The BER Blog
ICDP’s BER Blog is a regular series of briefings for ICDP members on the European Block Exemption regulatory review and replacement process, ahead of the expiry of the current rules governing franchise networks in 2022/2023. We aim to walk you through the twists and turns of the debate in bite-sized chunks, keeping you informed on the developments that will be relevant to future network and dealer business strategy. The BER Blog is sent as an e-mail newsletter to member contacts, with each issue then being archived here.
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Members - do you enjoy the BER Blogs? Did you find them useful? Your feedback is welcome! Remember too that we are always happy to contribute to members’ internal work in understanding and preparing for BER-related changes, so if you think we can help, just let us know!
Access to in-vehicle data: another step on the path to regulation
By Andrew Tongue BER26/23 26th October
When not talking about the BERs and agency-related developments, this Blog has also covered on more than one occasion the endless debate over how access to in-vehicle data should be safeguarded for independent aftermarket operators of all types, including repairers.
Mercedes-Benz Australia’s legal victory over its dealers: what can we learn for agency rollouts in Europe?
By Andrew Tongue BER25/23 13th September
Right now, a very large proportion of the enquiries that we receive every day relate to agency. Everybody wants to know what is going on across Europe – where has Stellantis got to in converting the dealer agreements for its brands, which other brands have announced their plans to switch, which agreements will be ‘genuine’ and which ‘non-genuine’ agency?
Access to vehicle-generated data – simple in MVBER theory, but an unresolved challenge on the ground
By Andrew Tongue BER24/23 25th May
In the last edition of the BER Blog, we looked at the final list of changes that will be made to the EU MVBER Guidelines from 1st June. And, if you would like to explore the competition rules around aftersales and spare parts distribution agreements in more detail, please join us for our upcoming webinar on Tuesday 13th June – more details are here.
The new MVBER has landed – the key points, and the final tweaks
By Andrew Tongue BER23/23 25th April
Last week, the European Commission released the final MVBER (Motor Vehicle Block Exemption) rules package, ahead of it coming into force on 1st June. So, what does it say that we did not already know, and was it worth the wait?
Right to repair - a growing movement
By Andrew Tongue BER22/23 12th April 2023
In the last edition of the BER Blog, we looked at the recent class action lawsuits that have been launched by Tesla owners in California, alleging that the company is violating US anti-trust laws by obliging customers to bring their cars back to Tesla’s own workshops for service and spare parts, including as a condition of their warranty. The cases fit into a series of similar ‘Right to Repair’ actions that have emerged across a number of product sectors, not just in the USA, but further afield too. With regulators increasingly getting involved, we thought it would be worth taking a quick look at what is happening on both sides of the Atlantic, and what it might mean for the broader automotive sector.
Different continent, but the same issues
By Andrew Tongue BER21/23 23rd March 2023
At our recent ICDP Spring Meeting in Berlin, we presented an update on the MVBER (Motor Vehicle Block Exemption) review and replacement process – one that appears to have been treading water for the past few months since the European Commission completed its initial proposal and follow-up consultation back in September 2022. Members can download this presentation here.
Agency: what happens when the party is over?
By Andrew Tongue BER 20/22 16th December 2022
It may seem strange to be thinking about this at a time when many OEMs are still at the stages of planning or rolling out agency, but one of the less-discussed features of the format is what happens when the relationship between the principal and the agent comes to an end. And what does happen may just have grown a little more complicated following a recent ruling by the European Court of Justice.
Italy introduces new contract protections for dealers, but the rules are not the clearest …
By Andrew Tongue BER 19/22 6th September 2022
Whilst the VBER sets the overall European-level competition rules framework for dealer agreements, OEMs also need to pay attention to what goes on at national level, because sometimes local initiatives and priorities can severely complicate the task of running a consistent network strategy.
