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Now it is legally binding: Sports car manufacturer Porsche can no longer prohibit its dealers from selling new Porsche vehicles, spare parts and accessories to tuning companies. The Federal Court of Justice (BGH) rejected the appeal of Porsche against a corresponding judgment of the Higher Regional Court (OLG) Stuttgart (Az. 6 U 2021/35) in a judgment of July 20, 2 (Az. KZR 88/17). With its successful lawsuit against Porsche, the Association of Automobile Tuners eV (VDAT) attacked two clauses in the Porsche dealer agreements. They prohibit Porsche dealers from selling new Porsche vehicles, spare parts and accessories to tuning companies. Exceptions were only made if the tuning company undertook in writing to the respective Porsche dealer, threatening a contractual penalty, not to use the new cars or parts supplied for tuning purposes.
impermissible restraints of competition
The model of the declaration of commitment was given to the dealers by Porsche. In its current judgment, the Federal Court of Justice evaluates the contested contractual clauses as restrictions on competition that are inadmissible under antitrust law. According to the court, the clauses restrict competition among Porsche dealers by generally excluding them from selling new Porsche vehicles for presentation purposes for tuning products. This prevents dealers from competing with one another when selling new cars to tuning companies. Furthermore, the clauses inadmissibly restrict competition between Porsche as a provider of in-house tuning programs (Tequipment, Exclusive) on the one hand and the corresponding offers from independent tuners on the other.
The Federal Court of Justice rejected Porsche's attempt to justify the contested clauses as essential for the continued existence of its own selective sales system. Tuning companies that purchase new vehicles or parts for use in their own operations, for example as a presentation vehicle or as a component for their own tuning products, are not resellers, according to the court. With its ruling, the Federal Court of Justice put a stop to Porsche's longstanding efforts to monopolize the tuning market for itself. Should Porsche continue to try to restrict the sale of new cars, parts and accessories to tuners, there is a risk of penalties and, under certain circumstances, fines from the Federal Cartel Office. For further information on the content and scope of this decision, please contact the VDAT (www.vdat.org) and lawyer Berndt Hess (www.berndt-hess.com), who represented the VDAT in the proceedings against Porsche.
Of course, that wasn't the end of it.
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