Beware complicated website terms and conditions!

Spreadex Ltd v Cochrane [2012] EWHC 1290 (Comm) (18 May 2012) looks at first sight as if it couldn't be of any interest to the motor industry: the claimant is an on-line spread-betting bookmaker. Moreover, it is not a long judgment, the legal principles are not novel, and the defendant acted in person. But the dispute is, in its basic features, one that any business trading on-line could run into.


The company's terms and conditions for the use of its website stated (inter alia) that the client would be "deemed to have authorised all trading under your account number...". Mr Cochrane's account was used, without his knowledge, by his girlfriend's son, who racked up significant losses. The boy's age is not mentioned in the judgment, but it does indicate that he thought he was playing games on the computer, after Mr Cochrane had explained the trading process to him in such terms.

When the claimant tried to enforce the user agreement, however, the deputy judge made several findings that could cause big problems for on-line traders. First, he considered that, largely, the terms and conditions did not form a contract but rather created a framework in which contracts would be made - which, given the nature of the claimant's business, makes sense. Was there, then, a binding contract that pre-existed the contracts for the individual trades? The claimant could not point to one. There was no consideration. The claimant argued that making the on-line trading platform available amounted to consideration, but the judge decided that this was in fact nothing more than the modern equivalent of being ready and willing to enter into a contract by telephone.

Moreover, the Unfair Terms in Consumer Contracts Regulations 1998 would make the pre-trade contract for which the claimant contended unenforceable. The regulation applies to terms which are contrary to the requirement of good faith and cause a significant imbalance in the party's rights and obligations, to the detriment of the consumer. If the pre-trade contract existed, the claimant would have no obligations and the customer would have no rights: but the customer would be liable for any trade on his account, even if it were neither made nor authorised by him. This amounted to a significant imbalance and was contrary to good faith. The judge thought that "a more appealing case" might have been made if the offending term had only applied where the customer's negligence led to the unauthorised trades, but he expressed no view about whether such a term would have been fair.


Finally, the fact that there were four documents which could be viewed by clicking the link to the terms and conditions compounded the matter. The judge thought, surely correctly, that most customers would have proceeded directly to click "agree", even though by doing so they indicated that they had read and understood the documents. Even if a customer chose to look at the documents, the customer agreement alone had 49 closely printed pages of complex legal terms. "It would have come close to a miracle if he had read the second sentence of clause 10(3), let alone appreciated its purport or implications", said the judge.  "This was an entirely inadequate way to seek to make the customer liable for any potential trades which he did not authorise, and is a further factor rendering the second sentence of Clause 10(3) an unfair term."

Website terms and conditions are a trader's one chance to create legal relations with visitors to the site. There is never a guarantee that they might work, but clearly any temptation to include everything but the kitchen sink, not to mention complex legal language, might make them completely worthless. The terms and conditions are intended to manage legal risk, but if they aren't enforceable you might as well not have bothered.

Acceptance certificate defeats claim

Acceptance of goods will often mean that the buyer has lost the right to reject, whether the goods concerned are a tin of beans, a truck, or a Boeing 737. In consumer contracts other factors come into play, but in the general law of contract once you have accepted something you are stuck with it.


In ACG Acquisition XX LLC v Olympic Airlines [2012] EWHC 1070 (Comm) (30 April 2012) the airline leased a new plane and signed an acceptance certificate. Later it turned out to have defects, and the airline served termination and redelivery notices. The lessor argued that the aircraft was airworthy when it was delivered, but  in any case the airline was estopped from asserting that it did not comply with the certificate of airworthiness because of the acceptance. The Commercial Court, unsurprisingly, held that this was indeed the position. The airline had a chance before delivery to inspect the aircraft and have any defects remedied, and it would be inequitable to allow them to argue later that the plane did not comply at the time of delivery.


The case does not make new law, but it does serve to show that you should not sign an acceptance certificate (or anything to the same effect, whatever it's called) unless you are absolutely sure the goods are OK. If you have a chance to inspect the goods, you must take it before you accept the goods and sign to say that you have done so.

