Aftermarket September 2022

SEPTEMBER 2022 AFTERMARKET 15 unless independent operators can also have equal abilities? (I choose my words carefully). The MV-BER is very important to retain the principles of effective competition for the aftermarket but needs to work in parallel with the vehicle type approval regulations, as these contain much more detail about both the technical and the access requirements that the vehicle manufacturers must support. Vehicle type approval legislation also allows non- compliance claims to be challenged through the type approval authority, as opposed to the more difficult and expensive route through the courts under the MV-BER. Post-Brexit, the role of the UK legislator in the guise of the Competition and Mergers Authority (CMA) is most important. The CMA have consulted on the continued relevance of the MV-BER and plan to issue a two-stage consultation during the summer, so it seems that they plan to renew MV-BER, but it is not clear how new requirements needed to address “technical progress” would be included, if at all. This would require either change to the wording of the MV-BER itself, or an update to the wording of the supplementary guidelines, which although easier to do from the legislative viewpoint, has less direct legal basis in the event of a “non-compliance” by a vehicle manufacturer. Aftermarket associations in the EU, but equally importantly in the UK, have submitted key proposals for updates to the MV-BER supplementary guidelines. The UK government has stated that they will also take into consideration what the European Commission propose to do. The European Commission issued its proposal in early July which explained their approach and their draft proposals. These documents confirmed that MV-BER will be renewed until 31 May 2028, but their proposal also stated that there needed to be an update to “reflect the importance that access to vehicle-generated data was likely to have as a factor for competition.” However, although the European Commission felt that “some parts of the sector would evolve rapidly over the coming years and that this would have an impact (not yet quantifiable) on the conditions of competition,” they also stated that the extension of the MV-BER will “allow some of the currently emerging technologies to consolidate and will put the Commission in a better position to re-assess the situation under the new market reality.” The Commission also explained that access to vehicle- generated data would be included in the revised wording of the Supplementary Guidelines, but although this seeks to establish that “withholding the item in question will have an appreciable impact on the ability of independent operators to carry out their tasks and exercise a competitive constraint on the market” as the basis, this does not clarify many other important related aspects, for example how vehicle generated data would be accessed, what can be accessed, at what cost and what registration/declaration conditions would be imposed by the vehicle manufacturers. The UK government will need to consider what the European Commission has proposed, but for truly effective competition in the UK aftermarket where the vehicle manufacturers are now increasingly and directly competing with independent operators and where the basis of vehicle-related service offers starts remotely when the vehicle is being driven, the UK government will have to do much more. Given the time frame before the current MV-BER is set to expire, the reality is that the ‘rules of the game’ are likely to be insufficient to ensure that the playing field remains level, meaning that the next few years are likely to be increasingly challenging for the UK aftermarket to have the equal abilities needed to compete.