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1Automobile Newsletter No . 9 | 2020

© Gómez-Acebo & Pombo Abogados, 2020. All rights reservedDisclaimer: This digest is provided for general information purposes only and nothing expressed herein should be construed as legal advice or recommendation.Design: José Á. Rodríguez, Ángela Brea and layout: Rosana Sancho Muñoz • Translation and adaptation: John Woodger

No . 92020

Automobile Newsletter Ainara Rentería TazoCounsel and Head of Automotive at Gómez-Acebo & Pombo


© Gómez-Acebo & Pombo Abogados, 2020. All rights reserved

Disclaimer: This digest is provided for general information purposes only and nothing expressed herein should be construed as legal advice or recommendation.

Design: José Á. Rodríguez, Ángela Brea and layout: Rosana Sancho Muñoz • Translation and adaptation: John Woodger

ContentsJudgments and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

` Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

— List of Judgments of different Companies Courts from

July to December 2019 in relation to claims for damages by those affected

based on the European Commission’s decision to sanction different brands

of trucks due to anti-competitive practices. Judgments 265/2019 (Madrid),

225/2019 (Madrid), 208/2019 (Valencia), 237/2019 (Barcelona),

188/2019 (Pontevedra) and 1265/2019 (Valencia), among others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

— Judgment no. 413/2019 of the Madrid Provincial Court of 12 September 2019.

Damage caused by loss of earnings upon immobilisation of a carsharing fleet vehicle . . . . . . . . . . . 8

— Clarification of Judgment of the Madrid Provincial Court of 13 September 2019.

4,000 euros in damages to Dieselgate case consumer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

— Decision of the Central Pre-Trial Examining Court, 3 October 2019, PSV case.

Criminal complaint lodged by professional taxi drivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

— Judgment of the Madrid High Court of Justice (Employment Division) of 7 October 2019,

Judgment No. 831/2019. Unconscionable clause in the contract for the transfer

of a vehicle to the worker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

— Decision of the Supreme Court (Criminal Division) of 9 October 2019. Question of territorial

jurisdiction in a case of possible fraud and false documentation in relation to a

vehicle operating lease (renting) contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

— Decisions of the Supreme Court (Judicial Review Division) of 11 October

and 25 October 2019, dealer cartel procedure, confirming interest in what are the

requirements for the application of the exceptional suspension measure provided

for in Article 37(4) of the Competition Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


— List of Judgments of the Provincial Court of Zaragoza,

judgments no. 120/2019 of 18 October, 122/2019 of 24 October,

127/2019 of 28 October and 128/2019 of 28 October. Damages in the “trucks case”

and possible joinder of causes of action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

— List of Supreme Court Decisions (Judicial Review Division) rejecting the appeal

by the network of dealers found liable for anti-competitive practices against the

judgments of the Audiencia Nacional of 31 October, 7 November, 15 November, 22

November and 29 November 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

— Decisions of the Supreme Court (Civil Division) of 5 November, 12 November, 26 November,

3 December, 10 December and 17 December 2019. Damages in the

“trucks case” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

— List of Judgments of the Companies Court of Almería. Judgments Nos. 217/2019

of 20 November and 218/2019 of 21 November 2019. Damages in the “trucks case”,

action to void sale and purchase for vitiated consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

— Decisions of the Supreme Court (Judicial Review Division), 22 November 2019.

“Dealer cartel” on the violation of the right to the inviolability of the domicile . . . . . . . . . . . . . . . . . . . . 12

— Decisions of the Supreme Court (Judicial Review Division), 29 November 2019,

“YUNCAR MOTOR S.L“ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

— Judgment of the Supreme Court (Civil Division) of 17 December 2019.

Judgement no. 674/2019. Should damage caused by a parked vehicle be considered

within the concept of vehicle traffic for the purposes of insured civil liability? . . . . . . . . . . . . . . . . . . . . . 13

` Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

— Judgment of the Court of Justice of the European Union (Second Chamber),

Gesamtverband Autoteile-Handel eV v KIA Motors Corporation, 19 September 2019.