German authorities put GM and Peugeot under microscope

Reuters reports that the Bundeskartellamt, the German Federal Cartel Office, is going to look more closely at the proposed link-up between GM and Peugeot. It will undertake a Phase II investigation, which can take three months, as the initial investigation did not allow long enough. The Office is particularly concerned about the effect of the alliance on car parts suppliers.

Brussels conference final session

Guenter Bauer, of Austrian firm Wolf Theiss, discussed the relationship between manufacturers and distributors, which will change dramatically next June. There are also important competition issues surrounding the exchange of information between VMs and dealers, and the obligation on the VM to enforce selectivity criteria and control sales within the network.
He suggested that the abolition of the non-exemption of the location clause (can you cope with all those negatives?) wil have little effect, Few dealers invoke it and the de minimis rule limits its impact. The 30 per cent threshold will have little impact in vehicle distribution. Dealer protection provisions will of course be done away with: the Commission found them to rigid, ineffective and at times counterproductive. This assessment was supported by the Commission's findings in its consultation on unfair byb pcommercial practices, which showed a great deal of concern in the auto sector. The code of conduct, which is in the hands of the representative associations, will deal with dealer protection - and having said that he moved swiftly on ...
What about obligations for dealers to share information with the VM? The VMs clearly have an interest in sales-related information - and to know how the dealer is performing, whether it is doing enough promotional work. However,k the exchange of information carries with it potential legal problems. In a vertical agreement (the food industry has been particularly under the microscope) an information exchange might be indicative of RPM, customer allocation, territories? There are also problems where vertically-integrated importers are competitors of their independent distributors.
He reviewed the decisions on agency set-ups, identifying what factors tend to show that there is an agency relationship and those that suggest otherwise - it remains a tricky matter to set up an agent, certainly not as simple as at first sight it might appear.
If a selective distribution agreement is not enforced, it will create bad will because members of the network will lose sales to suppliers who simply should not have cars to sell. It's a problem that has been going on for years - ever since parallel imports first became an issue.
Andrzej Kmiecik of van Bael and Bellis then spoke about multibranding, which chairman Frank hoped woud be the final word on this topic (though I don't believe he really meant that - and it surely won't be: this one will run and run). To start with he ran through the changes that have taken plpace since Regulation 1400 came into force in 2002. Direct and indirect non-competes were a complete no-no under 1400, but now they are exempted for five years (with the proviso that if the site is owned by the supplier the exemption will carry on for ever). The previous 30 per cent loyalty requirement has chnged to 80 per cent, effectively knocking multifranchising on the head. the permitted requirement for separate sales areas is no longer relevant.
Full non-competes can fall outside Article 101 where the de minimis notice applies - which could be at 5 or even 15 per cent. They are not hardcore restrictions. The supplemental guidelines suggest that there will be no material foreclosure unless 40 per cent of the market is closed off by non-competes. However, the focus on duration suggests that a non-compete over five years might be in trouble.
But self-assessment outside the block exemption is relatively unimportant - given that the regulation gives VMs most of what they want. Fixed term agreements are still not popular in the industry, but a five year agreement has advantages in that the non-compete can run for the duration of the agreement. Having a re-negotiate-after-five-years clause would not serve much purpose - the dealer is unlikely to agree to it (unless wary of losing the franchise altogether?). It could be that the restriction is designed to reduce after five years - from a full non-compete to an 80 per cent one. Surely 80 per cent is to al intents and purposes a full non-compete?
A requirement in a dealer standard which effectively makes it economically unsustainable to sell competing brands will be regarded as an indirect non-compete. But there is lots of uncertainty around this: what, for starters, is a showroom? Does a separate showroom have to be in a separate building? Can it just have a brand-specific entrance? The economic sustainability test is all important here.
