On 27 October 2022, the Court of Justice handed down its judgment in Case C‑390/21, ADPA and Gesamtverband Autoteile-Handel, on the interpretation of Article 61(1) and Article 63(1) of Regulation (EU) 2018/858 and of Article 6(1) and Article 7(1) of Regulation (EC) No 715/2007. The request has been made in proceedings between, on the one hand, ADPA European Independent Automotive Data Publishers (“ADPA”), an international not-for-profit association governed by Belgian law, and Gesamtverband Autoteile-Handel eV (“Gesamtverband”), an association governed by German law, and, on the other hand, Automobiles PEUGEOT SA (“Peugeot”) and PSA Automobiles SA(“PSA”) regarding the fee charged by Peugeot and PSA for access to vehicle repair and maintenance information for the vehicles which they manufacture.

Peugeot and PSA hold the type-approvals, within the meaning of Article 3(1) of Regulation 2018/858, for Peugeot vehicles, and they grant access to information, referred to in Annex X to that regulation, relating to the repair and maintenance of approved vehicles, by means of a database available on an internet portal which independent operators may consult in return for payment of a sum applicable to all of those operators, which varies in amount on the basis of the duration of the access granted, with no other individual variables being taken into consideration. 

Deeming that the fees thus calculated are neither reasonable nor proportionate within the meaning of Article 63(1) of Regulation 2018/858, ADPA and Gesamtverband brought an action before the Landgericht Köln (Regional Court of Cologne; the “referring court”) requiring Peugeot and PSA to charge the publishers of technical information the same fees as those charged to independent repairers. In light of the need to interpret the relevant European legislation, therefore, the referring court decided to stay the proceedings and to refer to the Court of Justice four questions for a preliminary ruling.

By its first question, the referring court asked whether Articles 61 and 63 of Regulation 2018/858 must be interpreted as meaning that they apply to vehicle models approved under Regulation No 715/2007.

According to the Court, Article 86(2) of Regulation 2018/858 states that references to the deleted provisions of Regulation No 715/2007 are to be construed as references to Regulation 2018/858, and therefore Articles 61 and 63 thereof replace Articles 6 and 7 of Regulation No 715/2007 and have, since 1 September 2020, been applicable to vehicles approved before that date.

By its second question, the referring court asked whether Article 61(1) of Regulation 2018/858 must be interpreted as meaning that the obligation which it imposes on automotive manufacturers to provide unlimited, standardised and non-discriminatory access to “vehicle repair and maintenance information”, defined in Article 3(48) of that regulation, includes the obligation to allow publishers of technical information to process and use that information for the purposes of their activities in the aftermarket supply chain, without subjecting them to conditions other than those laid down in that regulation.

According to the Court, the right of access to the information necessary for vehicle repair and maintenance, which Article 61(1) of Regulation 2018/858 requires automotive manufacturers to guarantee to, among others, publishers of technical information, must include the one to process and exploit that information in the context and for the purposes of their own commercial activity, without any conditions other than those laid down by that regulation. By facilitating access to that information by independent operators who are not authorised dealers or repairers who are part of the manufacturers’ distribution system, indeed, the publishers of technical information contribute to the development of the market by such operators.

By its third and fourth questions, finally, the referring court asked whether Article 63 of Regulation 2018/858 must be interpreted as meaning that the concept of “reasonable and proportionate fees”, set out in that article, requires automotive manufacturers to apply, to all independent operators, a uniform method of calculating those fees based solely on the costs borne as a result of the access to vehicle repair and maintenance information which that regulation requires them to grant.

According to the Court, the obligations which Regulation 2018/858 imposes on automotive manufacturers vary depending on the status of their beneficiary, which excludes from the outset the application of a single flat-rate amount to all independent operators, in respect of the fees charged for access to vehicle repair and maintenance information, and implies that  automotive manufacturers must, inter alia, take into account the use that the different independent operators make of that information in the course of their commercial activities.

Marco Stillo