The MVBER governing aftersales and spare parts agreements: the CMA proposes to be (a little) more radical than the EC
By Andrew Tongue BER 18/22 26th July 2022
Anybody would think that the UK Competition and Market Authority (CMA) was trying to clear its desks and go off on holiday. Because, no sooner have we reported on their new final guidelines that accompany the VABEO, the UK’s new equivalent regulation to the EU VBER, than they release their long-awaited consultation on the Motor Vehicle Block Exemption (MVBER) – the extra ‘chapter’ in the rules that covers aftersales and spare parts distribution agreements in the automotive sector specifically.
The UK VABEO guidelines: the CMA does its final fettling…
By Andrew Tongue BER 17/22 22nd July 2022
Another day, and another piece in the BER jigsaw falls into place, this time with the recent publication of the final version of the UK Competition and Market Authority Guidelines to accompany the VABEO, the UK’s new equivalent regulation to the EU VBER. Whilst the final document does not contain any massive surprises, there are a number of tweaks and modifications over the previous version, and some of them have implications for the automotive sector.
Vehicle-generated data … and not a lot else: the EC’s new MVBER proposals
By Andrew Tongue BER 16/22 7th July 2022
With the regulatory process around the Vertical Block Exemption (VBER) now complete, and the new rules in place, attention is turning to the final piece in the jigsaw as far as the treatment of franchise agreements in the automotive sector is concerned, the Motor Vehicle Block Exemption (MVBER).
Finally unveiled … A (fairly) quick look at the EC’s new Vertical Block Exemption
By Andrew Tongue BER 15/22 18th May 2022
With the end of May deadline for the expiry of the old Vertical Block Exemption Regulation (VBER) looming large on the horizon, the European Commission (EC) has now hurriedly pulled the wraps off the final version of Regulation 720/2022, the new VBER governing ‘vertical agreements’, so including the dealer agreements that operate in our sector.
Is the CMA raising the bar on operating agency in the UK?
By Andrew Tongue BER 14/22 7th April 2022
One of the many consequences of Brexit is that the UK now needs to create its own regulations to cover situations that were previously handled under the EU legislative umbrella. This raises the possibility of divergence between the UK and the EU legal frameworks emerging as domestic concerns, priorities, and indeed case law are reflected in the new UK-only rules. One such area is the BER, where the UK CMA (Competition and Markets Authority) has been busy creating the VABEO (Vertical Agreements Block Exemption Order), the UK-equivalent of the EU VBER (Vertical Block Exemption Regulation), ready for it to enter into force on 1st June.
Unlocking access to the connected car?
By Andrew Tongue BER 13/22 6th April 2022
In this edition of the BER Blog, we are going to step very slightly, but only very slightly, outside the domain of the BER. This is because, whilst we continue to wait for DG-Competition’s consultation on proposed changes to the Motor Vehicle Block Exemption (MVBER) guidelines to get underway, over in other parts of the European Commission (EC) policy-making machine, things have been hotting up on the closely-related topic of access to in-vehicle data.
Dual distribution – the European Commission has a change of heart
By Andrew Tongue BER12/22 8th February 2022
Last October, I wrote an edition of the BER Blog with the title “Dual Distribution – has the European Commission got it wrong?”. It reported on the strength of negative stakeholder feedback the EC was getting over one change in the draft VBER in particular, namely the proposed treatment of ‘dual distribution’.
When is an extension not an extension?
By Andrew Tongue BER11/22 24th January
Late last week, news emerged that the European Commission will propose to extend the Motor Vehicle Block Exemption (MVBER) for a further 5 years from its 31st May 2023 expiry, which would see the current rules maintained though to 2028. However, it will also be looking to make ‘limited and targeted updates’ to the Guidelines that accompany the rules. So, have we just taken a big step closer to the outcome of the MVBER review process? Well, not really, at least not quite yet …
One step closer. The CMA decides …
By Andrew Tongue BER10/21 18th November
We are focusing on the UK in this edition of the BER Blog because the Competition and Markets Authority (CMA) has now, with very little fanfare or indeed media coverage, published its final recommendation for the UK’s incoming equivalent (the VABEO) to the European Vertical Agreements Block Exemption (VBER) – the competition rules that govern franchise distribution in general, and new car sales agreements in our sector in particular.
