3rd ICAI 2024

International Conference on Automotive Industry 2024

Mladá Boleslav, Czech Republic

private interest (protection against unfair practices, protection of IPR and property in general, protection of personality and privacy). Ex-ante regulation comes into play in particular where ex-post enforcement of injunctions and damages proves to be either difficult to unrealistic due to the asymmetric position of the actors, especially in B2C relationships (protection of personal data or consumers based only on private actions by victims) or, although possible and commonly implemented, very lengthy and difficult to prove (ex-post enforcement of anticompetitive injunctions). In particular, the length and complexity of ex-post enforcement of competition rules does not correspond to the dynamics of the Internet of Things sector to which connected cars belong. Without calling into question the general applicability of classical antitrust to the issue under study (Kerber, 2019; Clark, 2021), the following analysis leaves this alternative out of its scope and focuses exclusively on ex-ante regulation, represented by the sector-specific Regulation 2018/585 on the approval and market surveillance of motor vehicles and the most recent horizontal Regulation 2023/2854, the Data Act This Regulation (which follows on two earlier EU Regulations from 2007 and 2009), is, as already highlighted in its title, largely devoted to “type approval and market surveillance” of motor vehicles and thus regulates mainly the relationship between manufacturers and national approval authorities. However, the final part of its preamble (recitals 52–54) also deals with information which “needs to be provided to independent operators”. In the normative text of the regulation, the issue under examination is dealt with in Chapter XIV entitled Access to vehicle OBD information and vehicle repair and maintenance information. The manufacturers’ obligations vis-a-vis independent operators are then regulated in particular by Articles 61–63 of the Regulation. They briefly set out the following: • Manufacturers are required to provide independent operators with (a) unrestricted, (b) standardised and (c) non-discriminatory access to on-board diagnostic (OBD) information, diagnostic and other equipment and tools, including complete references, and available downloads, of the applicable software and vehicle repair and maintenance information. • This information should be presented (a) in an easily accessible manner, (b) in a machine-editable format and (c) in electronically processable data files, and independent operators should also be given access to remote diagnostic services. • Vehicle OBD information and vehicle repair and maintenance information shall be available on manufacturers’ websites and the information on those websites shall be machine-readable and capable of being electronically processed. Only in very specific situations (vehicles produced in small series, special purpose vehicles...) is the manufacturer’s obligation reduced to providing the required information immediately and in an easily accessible manner if requested by the independent operator. In all other cases, the general rule is that vehicle OBD information and repair and maintenance information must always be accessible to independent operators. 3. Applicability of EU Regulation 2018/858 to access to valuable automotive data

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