Traders are becoming bolder

Traders are becoming bolder

As reported, a German court has upheld a lawsuit brought by dealers against a car manufacturer for potential abuse of its market power. Specifically, it is about Opel and the Association of German Opel Dealers (VDOH), which has defended itself against the incalculability of Opel's remuneration system, especially against the unilateral options for changes, including interference with the margin.

The cause is reminiscent of the Büchl case in Austria. Last year, the Upper Austrian Peugeot dealer Büchl was upheld by the Supreme Court in a long-running legal dispute against Peugeot Austria (PSA). Peugeot has therefore abused its market power over dealers for years.

Both cases concern brands owned by the parent company Stellantis. On top of that, he terminated his dealer contracts on May 31, 2021 with two years’ notice. To this day, dealers are hanging in the air, not knowing whether and if so how things will continue for them as authorized dealers of various Stellantis brands after 2023. The automotive industry asked a man who is very familiar with the matter: Dr. Peter Thyri, the lawyer and antitrust law expert who defeated the “Goliath” PSA in court for “David” Büchl.

Mr. Dr. Thyri, as the legal representative of the car dealer Büchl and a specialist in competition law, how did you perceive the latest judgment in Germany? Is the case at all comparable to that of Büchl/PSA?

Yes, absolutely. The dealer association sued for an injunction, although the German proceedings only concerned the one-sided requirements for remuneration. But here, too, the ultimate question is whether there is an abuse of market power by the group. And the judges in Frankfurt actually determined that the importer had a dominant market position, simply because a brand had “no competitors” in the geographically relevant national market compared to its dealers. In this respect, the German verdict was even somewhat stricter than the Austrian one. And in the case of Opel, not only antitrust law was applied in Germany, but also civil law. The abuse of market power is also immoral.

Do you think that the Büchl case you won was groundbreaking as a kind of “door opener” for the industry across Europe?

In fact, after the Büchl ruling against PPE, the industry throughout Europe was shaken. Many smaller traders who are in a relationship of dependency do not dare to take their powerful contractual partners to court. This “fear factor” is particularly a problem in the automotive industry. Every case that is won encourages others to perhaps dare to defend themselves.

The German ruling could contribute to this...

Absolutely. It's like a snowball that can eventually become an avalanche. By the way, the Büchl case was played down by the manufacturer representatives in Germany. It was said that this was an isolated case and only possible in Austria, etc. Now everyone can see: No, a similar lawsuit is also possible under German antitrust law. Now the German ruling could have a feedback effect on Austria. The finding of market dominance for the brand over the dealers can be considered legally secure, as well as the fact that the manufacturer's unilateral specifications regarding dealer remuneration are abusive, without having to examine their appropriateness. All of this also played a role in the Büchl case, but has now also been clarified separately.

What's next with the Opel case?

Opel has already signaled that it has no understanding of the ruling. But the question now is: Do you really want to continue fighting this out in court and exhaust the legal remedies or do you perhaps want to reach an agreement with the dealers?

And what is the status quo in Austria? To what extent has PSA already reacted to the Büchl ruling?

What has actually been implemented is currently being evaluated. But to be honest, my euphoria is limited. There were only selective adjustments. As is known, dealer contracts across Europe have been terminated and new contracts are pending. There was no common approach to implementing the OGH's requirements. As I said, we will now evaluate all of this carefully and then we will see what happens next.