Paragraph 32 of the Supplemental Guidelines talks about qualitatative standards specifically designed to discourage the sale of competing brands. In the context of 80 per cent loyalty, such a standard is hardly going to be a problem.
Non-competes can be imposed on some dealers but not all, unless the supplier is dominant, but the dealer cannot be prevented from selling specified brands or only allowed to sell specified competing brands. And in any case the power of larger dealer groups is likely to prevent foreclosure in many markets.
In the spares market, non-competes are still permitted but the Commission is keen to preserve access to spares of competing brands for both authorised and independent repairers. It is strange in that case that they emasculated the block exemption. See Supplementary Guidelines, para 18. A prohibition on the use of parts of matching quality by authorised dealers is no longer a hardcore restriction.
A non-compete imposed on a repairer - not to repair competing vehicles - is in principle block-exempted. If repair markets are brand-specific (contrary to MAN), it is not even a non-compete! 
Next the panel discussion. Chairman Frank had three questions. First, does the new regime meet their needs and expectations? If there are to be particular enforcement issues will there be any particular practice to follow (I hope the meaning of that will become clear later)? And finally is there anything missing?
Klaus Heimgaertner (from ADAC) went first. He deplored the loss of clarity from 1400 to 461. He is anxious about the impact in the future of open platforms, which is only slightly to do with the block exemption. Marc Greven expressed surprise that anyone should worry about clarity - especially lawyers. But the regulators set out to be less prescriptive and to allow undertakings more flexibility.
Frank asked about the wisdom of kicking the whole aftermarket into self-assessment. It condemns the aftermarket to the most conservative position. Marc agreed that this was the case ... the industry is not necessarily keen on being very creative in this area, but some manufacturers are trying out new approaches. That requires self-assessment, and that's something that companies are not used to yet, but from what he hears companies do not see it as a particular problem.
Derek Ridyard (RBB Economics) said he observed convergence between what happens in the motor industry and outside it - and there is little convergence. Why is there so much regulation in a sector where there is so much competition? There is so much regulation where there is little need for it, that companies are inclined to take the safe route and stick to the conservative approach to anything. The modern approach to competition law should be to ask what is the case for intervening in this market? That still does not happen. Intervention is not aimed at a particular theory of harm - it is designed to protect dealers, often unnecessarily. The result is less efficient distribution than need be, depriving consumers of benefits.
Markus Erdmann of VW AG, said that there has to be a good reason to change contracts and that the changes required now are relatively small. It is expensive to change the contracts. Sylvia Gotzen (FIGIEFA) expressed pleasure at many of the features of the block exemption but noted that the small companies that are active in the market cannot deal with competition law problems with the same sophistication that the large companies represented in the conference could. They need certainty and clarity. The link with the type approval scheme is partly the product of problems with the old block exemption - getting DGs Enterprise and Competition to work together so that type approval underpins the block exemption is very important. But she calls for the Commission to remain alert to the need for enforcement - the rules are not working perfectly in practice. The French report shows that there are issues to be addressed. Increasing computerisation means that the technical information does not lie in wiring diagrams - it lies in the software.Obtaining passwords, user names and keys is often a lengthy process. Mar Greven responded by saying that the present situation goes far beyond creating a level playing field between authorised and independent repairers, and remarked that independents often don't use the websites that are made available to convey information to them. Perhaps they go ahead without the information? He suggested that this shows the nature of the debate is changing.
Sylvia Gotzen responded repairers can only function if the competition mechanism works at all levels. The need for technical legislation highlights defects in competition law.


