417. Below is a discussion on the importance of the warranty in the consumers’ choice between authorised repairers and independent repairers (1), followed by a presentation of the obstacles that might prevent implementation of the warranty, which might limit the consumers' choice of service provider to carry out repair and/or maintenance works (2).
1. THE IMPORTANCE OF THE WARRANTY IN THE CONSUMERS’ CHOICE BETWEEN AUTHORISED AND INDEPENDENT REPAIRERS
418. Section 1 of this Opinion demonstrates that the vehicle manufacturers' authorised networks hold very high market shares in the first few years of a vehicle's life, which also correspond to the term of the manufacturer's warranty. However, in a survey of drivers conducted by GIPA, when asked "When your vehicle is under warranty, why do you go to the official dealer?", 74%395 of drivers of vehicles aged under two years answered "To avoid any problems" (See Graph 13 below). Almost 60%396 of drivers of vehicles aged under two years believe that the warranty will be voided if they take their vehicle to a garage that is not part of the vehicle manufacturer's network for servicing. Accordingly, the main reason for using authorised networks during the warranty period, which corresponds on average to the first two years of a vehicle's life but may be longer, would seem to be the fear that the warranty will be voided if it does not use an authorised repairer for vehicle repair and maintenance works.
395 GIPA 2011 Drivers’ Survey, section 5.15.
396 GIPA 2012 Drivers’ Survey, section 5.13.
Graph 13 – Main reasons for using the vehicle manufacturer's network during the warranty period
Source: GIPA 2011 Drivers’ Survey, page 352
419. In addition, in the GIPA Repairers’ Survey, when asked "What do you do when a vehicle under warranty comes to you for servicing instead of going to the brand network?”, 30%397 of independent repairers (standalone or franchised) said that they send the vehicle to the authorised network, while 70% accept it. These figures suggest that 30% of IR prefer to lose a customer rather than to service a vehicle under warranty.
420. Thus, there is clearly still a very strong link between maintaining the benefit of the warranty and the consumers' decision to use the vehicle manufacturer's authorised network to carry out repair and maintenance works that are not covered by the warranty.
2. REASONS FOR THE LINK BETWEEN THE WARRANTY CONTRACT OR WARRANTY EXTENSION AND THE CONSUMERS' CHOICE OF AUTHORISED OR UNAUTHORISED REPAIRERS
421. Several obstacles may explain why most consumers prefer to use authorised networks when their vehicle is under warranty.
422. Firstly, a warranty is usually valid only on condition the problem resulting in the claim under the warranty is not causally linked to work not covered by the warranty that was carried out outside of the authorised network398. However, independent repairers suffer
397 GIPA 2011 Repairers’ Survey, section 4.3.
398 The European Commission has also pointed out in its Guidelines on the application of Regulation 461/2010: "however, if a supplier legitimately refuses to honour a warranty claim on the grounds that the situation leading to the claim in question is causally linked to a failure on the part of the repairer to carry out a particular repair or maintenance operation in the correct manner, or to the use of poor quality spare
from this situation on several counts: firstly, they are not systematically informed of vehicle manufacturer's recall campaigns asking authorised repairers to carry out electronic updates or other types of work399 and, secondly, they do not always possess updated technical information because of the obstacles impeding access to technical information identified in part IV. Such obstacles might explain why, as they are uncertain of their position and cannot control the work actually carried out on a vehicle, 74% of drivers prefer to use the authorised network during the warranty period "to avoid any problems", and why approximately 30% of IR prefer to send vehicles that are under warranty to the authorised network for work that is not covered by the warranty rather than doing it themselves. As they do not have access to comprehensive, up-to-date technical information, they may in some cases400 prefer to lose a customer rather than risking legal problems or compromising their reputation. Lastly, one insurer questioned also said that it advised policyholders under warranty to use the authorised network for bodywork, because of the upgrades they can carry out.
423. Secondly, consumers may also encounter contractual obstacles. The public consultation document referred to clauses identified by the DGCCRF that limit a consumer's ability to use the services of an independent repairer during the warranty period or warranty extension period401. Such restrictions may explicitly link the benefit of the warranty or the warranty extension to the use of the vehicle manufacturer's authorised network to carry out the maintenance and servicing work for which the user is responsible, and to the use of the vehicle manufacturer's original parts during the warranty period. Such obligations may also be implicit, in which case the warranty may be voided without any obligation to establish a
parts, this will have no bearing on the compatibility of the supplier's repair agreements with the competition rules".
