with the repeal of the European Communities Act 1972, which is probably much the easiest part of the process.
The upshot is that business will find the legal landscape much the same after Brexit as before. The Great Repeal Bill will convert all EU laws that apply to the UK into domestic laws - the only practicable approach to the problem. It won't make substantive changes, except where some amendment is necessary to ensure that the law functions properly.
So, sovereignty consists of accepting the acquis and reserving the right to change once the UK has regained its "independence". What about the vexed question of the supremacy of the Court of Justice? The White Paper promises that historic decisions of the Court of Justice will be given the same status as decisions of the Supreme Court. That much is consistent with adopting the acquis into UK law, as any other approach would be to change the law. Lower courts could not overrule Court of Justice decisions, and the White Paper says that the government "expects" the Supreme Court to take a "sparing approach" to departing from existing case law - in much the same way as the Supremes deal with their own (and the House of Lords') existing case law. But to have the government tell us what it expects the judges to do feels very uncomfortable, especially when the judiciary has already been denounced as "enemies of the people" by the pro-Brexit press.
The necessary primary legislation will be introduced in the next Parliamentary session, and will take full effect the day the UK leaves the EU. The power to "correct" legislation by statutory instrument will have to come into operation before then. The government estimates that between 800 and 1,000 statutory instruments will be needed, and expresses its intention to strike the right balance between parliamentary scrutiny and speed. Notwithstanding that the whole purpose of Brexit was to restore Parliament's sovereignty and ensure that legislation be properly scrutinised in future, it is paradoxical that a compromise should be necessary - a compromise in which speed will almost certainly have to take precedence over scrutiny. At least the government promises that the power to make corrective secondary legislation will be limited in time.

Welsh car dealer fined £12,000 for offering to supply a dangerous vehicle - Car Dealer Magazine

Car Dealer Magazine reports that a dealer in Wales has been fined £12,000 (reduced from £18,000 to recognise that the dealer had pleaded guilty) under the General Product Safety Regulations 2006 for supplying a Renault Clio in dangerous condition. The handbrake did not work. More to the point, perhaps, is that the company had previously been cautioned for similar offences and had been given advice (at another site) about the importance of all vehicles it offered being safe.

The Court was told that safety checks were carried out by staff members who had no formal mechanical training or qualifications.



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The Road Vehicles (Registration and Licensing) (Amendment) Regulations 2017

The Road Vehicles (Registration and Licensing) (Amendment) Regulations 2017 deal with the important matter of sharing vehicle registration information with other countries, specifically other EU Member States. It empowers the Secretary of State, through DVLA, to provide information to the authorities of another Member State about the registered keeper of a vehicle registered in the UK, along with certain other information on the register. The information must be requested to facilitate the investigation in the other Member State of an alleged traffic offence relate to road safety which took place after the Regulations came into effect.

The Secretary of State is also designated for the purpose of requesting the same information from other Member States where offences are committed in the UK.

The offences to which the Regulations apply are drink driving, driving while under the influence of drugs, failing to stop at a red traffic light, failing to use a seat belt of child restraint, failing to wear a crash helmet, using a hand-held communication device while driving, speeding, and using what is ominously called a "forbidden lane".

The Regulations implement (or "transpose") EU Directive 2015/413 of the European Parliament and of
the Council of 11th March 2015 facilitating cross-border exchange of information on
road safety related traffic offences. This directive replaced  Directive 2011/82/EU which the Court of Justice found had been made under the wrong Treaty power (justice and home affairs), which allowed the UK (and Ireland and Denmark) to opt out of it.

The Regulations were made on 6 April and come into effect on 6 May 2017.



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USA: class action for disappointed Shelby Mustang owners

Consumer law firm Hagens Berman is putting together a class action for disappointed customers for Ford's Shelby GT350 Mustang (2016 model), which far from being the exciting track car that Ford advertised is said to suffer from overheating problems. Sustained high-speed driving (which is what a track car is supposed to be for) is more than the transmission and diff can cope with, and the car goes into "limp mode" to prevent damage. Limping is, I guess, the antithesis of what you buy a track car for.