I have done my best to keep up with proceedings today, and to blog the conference accurately (though not comprehensively). If you have any suggestions or corrections please let me know. I hope that (if you weren't in the room) you'll have got the impression that this is a great conference, with well-informed speakers, and you should make sure you come to it next year!

Brussels conference session 3

Alternative distribution models for original parts is the subject of the graveyard presentation immediately after lunch .... a tough assignment for Walter van Overbeek of Houthoff Barouma. This isn't an area where there has ever been much original thinking: not much has changed about the way original parts are distributed since - well, since as long as anyone can remember, I suppose, although having said that Unipart springs to mind as one example of a different approach. It's a case of not fixing something that isn't broken.
Of course, one problem with selling original spares is that you have to supply them to your competitors. the independent repairers who come to authorised outlets are competing for the same repair business, but of course the competition authorities cannot permit the authorised network to refuse to supply them (subject to what was said earlier about working out what is the relevant market, as only if there is a dominant position is there a legal problem.
I am reminded that years ago I regularly advised a factor who, as factors do, obtained supplies of parts wherever he could. Sometimes he would be able to get hold of a large consignment of original parts which he could split into more manageable lots and sell on to the retailers he served. He was frequently accused by the vehicle manufacturers of handling stolen goods, as they were unable (or unwilling) to accept that he could get hold of them legitimately. Once he called me in some alarm as he had the fraud squad after him, at the instigation of one particularly harsh VM.
And that reminds me of another story too - but for now I need to keep an eye on proceedings at this conference, which incidentally is excellent and deserves to have a bigger audience. The change in date from previous years seems to have resulted in a rather smaller attendance.
Presumably VMs will want to preserve selectivity in parts distribution. That should be a given. Within that constraint, what will the future shape of this relatively profitable part of the system take?
It is also fair to assume that VMs will not want to harm existing relationships and sales channels. No point in trying to do something new if in the course of it you destroy something old ... Equally, VMs are not going to want to set up direct sales channels. (No, I would add, because they like to unload their slow-moving stock onto the dealers who are obliged to be repositories for just about whatever the VM decides to make them buy - what in conversation with a dealer association client I would refer to as the P***** headlining syndrome (model name redacted)). I saw a similar problem with L***** suspension struts once.
But the VM isn't going to be able to solve the problem of engineering the ideal size of network by raising qualitative standards. All dealers and ARs will want to be able to handle parts. Quantitative selective distribution, which would have to be limited to parts where the market share was less than 40 per cent, would be possible but terribly complicated. It would require a separate parts distribution agreement, in addition to dealer and AR agreements. There would probably be fewer parts distributors and selectivity would be maintained, but Mr van Overbeek thought this would approach would not appeal to VMs. Apart from anything else, such a structure would lack legal certainty.
E-commerce offers an alternative, but it only makes buying easier - it does not help with delivery, which is an essential part of the parts distribution offering.
Paccar has pioneered a system in which outside parts are distributed to DAF dealers along with DAF parts. In the truck industry, where body builders and others have parts to get out to the dealers, there's scope for this which would not exist in the car spares market. In a universe in which all manufacturers use selective systems to distribute their parts, though, this extended offering could never take in other VMs' parts - they simply would not be available for resale.
Another alternative would be to set up separate parts agents, separate legal entities established by authorised repairers. VW have gone down this road in the UK. Not all ARs have spares agencies, so the number of outlets can be reduced. These are called "trade parts specialists". In an agency relationship (VW have tried this before, in other contexts - finance, I recall - and run into problems with the Court of Justice determining that the "agent" was not an agent at all) the principal can set the price and assign territories, which is why I don't fully understand why VMs haven't adopted this approach in other parts of the system. If it works, a non-compete obligation should be enforceable.
In a variation on this theme, joint ventures of dealers or ARs could be set up as parts agents, and could represent multiple OEMs not just one. Dealers can still sell parts to whomever they like. There are still potential problems and risks, which are largely those that flow from any situation that looks dangerously like a cartel, even when it isn't.
Next came a review of the legal implications, such as they are, of electric vehicles. The title also mentioned "licensing", which could be taken in one of at least two ways, but in the context of competition law it should be clear which meaning is intended. The speaker was Eva-Lena Bergqvist, who sounds like a character in a Wallendar novel, or another work from that genre of Swedish detective fiction - but in fact is a lawyer with Volvo Car, which of course is a Chinese company these days. The company's proposed hybrid V60 is a joint venture between Volvo and Vattenfall AB, a generator of electricity, which makes sense - this is where the licensing issues come in. From the experience, she said that they had learned of the importance of preserving freedom of action: at the time that the JV was put together, the company was being sold by Ford to Geely, which probably made life interesting. It's also necessary to have the right people involved from an early stage (SOTBO), which would be a useful lesson for a few organisations I can think of. Also, it's important that decision-makers understand the implications of the licensing agreements. Another SOTBO, perhaps.
Marc Greven (ACEA) asked about the distribution of electric vehicles, which is an interesting question. Would an agency or franchise be more appropriate for this new type of car? For hybrids, Volvo intends to use existing distribution channels. For pure electric cars, she said they were still thinking. A GM lawyer in the audience said that they had considered new routes to market but chosen to stay with traditional ones - while recognising that there are formidable and therefore expensive requirements for investment and training. Chairman Frank asked whether this was rolled out to the entire GM network - the answer being that any dealer who met their higher standards (so, not all of them but not a specially selected group) was given the new franchise.

