WHAT HAS CHANGED?
Before the revision of the MVBER a certificate from the parts manufacturer was required as proof of compliance with the requirements for spare parts or equipment according to MVBER regulations (“[…] manufactured according to the specifications and production standards provided by the motor vehicle manufacturer for the production of parts or equipment for the assembly of the motor vehicle in question”).
The need to certify anything is no longer mentioned and necessary, respectively, in the current version. The corresponding text passage (in paragraph 19 of the Guidelines) has been deleted. Thus, producers of such parts are now free to confirm that their products are considered original parts or equipment according to MVBER.
As always when it comes to legal topics, devil is in the details. Because of the voluntary nature of such confirmations, lawyers advise the respective parts suppliers/producers to critically examine the wording of their certificates used so far and, if necessary, adapt them to the new framework conditions.
WHAT NEEDS TO BE CONSIDERED?
Under the current framework conditions, confirmations may be issued voluntarily. However, these confirmations must not give the impression that the confirmation itself has legal character (like the formerly necessary certificate had). Otherwise it could be regarded as misleading and – based on the lawyers’ opinion – expose the issuer to risks under competition law. This may be particularly relevant for independent suppliers/producers who also supply to workshops authorised by vehicle manufacturers (VM) as such a confirmation must not suggest that it improves the procedural situation of an authorised workshop in the case of an allegation of a breach of contract by the VM concerned.
What also still needs to be considered: Confirmations must not claim that MVBER’s guidelines directly prescribe quality requirements for spare parts. MVBER only determines which requirements a VM may issue to its authorised workshop with regard to the use of (independent) spare parts; this means: Like it was before VM can only prohibit the authorised workshop from using original parts or equipment from the independent aftermarket (IAM) if it reimburses the workshop for a specific work. This is the case, for example, in the context of recalls or warranty repair work. Normally, however, the authorised workshop cannot be prevented by the vehicle manufacturer from obtaining and installing original parts or equipment from the IAM.With regard to the wording of a confirmation formulations such as the following examples should be avoided:
- “Certification of parts quality … in accordance with paragraph 19 and 20 of the Supplementary Guidelines of MVBER …”.
- “Our products meet the requirements for automotive spare parts, in particular for use in the context of maintenance and repairs in authorised workshops.”
WHAT COULD A CONFIRMATION LOOK LIKE UNDER THE CURRENT FRAMEWORK CONDITIONS?
This sample text, which is also recommended by FIGIEFA, can serve as an orientation guide for confirmations – especially in correspondence with authorised workshops:
“According to paragraph 19 of the Supplementary Guidelines to the Motor Vehicle Block Exemption Regulation, the vehicle manufacturer may not prevent its authorised partners from using third party parts which have been manufactured according to the specifications and production standards of its original equipment parts. The same applies to so-called parts of matching quality which, due to their nature, cannot jeopardise the reputation of the authorised repairer network concerned (paragraph 20 of the Guidelines). We hereby confirm that the parts offered by us are either ‘original parts’ within the meaning of paragraph 19 or ‘parts of matching quality’ within the meaning of point 20 of the Guidelines.”
Note: Of course, the information and claims given in a confirmation must correspond to the facts. Vehicle manufacturers can provide evidence if a certain spare part does not meet the respective requirements (Paragraph 20 of the Guidelines: “In order to be considered as ‘matching quality’, parts must be of a sufficiently high quality that their use does not endanger the reputation of the authorised network in question. As with any other selection standard, the motor vehicle manufacturer may bring evidence that a given spare part does not meet this requirement.”)
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