The problem can also arise when the cars are driven on the road. It stems, the law firm contends, from the absence of coolers for those parts of the drive train. Base and Tech models are affected.

Hagens Berman's page about the claim is here.

USA: Legal settlement about recalled used cars challenged

A legal settlement reached on 8 December last year between the Federal Trade Commission and GM and two used-car dealers is being challenged by consumer rights activists in court in Washington DC. The settlement is alleged to allow cars to be sold as 'safe' or 'certified' even if it has defective air bags, faulty ignition switches or other potentially lethal problems, provided the used car dealer discloses that the vehicle may be subject to a pending safety recall.

The papers filed at the Federal Court by Consumers for Auto Reliability and Safety, Center for Auto Safety and U.S. Public Interest Research Group, Inc., are available from here. See also the article on the fairwarning.com website, here.

The Road Traffic Act 1988 (Motor Racing) (England) Regulations 2017 (SI no 390)

These regulations deal (as the title suggests) with motor racing events. For a race, or a trial of speed, between vehicles lawfully to take place on a public way, it needs a permit from a motor sport governing body and a motor race order from the relevant highway authority. Section 12 of the Road Traffic Act 1988 makes it an offence to promote or take part in an unauthorised event, but sections 12A to 12I (inserted by the Deregulation Act 2015 - deregulation clearly does not mean reducing the sheer volume of legislation) provide a mechanism for getting the necessary authorisation. The present regulations specify the Motor Sports Association and the Auto-Cycle Union as the governing bodies which may issue permits.

USA: VW plead guilty to emissions offences

Law 360 reports that VW has pleaded guilty in a federal court in Michigan to three criminal charges arising from Dieselgate, and agreed to pay $4.3 billion in criminal and civil penalties. The charges were counts of conspiracy to defraud the United States, wire fraud and violations of the Clean Air Act.

Further coverage of the story is here, here, and here.

Hybrid patent wars

In the US, Ford is under investigation by the International Trade Commission following a patent infringement complaint by Paice LLC (the name an acronym for Power-Assisted Internal Combustion Engines), a hydrid technology company based in Maryland which owns what are rated as four of the most influential hybrid technology patents, and the Abell Foundation, a charity that supports progressive start-up businesses and which co-owns the patents. They allege that the vehicle manyfacturer is importing hybrid electric vehicles and components that infringe their patents. Section 337 of the Tariff Act 1930 prohibits the import of infringing products, and is often used by patentees as an alternative to litigation - although Paice have been down that road too a couple of years ago, and their claims were thrown out.
The investigation could result in Ford being prevented from shipping Mexico-made cars into the USA. As if making cars in Mexico was not already controversial enough!
Paice worked with Ford between 1999 and 2004, providing (according to Automotive News) "detailed modeling and component design" - which seems to fall rather a long way short of creating anything for which a patent might be granted. Perhaps the argument is that Paice's work had its own patented technology embedded in it: in any event, Ford eventually decided not to take a licence to use Paice's technology - and instead struck a deal with Toyota to use its technology. Paice has also been embroiled in litigation with Toyota, which it claims received its technology from Ford, and in 2010 Ford reached a settlement with Paice over that technology. Hyundai and Kia are also accused of infringements by Paice. Ford has also filed 25 legal challenges to Paice patents in the US Patent and Trademark Office.
Hybrid vehicle technology is going the same way as mobile phones - soon the companies involved will be spending more time suing each other for patent infringements than making cars.
Griffith Hack report http://db8fgso3tb3n4.cloudfront.net/wp-content/uploads/2013/09/Griffith-Hack-Dec-2010-Report.pdf
Automotive News http://www.autonews.com/article/20170308/OEM/170309777/ford-faces-another-legal-challenge-over-hybrid-technology-patent
Paice press statement http://www.businesswire.com/news/home/20170308006138/en/Paice-Ford-Hybrids-Mexico-Banned-U.S

Air con cartel fined a cool €155 million

Six car air conditioning and engine cooling suppliers have been fined €155 million by the European Commission for taking part in one or more of four cartels in the European Economic Area. 

