Back in 1985, the justification for granting a block exemption for motor vehicle distribution and servicing agreements was that motor vehicles were complex products that required periodical maintenance and repair, not always in the same place: and the best way to ensure that consumers could get those services wherever in the European Community they happened to be was to make it a condition of exemption that the two went hand in hand. In other words, if you wanted to sell the vehicles you had to offer the service, or try to get individual exemption for your arrangement and the Commission could be expected not to look very kindly on it.
The same philosophy remained in fashion in 1995 when the block exemption was renewed (or, perhaps more accurately, the first Regulation was replaced), but by 2002 the sales-service link was seen as a problem rather than a solution. Strange how these things can change, and I don't recall ever seeing a convincing explanation for it. These things are so often dressed up to meet the needs of political expediency, or to hide the fact that it just wouldn't work to change another piece of law (which is what's now happening with multifranchising, as described in my last blog post here).
Of course, this time round - in block exemption v4 - the divide is even more pronounced. Actually, I should refer to block exemption 4.1, which deals with the aftermarket, and block exemption 4.2, which will deal with vehicle distribution but in a couple of years from now. And since we've all started referring to the block exemption as MBER, make that MBER 4.1 and 4.2. I wonder whether I will start a trend here? I will when I write the new version of the Motor Law Guide.
I have already described the main points of the vertical restraints block exemption, the VBER, Regulation 330/2010. To appreciate how this instrument regulates the automotive aftermarket, it will be necessary to consider also the specific "mini-block-exemption" which the Commission still hasn't finalised, which I shall call MBER 4.11. However, it published a draft in December last year and doesn't seem minded to make many changes (and if looking back through my various notes I discover otherwise in any respect I will let you know, dear reader) so we can look at that document for guidance, as well as the accompanying notice and the contributions of those who commented.
The important thing about MBER 4.11 is that it preserves the hard core restrictions that we know and love from Regulation 1400: sales of spares to the independent sector, restrictions on the sale of spares, tools or diagnostic equipment, and branding. Nothing here about technical information, but the other basic stuff that we are used to seeing to enable independent repairers to continue in business is all carried forward. The first of these three hardcore restrictions (how pleased I am that the expression "blacklist" has completely disappeared from the vocabulary) is a matter for those of us drafting or reviewing authorised repairer agreements, and so up to a point is the second, while the third is a matter of the vehicle manufacturer's conduct. In fact, Article 4(e) of the VBER protects sales of spares too and has to be read in conjunction with the relevant provision of MBER I am going to have to some cutting and pasting to put all these provisions next to each other so we can make sense of them.
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