Mobility@McDermott: Recent legal developments in the mobility sector (06/2023) - McDermott Will & Emery

Mobility@McDermott: Recent legal developments in the mobility sector (06/2023)


1. Antitrust: European Commission adopts new Horizontal Block Exemption Regulations and Horizontal Guidelines

On 01 July 2023, two revised Horizontal Block Exemption Regulations (“HBER”) will enter into force. The European Commission adopted revised HBER on Research and Development and Specialisation Agreements and updated their Guidelines on Horizontal Cooperation that will provide businesses with clearer and up-to-date guidance to help them assess the compatibility of their horizontal cooperation agreements with EU competition rules.

The HBERs exempt research and development and specialisation agreements from the prohibition in Article 101(1) of the Treaty on the Functioning of the European Union (“TFEU’”, subject to certain conditions, most important of which is that the agreements do not include so-called “hardcore” restrictions. Hardcore restrictions include, amongst others, limiting activities outside the scope of the agreements, limitation of output or sales (with exceptions) or the restriction of territories (again with exceptions). Insofar as no hardcore restrictions are included, as a consequence, certain agreements are block exempted from the competition rules.

The new Guidelines on Horizontal Cooperation are broader in scope and provide guidance on a whole host of agreements between competitors. The Guidelines, amongst others, now provide a more detailed explanation of joint purchasing, differentiating permissible joint purchasing from buyer cartels. The Guidelines now also provide a degree of clarity on when joint bidding in response to RFQs may be permissible.

Click here for further details
Relevant for: Manufacturers

2. European Parliament positions itself on the CSDDD

Work on the EU Corporate Sustainability Due Diligence Directive (“CSDDD” or “CS3D”) continues to make progress. On June 2, the European Parliament voted on its negotiating position on the CSDDD.

The CSDDD aims to provide legal certainty by introducing mandatory due diligence legislation at EU level to hold EU companies and non-EU companies operating in the EU accountable for potential risks to human rights and the environment in their global value chains. Company directors would be required to establish and oversee the implementation of appropriate due diligence structures and to integrate them into the corporate strategy.

In Germany, the Supply Chain Due Diligence Act (Lieferkettensorgfaltspflichtengesetz) entered into force on 1 January 2023. The proposed scope of the CSDDD would go substantially beyond the current legislation. In particular, it would provide for civil law liability of companies and include comprehensive requirements on its strategy for complying with the due diligence obligations imposed, which extend to the entire value and supply chain.

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Relevant for: Manufacturers

3. European Parliament adopts new regulation to regulate battery industry

On June 14, the European Parliament approved new rules for batteries sold in the EU – ranging from design and production all the way to waste management. The aim of the regulation is to enable and control a more intensive circular economy of batteries to promote a more efficient and sustainable use of resources, i.a. by increasing recycling efficiency and material recovery.

The regulation applies to, inter alia, electric vehicle batteries and batteries used in e-bikes and e-scooters. It addresses several issues that the market regarded as hindrances regarding the development of a more successful second life market for batteries, including by means of enabling better access to data regarding the state of health and expected lifetime of the batteries for the user and third parties (by, inter alia establishing a battery passport) as well as clarifying the obligations/liabilities of manufacturers and third parties that repurpose old batteries at the end of the first lifecycle.

Next, the Council will have to formally endorse the text before it can be published and enter into force.

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Relevant for: Manufacturers, service provider in connection with second life batteries

4. The Council of the European Union and the European Parliament reach a provisional agreement on the Data Act

On June 27, the Council of the European Union and the European Parliament negotiators reached a provisional agreement on new rules for fair access and use of data laid down in the draft Data Act.

One of the main purposes of the coming Data Act is to create a framework allowing users of “connected devices” to gain access to data generated by their use including visual or audio recordings. Connected devices also cover a wide range of IoT devices going from health devices, virtual assistants to connected vehicles.

Under such circumstances, OEMs such as car manufacturers will be subject to a large set of new obligations requiring to design and manufacture products in a manner that enables easy access to data from users. Other stakeholders like data holders (which, under the latest version of the draft Data Act, refer to legal or natural persons which have the right or obligation to use or make data available) fall also within the scope of the coming regulation. In other words, even car dealers will have to share data with certain third parties to provide them with aftermarket or other data-driven innovative services.

The provisional agreement will soon be endorsed and adopted by the Council and the European Parliament.

Relevant for: Manufacturers

5. Court judgment: Repossession of rental car without court title illegal

The Higher Regional Court of Frankfurt/Main (Oberlandesgericht Frankfurt/Main, “OLG”) ruled on 25 May 2023 (2 U 165/21) that despite various provisions in the rental agreement (Mietvertrag) intended to achieve the contrary, the lessor of a vehicle does not have the right to repossess the rented vehicle from the lessee without the lessee’s consent, even after termination of the rental agreement, e.g. because the lessee has not paid the rental fees.

The OLG ruled that the provisions of the general terms and conditions in the case at hand which aimed to allow recovery of the vehicle, were invalid. Therefore, the taking of the car constituted a prohibited interference with possession (verbotene Eigenmacht) pursuant to sec. 858 of the German Civil Code. The court ruled that the lessee was entitled to compensation for the period during which they were unable to use the vehicle.

Instead of repossessing the vehicle, the lessor would have had to obtain a court title to recover the vehicle and then have it enforced by a court bailiff.

Click here for court judgment (available only in German)
Relevant for: Subscription and mobility providers; finance providers.

6. German court submits question on public procurement law to European court of justice

A dispute over electric vehicle charging stations for electric vehicles located on German highway service stations is headed to European Court of Justice.

The formerly state-owned company Tank & Rast holds a concession for 90 percent of the rest areas and service stations along Germany’s Autobahnen. Recently, the concession was extended to include the construction and operation of EV charging stations without an award procedure.

Following a complaint by competitors of Tank & Rast sued, the Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) has now referred key legal aspects of the case to the Court of Justice of the European Union. Depending on the outcome of the court’s decision, competitors may try to gain a foothold in this attractive market.

Click here for further details (available only in German)
Relevant for: Manufacturers, subscription and mobility providers