399 See, in particular, an article published in the Argus de l’automobile on 20 April 2010, entitled "Entretien automobile: faut-il sortir des réseaux conducteurs" [Maintenance work: should we look beyond the authorised networks?], "Customers do not know that when a car goes into a garage various technical improvements and upgrades are carried out of which they are unaware. Contrary to what the vehicle manufacturers say, such upgrades do not only concern comfort-enhancing features, they may also concern crucial components such as the EGR valves, the braking system, the steering system, etc. What happens after the warranty period if this work has not been carried out? Particularly given that such so-called silent campaigns have become extremely common, but are limited in time to the term the warranty". Accordingly, one vehicle manufacturer only decided to provide independent repairers with recall information from March 2012, after having "adjusted its interpretation of the regulations", despite the fact that the Euro5 Regulation came into effect in January 2009.
400 An independent repairer's refusal to work on a car may also be due to a lack of investment on its part, either in training or in multi-make solutions.
401 The Autorité de la concurrence also identified approximately 30 complaints made by consumers to newspapers, independent operators and consumer associations in 2010 and 2011 concerning a vehicle manufacturer’s refusal to implement a warranty on the grounds that repair or maintenance works had previously been carried out by independent repairers. In their contribution, the vehicle manufacturers stated that the number of such complaints is "microscopic" given the total number of vehicle owners, and is indicative of a healthy market. However, this was not an exhaustive survey of complaints and was provided for illustrative purposes only. The continued existence of restrictions limiting the consumers' capacity to benefit from free competition during the warranty period is also suggested in the article published in the Argus de l’automobile on 20 April 2010, entitled "Entretien automobile: faut-il sortir des réseaux conducteurs" [Maintenance work: should we look beyond the authorised networks?], which reports a large number of warranty-related complaints received from readers.
clear causal link between the identified problem and work carried out by an independent repairer, or the consumer may be required to provide proof that the problem is not causally linked to repair or maintenance works performed outside of the authorised network402. 424. Moreover, the Autorité has also analysed the warranty and warranty extension contracts of
six vehicle manufacturers that were still in effect in 2012. Table 9below summarises the various clauses that are likely to limit validity of the warranty or warranty extension, as observed by the DGCCRF and/or the Autorité de la concurrence, and the types of contract in which they were found:
Table 9 – Summary of the contractual clauses likely to explicitly or implicitly link the validity of the warranty to the use of an authorised network to carry out work not covered by the warranty or to the use of OEM parts
Type of covered by the warranty is carried out within the authorised network by the warranty is carried out within the authorised network
2012 (three contracts) Consumer must produce proof that the
problem is not causally linked to work not covered by the warranty carried out outside the authorised network use of independent repairers or use of non-OEM spare parts405
2011 and 2012 (two contracts)
2011 (two contracts)
402 This reversal of the burden of proof is contrary to Article R. 132-1 of the Consumer Code. When examined in light of competition law, it could have the effect of encouraging consumers to use an authorised repairer to carry out repairs or maintenance work not covered by the warranty, which would weaken competition between authorised repairers and independent repairers.
403 This may have other names, such as "contractual warranty".
404 Also known as an "anti-perforation warranty" or a "corrosion perforation warranty".
405 For example, some contracts provide that "the warranty will not be valid […] if the problem is associated with […] repairs […] outside the authorised network" or that it does not cover "the consequences of repairs […] by unauthorised companies" (emphasis added). Accordingly, these clauses do not clearly establish the need for a direct causal link (using wording such as "caused by", for example) between the problem resulting in the warranty claim and the repair or maintenance works carried out outside the authorised network, which leaves a wide margin for interpretation.
Sources : 2011 and 2012 contracts of six vehicle manufacturers questioned by the Autorité de la concurrence (eight brands) – DGCCRF investigation report, 2011.
425. It can therefore be seen that of the six statutory warranty contracts in effect as at June 2012 analysed by the Autorité de la concurrence, one contract still requires the customer to produce proof of the absence of any causal link between the problem and the use of independent repairers for work not covered by the warranty; two of the contracts also contain clauses that do not refer to a clear link between the problem and the use of an independent repairer for work not covered by the warranty. Likewise, of the six warranty extensions analysed, one contract still places the burden of proof on the consumer, and three warranty extension contracts recommend that consumers use the network of authorised repairers for work not covered by the warranty.