Dual Distribution – has the European Commission got it wrong?
By Andrew Tongue BER09/21 11th October
When the European Commission launched its drafts of the new Vertical Agreements Block Exemption (VBER) and accompanying Vertical Guidelines (VGL) back in July, it invited feedback from interested parties.
Giving with one hand … taking with the other? The EC’s draft Vertical Block Exemption
By Andrew Tongue BER08/21 16th July
Block Exemption developments continue to roll out thick and fast! The European Commission had said that it hoped to publish the drafts of its new Vertical Block Exemption and Guidelines (it now seems to prefer the term ‘Vertical’ to ‘General’, so we will now follow its wording too) before the Summer break, and it has indeed now done so, leaving a pile of reading for the rest of us whilst it enjoys its holidays …
Taking a different path? The UK CMA’s Block Exemption proposals
By Andrew Tongue BER07/21 6th July
As a UK citizen, it is all too easy to forget, when following the twists and turns of the Block Exemption debate in Brussels, that the new EU rules to be introduced from 1st June 2022 will not apply here. However, we are now one big step closer to knowing what does lie ahead for the regulation of dealer agreements in the UK following the recent publication of the Competition and Market Authority (CMA) consultation document on the ‘retained Vertical Agreements Block Exemption’. So, are the EU and the UK set to go different ways in how franchise agreements are treated, and what would this mean?
Evaluating the Automotive Block Exemption – a speed read of the European Commission’s May 2021 report
By Andrew Tongue BER06/21 28th May
Why do these reports have a habit of being published late on Friday afternoons, especially ahead of a Bank Holiday weekend here in the UK? Although, of course, the UK calendar is no longer a major concern of our European friends … But perhaps we should be grateful, because here is a document that has appeared bang on schedule, and which runs to a manageable 16 pages (although the accompanying Staff Working Document and other contributions run to several magnitudes more than this …).
The growth of the ‘company store’
By Andrew Tongue BER05/21 6th April 2021
Over in the USA, leading sportswear brand Nike has just announced plans to terminate its sales agreements with 7 major retail chains including Urban Outfitters and Macy’s, this coming on top of commitments already made last year to cut ties with 9 major wholesalers representing over 1,000 physical retailers. Instead, it will be focusing on direct-to-consumer sales via its digital channels, and via a network of 200 Nike Live small-format wholly-owned stores, as it seeks to capture a greater share of margin on its products. Its German rival Adidas has recently announced similar plans, and is targeting 80% of its growth over the next 4 years to come from its direct online channels and wholly-owned stores.
Wearing two hats
By Andrew Tongue BER04/21 12th February 2021
Much of the BER review process involves waiting for the next scheduled output to emerge from the European Commission. Sometimes these outputs are on time, sometimes they aren’t … It is rare for something to appear that wasn’t fully expected, but we are living in strange times at the moment, and this has just happened. So, in this edition of the BER Blog, we will take a look at the Commission’s newly-published Working Paper on ‘dual role agents’, because it contains a number of highly relevant points for the sector, and its current discussions about agency …
Getting the balance right
By Andrew Tongue BER03/21 4th January 2021
The scenes of the past few months have really underlined, if this was even needed, the challenges now facing physical retail, with empty High Streets and shuttered windows on the one hand, and queues of delivery vans and piles of e-commerce cardboard boxes outside front doors on the other. For very many of us, the Christmas period has been spent largely online, whether it was buying presents from Amazon, or meeting up with friends and family on Zoom.
lifting the covers
By Andrew Tongue BER02/20 23rd November 2020
The European Commission’s recently-published impact assessment/policy options document gives us the first indications of what they are thinking, and of how the current rules might change, so ‘lifting the covers’ just a little ...
What happens next?
By Andrew Tongue BER01/20 15th October 2020
In the first edition of the BER Blog, we will bring you up to date on the regulatory timetable for the review and replacement of the General and Automotive Block Exemption regulations, because there has been a flurry of developments in recent weeks.