The dispute was related to the question whether the supplier (Peugeot Nederland) was under an obligation to supply the unauthorized dealers and repairers the same diagnostic equipment as supplied to the authorized Peugeot dealers and repairers. The defense of Peugeot Nederland against a claim to this effect by the group of unauthorized dealers and repairers focused on Consideration 26 of Commission Regulation (EC) 1400/2002 on the application of article 81 (3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector.
According to Consideration 26 of the Regulation it is legitimate and proper for suppliers to withhold access to technical information which might allow a third party to bypass or disarm on-board anti-theft devices, to recalibrate electronic devices or to tamper with devices which for instance limit the speed of a motor vehicle, unless protection against theft, recalibration or tampering can be attained by other less restrictive means.
According to Peugeot Nederland the diagnostic equipment supplied to the authorized dealers and repairers would allow misuse as described in Consideration 26 by third parties. Unauthorized dealers and repairers were therefore delivered a less refined version of the equipment in order to avoid any such abuse. Peugeot Nederland stated that there were no less restrictive means to avoid the possibility of abuse other than supplying the less complete/refined diagnostic equipment in view of the ‘architecture’ of the Peugeot motor vehicles. This statement was accompanied by evidence in the form of a technical report which confirmed the analysis of Peugeot Nederland. The group of unauthorized dealers and repairers did not succeed in giving evidence to the contrary and therefore the claim to be supplied with the original diagnostic equipment was rejected.
Jaap Van Till, IDI Country Expert for The Netherlands.