Commissioner Margrethe Vestager, in charge of competition policy said:“Even though air conditioning and cooling components are not something you see as products, they are very much something you feel. In this case you might also have felt it in your wallet even though temperatures would still be regulated in your car. Today's decision underlines that we do not accept cartels that affect the European market, wherever and however they may be organised."

The six car component suppliers addressed in this decision coordinated prices or markets, and exchanged sensitive information, for the supply of climate control components and engine cooling components to certain car manufacturers in the EEA. These suppliers are Behr (Germany), Calsonic (Japan), Denso (Japan), Panasonic (Japan), Sanden (Japan) and Valeo (France). The coordination took place at meetings, notably through trilateral meetings in Europe in one of the cartels, and through other collusive contacts in Europe and Japan through bilateral meetings, by email or phone. The Commission's investigation revealed the existence of four separate infringements. All six suppliers acknowledged their involvement in the cartels and agreed to settle the case. Denso was not fined for three of the cartels as it revealed their existence to the Commission. Panasonic was not fined for one of the cartels as it revealed its existence to the Commission.

The fines were set on the basis of the Commission's 2006 Guidelines on fines (see also MEMO).

In setting the level of fines, the Commission took into account, in particular, the sales value in the EEA achieved by the cartel participants for the products in question, the serious nature of the infringement, its geographic scope and its duration.

Under the Commission's 2006 Leniency Notice:

• Denso received full immunity for revealing three of the cartels (thereby avoiding an aggregate fine of ca. € 287 million).
• Panasonic received full immunity for revealing one of the cartels (thereby avoiding an aggregate fine of ca. € 200 000).
• Behr, Calsonic, Denso, Sanden and Valeo benefited from reductions of their fines for their cooperation with the Commission investigation. The reductions reflect the timing of their cooperation and the extent to which the evidence they provided helped the Commission to prove the existence of the cartels in which they were involved.

In addition, under the Commission's 2008 Settlement Notice, the Commission applied a reduction of 10% to the fines imposed on the companies in view of their acknowledgment of the participation in the cartel and of the liability in this respect.

Details are set out in the Commission Press Release.

Garel Rhys

I am very sorry to learn of the death, on 21 February, of Garel Rhys, who among other distinctions held the SMMT chair in motor industry economics at Cardiff University. He was superbly well-informed on all matters to do with the industry, and had a gift of being able to present his knowledge in a highly entertaining fashion - no danger of his audiences ever becoming bored. He spoke at least once for Motor Law, at our seminar on the block exemption back in oh, about 1995, when these things were worth talking about. He was worth every penny, and he will be missed by a lot of people in the industry.

Change to advisory fuel rate

HMRC published new rates for the next quarter in the week of 20th February, then made a further change on 27th February. The new rates come into force on 1st March and initially gave the rate for petrol engine vehicles above 2000cc at 20p per mile (down one penny).  The rate for LPG vehicles above 2000cc has increased by a penny a mile from 13p to 14p. Now, the figures show that the petrol rate has increased by one penny per mile rather than fallen as originally announced. The new rate will be 22 per mile.

Takata agree to settle PL claims

Takata, the Japanese airbag supplier facing big public liability claims in the US, has agreed a settlement said to be worth 1 billion dollars. The judge preferred to strike the deal rather than risk putting the company into bankruptcy.

Convictions in 7.5 million mile car clocking conspiracy case

Fleet News (27 February) reports on the convictions of five individuals for conspiracy to commit fraud, arising out clocking activities that wiped an astonishing 7.5 million miles off the mileage of a hundred cars in the possession of the chauffeur services company they worked for. Warrington Borough Council and Halton Borough Council trading standards carried out a three-year investigation before bringing the prosecutions (during which the two boroughs' joint trading standards team was split into two). The defendants were found guilty after a six-week jury trial at Chester Crown Court: two other defendants were acquitted.



