3rd ICAI 2024

International Conference on Automotive Industry 2024

Mladá Boleslav, Czech Republic

• Independent operators may also be entities ‘other than repairers’ and are legally entitled to access the above information, regardless of whether the manufacturer makes such information available to its authorised dealers and repairers. • The manufacturer may charge reasonable and proportionate fees for access to vehicle repair and maintenance information, those fees, however, shall not discourage access to such information by failing to take into account the extent to which the independent operator uses it. The Regulation contains a relatively extensive Annex X specifying the OBD and other technical information that must be accessed under the conditions summarised above. In addition to service handbooks and technical manuals, this includes e.g. component and diagnosis information, diagnostic trouble codes, data record information, but also e.g. relevant information to enable development of replacement components and generic diagnostic tools. The obligations of manufacturers under the Regulation have already been interpreted by case law thanks to three EU Court of Justice (CJEU) judgments from 2022-2023. In judgment C-390/21 ADPA v Peugeot of October 2022, the CJEU established that the manufacturer is obliged to allow also the publishers of technical information (the claimants in the present dispute) to handle and use this information for the purposes of their business in the aftermarket supply chain, without applying to them conditions other than those laid down in the Regulation. However, according to the judgment, manufacturers may charge reasonable and proportionate fees for the information disclosed, which may exceed the mere cost of providing access to it. They are therefore not obliged to distribute the information ‘free of charge’, but they must take into account the business activity that independent operators will carry on with the information when setting the fee, which must not be dissuasive (the publisher applicants argued that the manufacturer should not charge them the same prices as car repairers). A year later, in October 2023, the CJEU decided Case C-296/22 ATU and Carglass v. FCA , in which the dispute was whether the manufacturer Stellantis had adequately fulfilled the obligation under Article 61(1) of the Regulation, i.e. to provide to independent operators unrestricted, standardised and non-discriminatory access to vehicle OBD and to do so in an easily accessible manner, in the form of machine readable format in electronically processable datasets (as explained above). Stellantis, ostensibly for cybersecurity reasons, required the plaintiffs in this case to register and log into its server (free registration with authentication) and, in addition, to subscribe to the use of diagnostic devices through which it provided diagnostics via OBD ports. The CJEU first found that the cybersecurity measures should not undermine the vehicle manufacturer’s obligation to provide access to detailed diagnostic information and data stored in vehicles that are relevant for vehicle repair and maintenance. OBD information must be easily accessible, and access must go beyond read-only possibility, i.e. the “read and write” access to vehicle data via OBD ports must be granted to independent vehicle repairers. In essence, the CJEU insisted that the EU legislature created by Regulation 2018/858 a mandatory, not a dispositive regulation, so manufacturers are not free to change the conditions set out in the regulation for their

151