426. The Autorité de la concurrence does not have authority within the framework of an opinion to characterise individual conduct in a market in view of Articles 101 and 102 of the TFEU and Articles L420-1 and L420-2 of the Commercial Code. Any such assessment and judgement is only possible following a procedure involving the hearing of all the parties organised pursuant to Article L463-1 of the Commercial Code.
427. It is accepted and justifiable that vehicle manufacturers and their networks exclude from the scope of their warranty problems caused by repair or maintenance works incorrectly carried out by an independent repairer406. It would be wrong to require vehicle manufacturers to cover under a warranty parts or works for which they are not responsible, as they were not carried out in their authorised network. However, clauses containing a general exclusion applying to all works not covered by the warranty that is carried out outside the authorised network could weaken the consumers' ability to freely choose between authorised and independent repairers. If the problem was not caused by works carried out outside of the authorised network, there would be no reason to withdraw the benefit of the warranty.
428. In their contribution to the public consultation, the vehicle manufacturers regretted the fact that the Autorité has put forward a problem which they believe was resolved by the modification in 2011 of the clauses judged to be problematic. However, the Autorité de la concurrence feels it is important to note the time lapse between the date of entry into force of Regulation 1400/2002 (September 2003) and the date on which the DGCCRF brought an end to the use of such problematic clauses (2011 or later), although the Explanatory Brochure on the Regulation stated back in 2002 that "a general obligation to have the car maintained or repaired only within the authorised network during such a period would
406 This is also true for parts sold outside the vehicle manufacturer's authorised network when the problem is caused by such parts, or by fuel or additives that do not comply with the vehicle manufacturer's recommendations, provided such recommendations are justified, do not result in the exclusion of third party operators for no reason, and the independent operators have been informed of them in accordance with the Euro5 and Euro6 Regulations.
deprive consumers of their right to choose to have their vehicle maintained or repaired by an independent repairer and it would, especially in the case of “extended warranties”, prevent such repairers from competing effectively with the authorised network"407. This means that from this date onwards the vehicle manufacturers and their authorised repairers have not been entitled to explicitly link validity of the warranty to the fact that repair and maintenance works are carried out in their authorised network.
429. Moreover, with regard to the clauses identified by the Autorité in the warranty contracts and warranty extensions in effect as at June 2012, the Guidelines on the application of the new Regulation 461/2010 once again pointed out the importance of the wording in warranty contracts and warranty extensions, and stated408: "Qualitative selective distribution agreements may also be caught by Article 101(1) of the Treaty if the supplier and the members of its authorised network explicitly or implicitly reserve repairs on certain categories of motor vehicles to the members of the authorised network. This might happen, for instance, if the manufacturer's warranty vis-à-vis the buyer, whether legal or extended, is made conditional on the end user having repair and maintenance work that is not covered by warranty carried out only within the authorised repair networks. The same applies to warranty conditions which require the use of the manufacturer's brand of spare parts in respect of replacements not covered by the warranty terms. It also seems doubtful that selective distribution agreements containing such practices could bring benefits to consumers in such a way as to allow the agreements in question to benefit from the exception in Article 101(3) of the Treaty" (emphasis added).
430. Although the contracts in effect in 2012 that were analysed do not contain any clauses explicitly linking validity of the warranty to the fact that maintenance and/or repair works on the vehicle are carried out in the vehicle manufacturer's authorised network and/or to the use of OEM parts, other clauses might implicitly restrict the consumer's choice during the warranty period, particularly in a context in which the consumer is already reluctant to use the services of independent repairers during the warranty period. For example, depending on the exact wording and where it is included in the contract, a recommendation by the vehicle manufacturer to carry out maintenance and repair works not covered by the warranty within the authorised network could cause the consumer to believe that the warranty will be voided if he uses the services of an independent repairer during the warranty period409. The same result could be achieved by a clause that places the burden of
407 Question 37 of the Explanatory Brochure on the application of Regulation 1400/2002.
Note that the national legislation has also addressed this risk under consumer law and, more specifically, through recommendation 79-01 of 24 February 1979 on unfair clauses included in warranty contracts, providing that clauses are invalid when they "compel the consumer to have the faulty item repaired by the manufacturer or an authorised repairer on penalty of voiding the warranty, when such a clause is not justified for reasons relating to consumer safety or the technical complexity of the item, or when the repairer's network is not accessible under normal conditions".
