Verdict v. 23.02.2017 – Az.: 6 U 37/16
Guiding principle
Access of independent market participants to vehicle parts data of the manufacturer
Tenor
On the appeal of the defendant, the court of first instance held on 21 May 2009 in Aschaffenburg.01.The judgment handed down by the 3. Civil Chamber of the Regional Court of Frankfurt am Main amended.
The plaintiff has to bear the costs of the legal dispute of both instances.
The judgment is provisionally enforceable. The plaintiff can avert enforcement by providing security in the amount of 120% of the amount enforceable on the basis of the judgment, unless the defendant provides security in the amount of 120% of the amount to be enforced in each case prior to enforcement.
The revision is approved.
Reasons for decision
I.
The parties dispute the access of independent market participants to vehicle parts data of the defendant manufacturing company.
The plaintiff is an industry association of the motor vehicle parts wholesaler. It also includes companies in the automotive parts industry. The defendant is a motor vehicle manufacturer. Vehicles built by the defendant have a vehicle identification number (VIN). In a database owned by another Group company, the components installed are stored under the VIN assigned to each vehicle. An information portal on a website is available to users for a fee (A), on which the relevant data can be viewed for a fee by entering a VIN. This read access to the parts installed in the vehicles of the defendant is granted both to repair companies which are contractually connected to the defendant and to independent market participants. Independent repair shops thus also have the option of reordering (original) parts.
By letter dated 25.10.In 2011, members of the plaintiff demanded that the defendant provide access to all spare parts identification data in electronic form. This was rejected by the defendant in a letter dated 14.03.2012 back.
The plaintiff is of the opinion that the defendant must grant him and his members electronic access to the database linked to the VIN beyond mere read access by individual retrieval, so that the data can be processed by independent spare parts manufacturers and alternative parts lists can be made available to repair companies under linkage to the VIN. This obligation derives from Art 6 of Regulation (EC) no. 715/2007. With regard to the details of the facts. The request made at first instance is granted pursuant to § 540 I no. 1 ZPO referred to the factual findings in the contested judgment.
The district court ordered the defendant,
With regard to those vehicles for which they have received system approval pursuant to Regulation (EC) No. 715/2007 including Regulation (EC) No. 692/2008to provide the data for the identification of the vehicle parts installed in these vehicles to independent market participants in accordance with the definition in Art. 3 para. 15 of Regulation (EC) No. 715/2007 in electronic form for the purpose of electronic data processing upon request, in any case against reasonable and proportionate payment, whereby
A) these data must cover all parts with which the vehicle identified by the vehicle identification number (VIN) and additional characteristics such as wheelbase, engine power, equipment variant or options in the database is equipped and for which corresponding original spare parts are offered to the A -authorized dealers and repair shops in Germany, and
(b) that electronic database includes all vehicle identification numbers (VINs) of those vehicles, the original spare part numbers assigned to the vehicles so identified, the original part designations, validity indications (validity dates from-to), installation characteristics and, where available, structure-related characteristics; and
C) the aforementioned data must be regularly updated, such updates including, in particular, the modifications made in individual vehicles after their manufacture, provided that such modifications are also included in the spare parts catalogs offered to the A authorized dealers or to the A dealers of the vehicles. – Workshops in Germany are available.
The Regional Court stated that the defendant had not fulfilled its obligation to grant access to the data in accordance with Art. 6 of the regulation was not complied with in a sufficient form. The provision of a website with a search form is not sufficient. Independent market participants must be granted access to the database via defined interfaces and formats. The defendant's appeal is directed against this assessment. Repeat on appeal. If the parties deepen their arguments.
Setting aside the judgment of the Frankfurt am Main Regional Court of 21.01.2016 (Ref. 2-03 O 505/13) to dismiss the action.
Dismiss the appeal, with the proviso that in the operative part to 1. Of the judgment under appeal the words "reasonable and proportionate" omitted.
