PRESS INFORMATION
October 2021


The German Federal Supreme Court has ruled: Porsche may not exclude tuners from purchasing new cars and parts

It is now legally binding – sports car manufacturer Porsche may no longer prohibit its dealers from selling new Porsche vehicles, spare parts, and accessories to vehicle-tuning companies. In its ruling of July 6, 2021 (Case No. KZR 35/20), the German Federal Supreme Court (BGH) dismissed Porsche’s appeal against a corresponding ruling by the Stuttgart Higher Regional Court (OLG) (Case No. 2 U 88/17).

The Association of Automobile Tuners e.V. (VDAT) contested two clauses in Porsche’s dealer contracts as part of its successful lawsuit against the carmaker. These clauses prohibit Porsche dealers from selling new Porsche vehicles, spare parts, and accessories to vehicle-tuning companies. Exemptions were only granted if the company in question gave a written undertaking to the Porsche dealer, under threat of a contractual penalty, to refrain from using the new cars or supplied parts for vehicle-tuning purposes. The template for this letter of commitment was provided to its dealers by Porsche.



In its current ruling, the Federal Court of Justice declared that the contested contractual clauses constitute an unlawful restriction of competition under antitrust law. According to the court, the clauses restrict competition among Porsche dealers by generally prohibiting them from selling new Porsche vehicles for the purpose of presenting tuning products. The dealers are thus prevented from competing against each other for sales of new cars to vehicle-tuning companies. Furthermore, the clauses in question unlawfully restrict competition between Porsche, as a provider of factory tuning programs (Tequipment, Exclusive) on the one hand, and the corresponding services offered by independent vehicle tuners on the other.
 
The Federal Court of Justice rejected Porsche’s attempt to justify the disputed clauses as essential to the existence of its own selective distribution system. In the court’s view, vehicle-tuning companies that purchase new vehicles or parts for use in their own operations – for example, as presentation vehicles or components in their own tuning products – are not resellers.

With its ruling, the Federal Court of Justice has put a stop to Porsche’s longstanding efforts to monopolize the vehicle-tuning market for its own benefit. If Porsche continues to try to restrict the sale of new cars, parts, and accessories to vehicle tuners, it could face financial penalties, possibly including fines from the German Federal Cartel Office (“Bundeskartellamt”).

For further information on the content and scope of this ruling, please contact VDAT (www.vdat.org) and attorney Berndt Hess (www.berndt-hess.com), who represented VDAT in the proceedings against Porsche.

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 PR_VDAT_BGH_Urteil_Porsche_Tuning_final_EN.pdf
 PR_VDAT_BGH_Urteil_Porsche_Tuning_final_EN.docx



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