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Repair data investigation

The Information Commissioner's Office has been called in by crash repair chain NARS to investigate illegal access to personal data, including estimates for car repairs. The ICO is concerned that personal information was traded unlawfully, and that nuisance phone calls might have been the result.
The ICO's experience is that unscrupulous people access data about car accidents to sell on to marketing firms, according to Mike Shaw, enforcement manager, quoted in Motor Trader.
The ICO has carried out a search at a property in east London as part of the investigation. Motor Trader reports that the person of interest is not a current employee of NARS.
While it is not illegal to sell data such as lists of prospective customers, the data must have been obtained lawfully in the first place and the person selling it on must have the right to do so. The Data Protection Act 1998 contains detailed provisions to protect individuals' personal data, and section 55 makes it an offence to obtain or access personal data unlawfully.
(Motor Trader report 22 February 2017 http://www.motortrader.com/motor-trader-news/automotive-news/information-tsar-probes-repair-estimates-data-breach-24-02-2017?eea=SDdUT1B0TGNYbW5TV1drQ3grdVp0M3l3WXJWTHgxT01LaERTKzd1Tm5ZUT0=&n_hash=38&utm_source=eshot&utm_medium=email&utm_campaign=MT-MT-1947DailyNewsletter)

Commissioner urges Member States to speed up "Dieselgate" investigations

The industry commissioner, saying that VW is not the only manufacturer to flout testing rules, has called on Member States to speed up their investigations into the matter. Renault and Fiat have been strenuously denying that they have been involved in any emissions wrongdoing in France and the US respectively.

Independent tests in France had shown that NOx emissions were higher in real-world driving than in tests. Following the initial investigation which ended in November, the matter has been taken up by the public prosecutor in Paris. The Paris prosecutor has jurisdiction throughout the country in consumer matters.

In the US, the EPA has issued a notice of violation against Fiat Chrysler Automobiles. The notice accuses FCA of failing to notify the EPA that one of its diesel engines ran software that affected NOx emissions. The software is not illegal but should have been disclosed.

German government allows testing of autonomous cars

The German government has approved a draft law which will allow autonomous cars to be tested on German roads.

Government to propose legislation on bills of sale

The government (in the person of treasury minister Simon Kirby) has announced today that it will introduce legislation based on the Law Commission's report on bills of sale, publication of which we reported last September. The minister's announcement is quite an extensive statement of the situation.

4 years to first MoT - consultation announced

We have previously mentioned plans to extend the period before a car needs an MoT, and now the government has launched a consultation on changing the period, from three to four years. The consultation is here and the BBC News website reports the story (with added background) here.

Tesla avoids recall after Autopilot crash death - BBC News

BBC News reports that the NHTSA's report into the fatal Tesla accident in Florida, in which the driver had allowed the car's so-called Autopilot feature to do all the driving for him, does not require a recall. It accepts that the feature is designed only to help the driver, although it says that manufacturers of even semi-autonomous cars must provide warnings suitable for the "inattentive driver". And even if a modification can be done over the air, cars will still have to be recalled, which seems like overkill.



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CMA closes short-term car hire case

The CMA has announced the closure of the case concerning short-term car hire in the EU, which it opened in 2014, co-ordinating the efforts of other national authorities in the EU Consumer Protection Cooperation Network. The CMA says that it has had "co-operative engagement" from the five major car rental businesses, and has secured improved price transparency. Some terms and conditions have also been improved. Although the case is closed, the industry will continue to be monitored to ensure that the agreed changes are implemented.

Suspended jail sentence for 'irresponsible' dealer who sold dangerous car - Car Dealer Magazine

Car Dealer Magazine reports that a dealer who sold a dangerously defective vehicle has been given a five-month sentence suspended for 12 months, and ordered to pay £3,500 costs, an £80 victim surcharge, a £150 fine and £2,000 compensation (you almost expect a 10 per cent service charge after reading that menu of charges) after pleading guilty to three offences, to described as 'trading regulation' offences and the third as a 'product safety' offence. The vehicle in question was a Nissan Navara which had major structural defects and severe corrosion - although the trader had described it as being in 'excellent condition throughout'.

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