For the further arguments of the parties, reference is made to the exchanged pleadings and their annexes.
The admissible appeal is also successful on the merits.
1. The action is admissible. In particular, the claim – as modified in the oral proceedings before the Senate – does not lack definiteness.
A) Subject of the application is a claim for removal. The aim is to eliminate the continuing state of disturbance in the form of the non-granting of electronic data access. The main part of the application for action is based on the wording of Art. 6, Art. 7 Euro 5/6 VO as well as in lit. A) – c) an Art. 13 i.V.M. Annex IV No. 2.1 of the Implementing Regulation no. 692/2008.
B) The same strict definiteness requirements do not apply to applications for removal as to applications for injunctive relief. They do not have to be directed to a specific measure if the state of disturbance can be eliminated in different ways. It must also be considered whether the substantive claim cannot be circumscribed other than by relatively indeterminate terms (Bornkamm in Köhler/Bornkamm, 35. Aufl., § 8 para. 1.81, 1.84, 1.85). In the case in dispute, there are several possible ways in which the defendant can provide market participants with the requested access to data (e.G. By providing access via a database interface by means of a software application; by providing regularly updated DVDs). It is not up to the plaintiff to already determine the technical details.
C) With regard to the concept of "independent market participants", to which the information is to be made available, the application refers to the definition in Art. 3 para. 15. This is sufficient, because the provision referred to is sufficiently concretely worded. The use of terms subject to interpretation in the claim is acceptable or even required if there is no doubt about the meaning of the terms used, so that the scope of the claim and the judgment is certain (BGH WRP 2016, 229, marginal no. 23 – Porsche tuning).
D) The data should be "in electronic form for the purpose of data processing" to be made available. What is concretely meant by this can be determined with the help of the statement of grounds for the action or the statement of claims. The grounds of the judgment of the court of first instance determine. It is a question of access to the data itself for the purpose of automated reading and further processing, which goes beyond mere read access by individual retrieval via the Internet portal. The market participants should be allowed to read out the data in its entirety for their own data processing purposes. The plaintiff does not necessarily demand the surrender of a copy of the database "as a whole". Rather, the request can also be met by providing a database interface that enables the automated reading of the data records.
2. The action is unfounded.
The plaintiff is not entitled to a claim for data access against the defendant under Sections 8 I, 3, 3a UWG i.V.M. Article 6 of Regulation No. 715/2007 (hereinafter: Euro5/6-VO) to.
A) The plaintiff is entitled to claim pursuant to § 8 III no. 2 UWG has the right of action. The defendant no longer expressly challenges this in the appeal. Reference can therefore be made to the correct statements in the judgment under appeal. It can also be assumed, with the district court, that the defendant "manufacturer" is the party in the sense of Art. 6 Euro5/6-VO is.
B) The District Court correctly assumed that Art. 6 Euro5/6-VO is a market conduct regulation within the meaning of § 3a UWG (§ 4 No. 11 UWG a.F.) acts.
Aa) A market conduct provision presupposes that the provision in any case also has the function of creating a level playing field for competitors operating in a market. It must also regulate the market conduct in the interest of the market participants. A standard serves the interest of competitors if it protects the freedom of their competitive development (BGH GRUR 2010, 654, para. 18 – special purpose operation). The provision of Art. 6 aims to create effective competition between authorized dealers and repair shops on the one hand and independent repair shops and spare parts manufacturers on the other. Its function is to create a level playing field for the latter in terms of access to information.