OFT issues statement of objections in CV competition case

Price co-ordination, market sharing and exchange of sensitive commercial information are alleged in a statement of objections issued today by the Office of Fair Trading against Mercedes Benz and five of its dealers. Press release here.

Brussels conference session 2

Thomas Funke of Osborne Clarke had the task of talking about aftermarket competition and access to technical information. He wondered whether the automotive sector would become like the IT sector, especially as they become more like computers on wheels and the aftermarket becoming more valuable than vehicle sales. The French Autorité de la Concurrence (ADLC) has produced a draft report (having embarked on an investigation into the car market rather like the ones the Monopolies and Mergers Commission or Competition Commission used to do every few years) and it seems to confirm most of what the Commission's evaluation report found. It has a lot to say about the spares market ...
The ADLC's report  (the final version of which will be published in the Autumn) takes a detailed view of access to technical information. It considers, for example, the need for information to be aggregated - information about several marques being made available to authorised repairers handling more than one.
Remote diagnostic support is covered by the type approval framework, in the CV sector, and as vehicles become more and more like computers (internet-enabled ones, at that) remote data will be a more and more important issue. That's in the Euro IV system. What about Euro 5? There are some interesting topics here - service records, for one thing. If service records are kept electronically, you won't be able to hand it over when you sell the car - and in addition independent service providers won't have access to a vehicle's service record. Euro 5 is designed to deal with this, insisting that access must be given to the database containing all these data. The VM is also required to make available information about which parts are suitable for the car identified by a particular VIN. Interesting to see that the Commission takes the view that the definition of "database", missing from the type approval legislation, should be borrowed from the database directive!
Brand-specific tools are an emerging problem. They could have a significant impact on competition, given that buying multiple sets would be prohibitively expensive. Training can be expensive (he remarked that the same could be said of legal conferences: but he should have excluded the Motor Law conference from that generalisation). The growth of telematics poses new competition problems: they must not be allowed to limit the consumer's choice of service provider. They should be regarded as essential facilities, or perhaps in the same way as computer interfaces. The Microsoft decision, in which the Commission insisted that alternative browsers should be made available on a par with Internet Explorer, has lessons for this area. The Toll-Collect decision also has an impact on this area.
E-call also has ramifications for using this information to book a service for a vehicle - if the authorised network has exclusive access to this information it could be a major clog on competition. Likewise, the telematics might give early warning of a breakdown - valuable information for the authorised network if they alone had it. Commissioner Kroes has indicated that she is concerned to preserve consumer choice in this area.
The misuse of warranties remains a topical matter. The guidelines dealt with the subject a while back, and the Commission makes clear that it makes no difference whether it's a purchased warranty or the manufacturer's original offering. In the Saab case (2011) the Bundesgerichtshof analysed this from the consumer protection perspective, not the competition law perspective. It thought that only where inappropriate service behaviour was the reason for the failure should the warranty be voidable. There is a difference between mechanical and corrosion warranties as regards the need for inspection by an authorised person - but the BGH was unable to consider the full implications because competition points were not pleaded. We must await the Stockholm market Court judgment in the Kia case for further clarification (it is expected in October).
Joseph Vogel observed that the ADLC document is merely a preliminary report - it is more like a statement of objections, and VMs consider that they comply. VMs and dealers have appealed against it.
Anne Wegner, of the Luther law firm, spoke about distribution in the aftermarket. She began by casting the BGH as resisting the approach the Commission thinks it is taking to competition in the aftermarket, with its MAN judgment. Kia's approach in the Netherlands, imposing no restrictions, challenges the Commission's view that qualitative selection is the only way forward. They thought this would prevent them from having enough dealers. They realised that the only restriction that mattered was sales of parts to non-authorised resellers, and they could do without that. There is a lot of leakage anyway, partly because it was always necessary to supply independents for repair work but in practice one could never check that they weren't buying for resale. So Kia's agreement in the Netherlands contains no restrictions that require exemption, so there is no need to use qualitative selection.