408 Recital 69 of the Guidelines on the application of Regulation 461/2010.
409 The Commission has stated: "Irrespective of where the restriction is stipulated, it is likely to lead consumers to believe that the warranty will be invalidated if servicing work is carried out in independent garages or if alternative brands of spare parts are used. This, in turn, is likely to foreclose such operators or close alternative channels for spare parts' distribution" (emphasis added – see answer to question 1 in the
proof that the problem resulting in the warranty claim was not caused by repairs carried out by an independent repairer upon the consumer and not on the authorised network410, or a clause that is vague as to the conditions under which the vehicle owner may be denied the benefit of the warranty.
431. Lastly, vehicle manufacturers have expressed the opinion in their contributions that the concept of "extended warranties" as used in the aforementioned Guidelines does not cover
“warranty extensions”. They claim that warranty extensions should be differentiated from the statutory warranty: whereas "extended warranties" are general in scope, free of charge and associated with the sale of the new vehicle, "warranty extensions" are optional, give rise to payment, may be entered into after the purchase of a vehicle, and only concern a minority of vehicles. In addition, they claim that there is competition for this type of service, namely from guarantors411 and insurers412. Lastly, the vehicle manufacturers argue that warranty extensions that link the benefit of the warranty to use of the authorised network and/or use of OEM parts for work not covered by the warranty (so-called "closed"
warranty extensions) enable the manufacturers to offer consumers lower prices than those charged for so-called "open" warranty extensions, which do not impose this condition.
432. However, the European Commission does not specify whether the expression "extended warranties" as used in paragraph 69 of its Guidelines only covers warranties that are
"general in scope, free of charge and associated with the sale of the new vehicle". The
"Frequently asked questions on the application of EU antitrust rules in the motor vehicle sector" dated 27 August 2012 and published by the European Commission clearly provide that the Guidelines do not restrict the concept of "extended warranties" to warranties that are general in scope, free of charge and linked to the sale of the vehicle413. On the contrary, these terms cover in particular the "extended warranty issued by the authorised network at the moment of the sale of the vehicle (or shortly thereafter)"414. However, most of the warranty extensions proposed by the vehicle manufacturers and their networks are issued at the time of purchase of the vehicle or shortly thereafter. The risk of pre-emption of the
document "Frequently asked questions on the application of EU antitrust rules in the motor vehicle sector"
dated 27 August 2012).
410 Such clauses should be analysed in light of Article R. 132-1-12 of the Consumer Code, which provides that clauses are prohibited when "their object or effect is […] to place the burden of proof on the non-professional or consumer when the applicable laws dictate that it should normally be placed on the other contracting party". Such clauses may be found in warranty contracts or extended warranty contracts.
411 Companies offering guarantees and related products.
412 The vehicle manufacturers have mentioned Icare, Mapfre Warranty, Opteven, insurance companies such as Groupama, Cardif assurance and CGI assurances, and independent operators such as Groupe Guillerminet and Groupe Pigeon.
413 See answers to questions 2 and 3 in the document "Frequently asked questions on the application of EU antitrust rules in the motor vehicle sector" published by the European Commission on 27 August 2012.
414 To the question "Does the assessment of servicing or parts restrictions differ if they are set out in an extended warranty issued by the authorised network at the sale of the vehicle or shortly after?" the Commission answered "No. The fact that the servicing or parts restrictions are not set out in the vehicle supplier's warranty, but are instead found in an extended warranty issued by the authorised network at the moment of the sale of the vehicle (or shortly thereafter) will not generally alter the assessment of the said restrictions" (emphasisadded – see question 2 in the aforementioned FAQ).
repair and maintenance sector is all the more harmful because the fidelity-enhancing effect of the contract applies for an average period of four years and it concerns 20% of vehicle registrations on average, although this figure is on the increase.
433. In any event, consumers' reluctance to use the services of an independent repairer during the warranty period or warranty extension period is considerable, as has been established by a number of different studies and surveys (see §418 to 420), and it is therefore all the more essential that the clauses contained in all the documents proposed to consumers by vehicle manufacturers or members of their authorised networks are totally clear and explicit as to the consumer's right to use the services of an independent repairer without losing the benefit of the warranty. On this topic, some operators proposed in their responses to the public consultation document that warranty contracts and warranty extensions should contain a clear statement to this effect415.
VI. Use of recommended sale prices by all operators in the motor vehicle aftermarket
434. The spare parts distribution sector, encompassing both the independent channel and the manufacturer channel, communicates recommended retail sale prices or maximum retail sale prices in various ways and at every level (A). Although such a practice has certain benefits, given the large number of part references and the repairers' potential market power, it may in some circumstances weaken the intensity of competition between operators (B).