Bb) Contrary to the view of the defendant, the classification as market conduct regulation i.S.D. § Section 3a UWG does not conflict with the conclusive nature of antitrust law. Art. 6 essentially contains a prohibition of discrimination. This follows from the wording. The recitals. The aim is to ensure effective competition in the market for vehicle repair and maintenance information services (Recital 12, Amendment Regulation No. 566/2011). Provisions with antitrust objectives are not excluded in principle from the scope of application of Section 3a UWG. Antitrust law only constitutes a final regulation for provisions for which Sections 33, 34a GWB provide sufficient civil law sanctions (BGH GRUR 2008, 810, marginal no. 11 – Municipal insurers). This concerns Art. 101, 102 TFEU, §§ 1 et seq. GWB (Köhler in Köhler/Bornkamm, 34. Aufl., § 3a Rn. 1.38; cf. In contradiction to this: Rn. 1.341). For infringements of Art. 6 Euro5/6-VO, Sections 33, 43a GWB, on the other hand, do not apply.
Cc) The classification as a market conduct regulation is also not precluded by the fact that compliance with the regulation is in principle to be monitored by the authorities of the member states (cf. Art. 13 Euro5/6-VO) and it does not provide for individual claims. This circumstance does not in principle preclude a claim under Sections 8, 3, 3a UWG.
C) The District Court was also correct in assuming that the asserted claim is not precluded by the factual effect of the type approval of the vehicles. The infringement of a market conduct regulation is excluded if the competent administrative authority has issued an effective administrative act which expressly permits the objectionable market conduct. The admissibility of the conduct complained of is then not subject to review by the civil courts. The scope of the factual effect of an administrative act is determined by its regulatory content (BGH GRUR 2015, 1228 para. 31, 35 – Tagesschau app m.W.N.).
Aa) When applying for EC type-approval or national type-approval, according to Art. 6 para. 7 Euro5/6-VO in principle, compliance with the granting of access to repair and maintenance information must be proven. If this information is not yet available at the time of approval or if it does not yet comply with the requirements of the Regulation, it may be submitted subsequently within 6 months. If the deadline is not met, the authority shall take "appropriate measures". The licensing authority can check at any time whether a manufacturer is complying with the requirements (cf. Art. 14 No. 1 Implementing Regulation No. 692/2008).
Bb) Thus, the factual effect of the type approval does not extend to compliance with the requirements of Art. 6 para. 1. Because the approval can be granted provisionally even without corresponding proof. Even if the required information is not submitted in due time, the approval is not necessarily withdrawn, but other "appropriate measures" are also possible in question (cf. Art. 14 no. 3 Implementing Regulation no. 692/2008). Furthermore, it cannot be reviewed in the approval procedure whether the defendant complies with its ongoing obligation to update.
Cc) Nothing else results from Art. 13 no. 2 Implementing Regulation no. 692/2008. According to this provision, the approval authorities only grant a type approval if the manufacturer has submitted to them a certificate on access to information on OBD systems as well as vehicle repair and maintenance information. The provision extends the authorisation requirement to access to information on the OBD system (= on-board diagnostic system), with which, according to Art. 4 of the DurschführungsVO, all vehicles must be equipped to detect certain types of deterioration or malfunction throughout the life of the vehicle. A tightening of Art. 6 VII Euro5/6-VO is obviously not intended with it. Furthermore, the effect of the provision cannot in any case extend to whether the manufacturer complies with his obligation to update at all times.
D) A violation of the following. 6 VO Nr. 715/2007 is not available. According to this provision, the manufacturer must provide independent operators with unrestricted and standardized access to repair and maintenance information via the Internet using a standardized format, in a readily and promptly accessible manner and in such a way that there is no discrimination with respect to access by or provision of information to authorized dealers and repairers.
Aa) The defendant grants independent market participants access to repair and maintenance information in a manner that is easily and immediately accessible. To the independent operators count by type. 3 no. 15 VO businesses other than authorized dealers or repairers that are directly or indirectly involved in the maintenance and repair of motor vehicles. In addition to repair companies, this also includes manufacturers or dealers of spare parts. To the "repair and maintenance information" belong by type. 3 no. 14 VO all information necessary for diagnosis, maintenance, inspection, periodic monitoring, repair, reprogramming or reinitialization of the vehicle, which manufacturers make available to their authorized dealers and repairers. The defendant makes an information portal available to potential users for a fee on its website (A), on which vehicles can be searched for by entering the VIN and the original spare parts can be determined. It is not evident that this access is not "easy and immediate" would be available. It is also not evident that the individual categories listed in the catalog of the Art. 6 II VO would not be available there.
