German Customizing Association Going to Court Over Porsche Restrictions

SEMA News—August 2018

INTERNATIONAL

By Linda Spencer

German Customizing Association Going to Court Over Porsche Restrictions

  German
  English
The German high court ruled that sports car manufacturer Porsche is prohibited from denying access to its parts and vehicles to German vehicle customizer Techart. The German association is going to court to win the right for the entire aftermarket. Pictured above a copy of the ruling by the German high court BGH.
   

“The threat for the aftermarket will remain until VDAT achieves a broader, industry-wide legal judgment, banning all monopolistic action such as that taken by Porsche,” said Harald Schmidtke, VDAT’s managing director. “Without such a ruling, other vehicle manufacturers could well follow suit and thus greatly harm our industry.”

VDAT has received word that a court date has been set for September 2018.

In the Techart case, the high court sided with the aftermarket company after many years of litigation, which included the case first being heard by two lower courts. The BGH determined that denying access to Porsche vehicles and parts is an unfair restriction on competition and fair trade. Among the major court findings in the Judgment of the BGH (12.03.2015, Ref.: I ZR 147/13, as translated into English from the original German) are the following:

  • “In consideration of all the circumstances discussed above and the intention of the law to promote freedom of competition…It constitutes an unfair obstruction of the Plaintiff’s business if the Defendants denied deliveries of new Porsche cars which allow the Plaintiff to present its customization programs and use the vehicles in its own fleet. Compared to the Plaintiff’s substantial interest in such deliveries, the Defendants’ interest in refusing such deliveries is at best of minor importance. It would not justify obstructing the Plaintiff’s ability to compete.”
  • As the court further noted: “[Techart’s] right to the delivery of new or like-new Porsche-brand vehicles as well as Porsche original parts ensues from the Act Against Restraints of Competition (GWB) [including PIWIS] and of the subscription enabling online use of technical service information; and access to the electronic Porsche parts catalog.”
  • “To the extent that the Plaintiff wishes to use PIWIS to maintain and repair Porsche production vehicles, denying this access clearly represents unfair obstruction. The same applies when the Plaintiff wishes to use PIWIS within the scope of customization. The technical tuning the Plaintiff performs on Porsche production vehicles as part of its customization work inevitably requires readjustments and checks for which PIWIS must be used. By denying access to PIWIS, the Defendants would therefore push the Plaintiff as an independent customization company out of the market to the benefit of the sales of the Defendants’ own customization programs. This cannot be justified, whether by citing the freedom of sales arrangements or the principle that nobody is obligated to support a competitor’s business. Rather, such conduct represents abuse of a dominant market position.”

Techart, based in Leonberg in the southwest of Germany and established in 1987, specializes in the customization of Porsche vehicles. This case was initiated upon the firm being notified that Porsche dealers (under the direction of Porsche) would no longer provide Techart with Porsche vehicles or parts needed to continue its customizing business.

Porsche also initiated restrictions on access to its vehicles and parts more generally through the issuance of a circular—a so-called Declaration of Commitment, as translated into English—that Porsche sent out to its dealer network. It required that dealers obtain a signed, legally binding document that commercial entities seeking to purchase vehicles or parts agree that those products will remain unaltered and that any parts purchased would be used only for maintenance and repair before a sale is allowed. The document further stipulated a 10,000 Euro (approximately $11,621 USD) penalty payable to Porsche for companies that violate the agreement.

VDAT is pursuing the matter in court, as Schmidtke noted.

“Unfortunately, there is evidence that the consequences of the BGH judgment have not yet been communicated to the Porsche sales partners,” he said. “Porsche’s refusal to sell new vehicles to commercial tuners persists, as does the refusal to supply spare parts and accessories unless the buyer signs the parts purchase agreement.”

VDAT expects many more years of litigation until the matter is resolved. Even if it wins the case this coming fall, Schmidtke said that the case will undoubtedly be appealed and will ultimately be settled by the Bundesgerichtshof high court—the same court that decided in favor of Techart. 

Following protracted litigation, the German Federal Supreme Court (Bundesgerichtshof or BGH) has ruled that it is illegal for the sports-car manufacturer Porsche to deny German aftermarket company Techart access to its vehicles and parts as well as its proprietary Porsche Integrated Workshop Information System (PIWIS) for diagnostics and information. The German Association of Automobile Tuners (Verband de Autombil Tuner or VDAT) is seeking to parlay Techart’s legal victory into a broader ruling to ensure similar access for the entire industry.

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