She raised an interesting question about the refusal of an appointment to the network: that cannot be caught by Article 101(1) because there is no restrictive agreement. If the manufacturer were in a dominant position that would be relevant, but the application of Article 101 to refusals appears flawed. Interesting.
She then turned to the MAN decision. The new block exemption is unspecific on market definition, unlike Regulation 1400 - which had expired before this case came along. The Commisssion takes the view that the manufacturer's market share in the aftermarket includes supplier-owned repair shops and authorised repair shops. But the Commission's information on this is old, predating 2002, and fails to take account of differences between premium and volume brands which will be significant.
In the MAN case the repair shop claimed a right to be appointed based on German dominance rules, which apply a one-third market share rule.
The BGH said that where the end customer buys services is not the important thing for assessing dominance or market share. The important thing is whether the repairer really needs the contract in order to be active on the market. What is the market? It's all the goods and services needed to provide the services - and the authorised repairer contract is not one of them. As for the assumption that the market is brand-specific, because you are looking at it from the repairer's perspective, the market is not brand-specific. relevant market is upstream from consumer, which is what the Commission usually looks at.
Consequently, quantitative selective distribution is permissible, the block exemption applies, single branding is permitted - the whole model of the aftermarket posited by the Commission falls apart.
So is there an argument for saying that the market share for new vehicles and repair services should be aggregated? In the truck market, buyer's take whole life costs into account but they don't in the car market. This raises interesting questions about how to account for guarantee costs, which is likely to reduce the market share - even within the Commission's view of the matter.
Joseph Vogel addressed the matter of the aftermarket from the point of view of vehicle manufacturers and suppliers (consistent with the nature of his clientele). He spoke more about ADLC investigation - an own-initiative one - and its consultation document (rather different from a draft report!). It has been working on the matter for a year - and it has identified a number of issues, including protection for spare parts designs. However, although the issues in a market study might be more important than those in a competition infringement, the enterprises being investigated have far fewer rights - even though the economic impact of the proceeding might be more damaging to them than a formal penalty for a breach of competition rules. He explained why the manufacturers were so opposed to the investigation, including the point that given that European Union law reigns here there is no place for a national investigation.
The new block exemption regime raises seven points of importance when drafting contracts. It weakens the separation between sales and aftersales activities. It is permissible to ask distributors to do maintenance and repair work but no longer mandatory.
It is now accepted that warranties cannot be conditional on repair and maintenance within the network, but in France it has also been decided that the customer cannot be required to prove that a defect is not the fault of the independent repairer. The competition authority also takes the view that the same principles should apply to warranty extension. French consumer law also has to be borne in mind here: the law states that a "loss of warranty" clause has to be regarded as an unfair provision. Other countries (Germany,for example) has implemented the relevant directive in a different way.
What about the use of alternative tools and equipment? Can the manufacturer prohibit this? This coud be an abuse of a dominant position if there is no objective justification.
As for non-compete restrictions, which are not exempted under the new regulations, it seems in principle that they cannot be exempted individually, as far as the Commission is concerned.
The ADLC considers that there are too many price restrictions (maximum and minimum recommendations). But the VMs say they serve a useful purpose, and protect consumers from over-charging by dealers. The ADLC thinks that this leads to uniformity of pricing, though.
Recommended prices are also given for packages, and the practice has not previously been questioned. It gives consumers certainty and saves repairers time. But in practice contracts may not contain fixed or minimum prices, only recommended maximum prices.
Audit and inspection clauses in the contract are regulated quite differently from one country to another. Termination for fraud uncovered by such an audit can be a problem: it might be necessary (as it is in France) to allow the dealer to defend itself.
Incentive schemes are a complicated issue. they may constitute a vertical restriction if they have foreclosure effects. They have to be assessed on a case-by-case basis as the Commission acknowledged in its evaluation report. 1475 required different "baskets" to be created, to prevent full-line forcing, but that is watered down now. Captive and competitive parts must still be distinguished, and more falilies or baskets is better. there shoud be no fidelity-enhancing effect.