Bb) There is also no lack of an "unrestricted" obligation Access in the form of a standardized format. Contrary to the view of the Regional Court, this feature – also in connection with the recitals, the purpose of the Regulation and the legislative history of the standard – cannot be interpreted to the effect that independent market participants must also be given access to the raw data and their link with the VIN by means of a database interface, beyond mere read access, in order to be able to read them out in their entirety and process them further in an automated manner.
(1) There is no doubt that it may be desirable in terms of competition policy to grant the aftermarket the widest possible access to vehicle data. It is clear from the recitals of the regulations that the legislator also had the corresponding interests of the spare parts market in mind (cf. Recital 12 of the amending Regulation no. 566/2011). Nevertheless, with regard to the exact modalities of access to the data, it did not provide clear specifications. It has not regulated the manner in which data are to be made available. The lack of clear requirements is probably due to the fact that the legislator was trying to find a balance between the interests and needs of vehicle manufacturers on the one hand and independent market participants on the other. The vagueness of the regulation cannot be compensated in practice by a broadening interpretation.
(2) Contrary to the view of the plaintiff, the requirement of an automated electronic data exchange cannot be derived from recital 18 of the amending regulation no. 566/2011 derive. It states as follows:
"Since there is currently no common structured procedure for the exchange of vehicle component data between vehicle manufacturers and independent operators, it is appropriate to develop principles for such an exchange. The European Committee for Standardization (CEN) should develop a common structured procedure for the standardized format of the exchanged data as an official standard. …"
The wording of Art. 6 has not been touched by the amending Regulation. The recitals of the amending Regulation alone cannot be regarded as sufficient to meet the requirements of Art. 6 no other content can be attributed. The term "exchange of data does not say anything about the technical modalities of the access to data. From an "electronic" exchange or "download is just not mentioned. Rather, the more precise modalities of data access are left open. In any case, the manufacturer does not have to provide a copy of the complete database. Because it is clear from the history of the standard – as the plaintiff itself recognizes – that independent market participants do not separately collect the raw data as "bulk data" in their entirety (Bl. 1275 d.A.). The terms "bulk data and "raw data", which were still included in the preliminary drafts, have been deleted. Operators cannot therefore request a copy of the entire database. Rather, standardized formats for data exchange are still to be developed (recital 18 of the Amendment Regulation). This is to be done by the European Committee for Standardization (CEN). The CEN shall also look for solutions how to integrate the data into the already existing IT infrastructure of the market participants. It is not evident that this development has already been completed.
(3) However, the European Commission considers that, in the absence of a common standardized format for the exchange of information, the provisions must be interpreted in a way that fulfills the objectives of the legislation and takes into account, as far as possible, the objectives of the parties concerned, including the specific needs of independent operators. The EU legislation "implicitly" prescribes The Commission's interpretation is not binding on the Senate. The Commission's intention is to allow access in such a way that automatic processing of the data is possible and the identification of alternative spare parts is facilitated (Commission letter of 29 February 2009).05.2015, annex K27, K28, Bl. 649 d.A. 6 U 31/16). The Senate is not bound by this interpretation of the Commission. It has not been sufficiently reflected in the regulations. Similarly, the opinion of the Head of the Automotive Industry Unit of the Directorate General of 28./29.09.2011, which took the view that in particular the wording "readily accessible should speak for an access that enables automated processing (Annex K12, Bl. 145 d.A. 6 U 31/16). The same applies to the further comments and statements of the Commission, which were submitted to the files by the parties.
(4) Also from recital 12 of the Amendment Regulation no. 566/2011, no sufficiently valid arguments can be derived for the requirement of an automated electronic data exchange. While it is stated there that the information in question must include information to be made available to independent operators other than repairers. This is the only way to ensure that the entire independent market for vehicle repair and maintenance can compete with authorized dealers. However, it cannot be deduced from this that spare parts manufacturers must be provided with automated data access in order to be able to provide workshops with alternative spare parts lists by means of VIN calls.
(5) Contrary to the view of the District Court, it is also not possible to derive from Art. 13 in conjunction with Annex XIV, point. 2.1 of the Implementing Regulation no. 692/2008 a direct access to the data can be derived. According to Art. 13 the manufacturers must take the necessary precautions in accordance with Article 6 and Article 7 of Regulation (EC) No. 715/2007 and Annex XIV of the present Regulation. Annex XIV, para. 2.1 was supplemented by the amending Regulation 566/2011 as follows:
"Information on all vehicle parts with which the vehicle, identifiable by vehicle identification number (VIN) and additional characteristics such as wheelbase, engine power, equipment variant or options, is equipped by the manufacturer and which can be replaced by spare parts – provided by the vehicle manufacturer to its authorized dealers and workshops or to third parties – on the basis of the original part number, must be made available in a database easily accessible to independent market participants.
This database contains the VIN, the original part numbers, the original part designations, validity information (validity dates from-to), installation characteristics and, if applicable, structure-related characteristics.
The data contained in the database must be updated regularly. In particular, the updates must include all modifications made to individual vehicles after their manufacture, provided that this information is available to authorized dealers
Again, these provisions only ensure that access to the database is granted at all. Further the data to be held are concretized. The type of access (read access via single retrieval or access to the data itself for automatic processing) is not regulated. In particular, the vague wording"…And, if necessary, structure-related features" not be concluded that a linkage of data (spare parts + VIN) must be provided.
(6) The requirement for automated access to data also cannot be derived from the reference to the OASIS format in Art. 6 Euro5/6 Regulation. The OASIS format is a technical specification for databases, which u.A. Serves to standardize the terminology of the different manufacturer databases in order to simplify the search. Kind. 6 I S. 2 i.V.M. Fn. 23 makes it a requirement to provide the information in accordance with OASIS document SC2-D5 (cf. Also recital 8). In order to better achieve the objective of providing information in a non-discriminatory manner, the information should be provided in accordance with the technical rules of the OASIS format. Contrary to the opinion of the District Court, the OASIS format does not require the exchange of data by means of an interface. It is undisputed that the OASIS document does not concern the technical procedure for data exchange. Rather, Section 7 states:
"It is not expected that information producers would associate the VIN with each information package as meta data."
"Details of how these Internet services are implemented and how the messages are formulated, transported and interpreted are outside the scope of this Specification."
A technical procedure for exchanging data is not described. Rather, it is only a matter of standardizing the data and combining them into data packages (cf. OASIS document SC2-D5, sec. 7., S. 10, 11). This has also recognized the district court (LGU 21). Incidentally, the plaintiff's request is not for the defendant's database to be adapted to the OASIS format either.
(7) Also the remuneration model according to Ziff. 2.8 of Annex IV of the Implementing Regulation Nr. 692/2008 (Fees according to time units resp. Per individual retrieval) does not argue for data exchange beyond read-only retrieval.
Cc) The information must be presented according to type. 6 I be provided in such a way that there is no discrimination compared to the access of authorized dealers and repairers or the provision of information to them. The Defendant has stated, without contradiction, that it also provides all information on the A system to the A contract workshops in return for payment (LGU 3; Bl. 1067 d.A.). There is no discrimination of independent market participants in this respect.
3. According to all this, the complaint had to be dismissed. The decision on costs follows from Section 91 I ZPO.
4. The revision was to be admitted. Questions of fundamental importance arise, which point beyond the individual case standing to the decision (§ 542 II No. 1 ZPO). This concerns both the interpretation of Art.