Access to the database on vehicle repair and maintenance by independent repairers

in electronic format. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

` Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

— Guide to the use of cookies. Spanish Data Protection Agency, November 2019 . . . . . . . . . . . . . . . . . . . . 14

— Instruction from the Directorate-General for Traffic 2019/S-149 TV-108,

on personal mobility vehicles, of 3 December 2019. PMV concept, insurance, complaints . . . . . . . . 16

— Climate Change Act Amendment (Catalonia) Act 9/2019 of 23 December

with regard to the tax on carbon dioxide emissions from mechanically propelled

vehicles. Official Journal of Spain of 14 January 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

` Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

— Opinion of the European Economic and Social Committee on ‘Report from

the Commission to the European Parliament, the Council, the European Economic

and Social Committee, the Committee of the Regions and the European

Investment Bank on the Implementation of the Strategic Action Plan on Batteries:

Building a Strategic Battery Value Chain in Europe, C 353, 18 October 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . 18

— Commission Delegated Regulation (EU) 2019/1745 of 13 August 2019 supplementing

and amending Directive 2014/94/EU of the European Parliament and of the Council

as regards recharging points for L-category motor vehicles, shore-side electricity

supply for inland waterway vessels, hydrogen supply for road transport and natural

gas supply for road and waterborne transport and repealing Commission Delegated

Regulation (EU) 2018/674 (OJ L 268, 22 October 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

— Proposal for a Regulation of the European Parliament and of the Council

on the labelling of tyres with respect to fuel efficiency and other parameters,

amending Regulation (EU) 2017/1369 and repealing Regulation (EC) No 1222/2009 Brussels,

6 December 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

— UN Regulation No 14 — Uniform provisions concerning the approval of vehicles

with regard to safety-belt anchorages [2019/2141]. OJ L 324, 13 December 2019 . . . . . . . . . . . . . . . . . 20


— Regulation (EU) 2019/2144 of the European Parliament and of the Council

of 27 November 2019 on type-approval requirements for motor vehicles and their trailers,

and systems, components and separate technical units intended for such vehicles,

as regards their general safety and the protection of vehicle occupants and

vulnerable road users, amending Regulation (EU) 2018/858 of the European Parliament

and of the Council and repealing Regulations (EC) No 78/2009, (EC) No 79/2009 and (EC)

No 661/2009 of the European Parliament and of the Council and Commission

Regulations (EC) No 631/2009, (EU) No 406/2010, (EU) No 672/2010, (EU) No 1003/2010,

(EU) No 1005/2010, (EU) No 1008/2010, (EU) No 1009/2010, (EU) No 19/2011, (EU) No 109/2011,

(EU) No 458/2011, (EU) No 65/2012, (EU) No 130/2012, (EU) No 347/2012, (EU) No 351/2012,

(EU) No 1230/2012 and (EU) 2015/166. OJ L 325, 16 December 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

` News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

— Valencia will have “carsharing” after a year and a half of delay in the City Council . . . . . . . . . . . . . . . . . . 22


Judgments and decisions

Spain

List of Judgments of different Companies Courts from July to December 2019 in re-lation to claims for damages by those affected based on the European Commission’s decision to sanction different brands of trucks due to anti-competitive practices. Judgments 265/2019 (Madrid), 225/2019 (Madrid), 208/2019 (Valencia), 237/2019 (Barcelona), 188/2019 (Pontevedra) and 1265/2019 (Valencia), among others

The affected parties are bringing actions to claim damages in accordance with Article 1902 of the Civil Code, as a consequence of unlawful acts proven on the basis of the European Commission’s Sanctioning Decision1 against MAN, DAF, IVECO, DAIMLER MERCEDES and VOLVO/RENAULT.

The judgments address the following topics of interest:

� Standing to sue

Proof of acquisition and ownership of the truck determines the standing to sue due to the direct or indirect contractual relationship with the defendant. In those judgments in which the claimant acquired his truck through a capital (finance) lease contract when the European Commission’s decision imposing sanctions excluded this type of contract from its subject matter scope (ratione materiae), it is stated that it is indifferent for these purposes “because what is relevant and decisive is the overcharge and not the legal means by which that acquisition was made”. It would be a different matter if whoever had concluded a capital lease with one of the addressees of the European Commission’s decision imposing penalties had sought to claim da-mages arising from an overpricing in the lease itself, arising from its own terms and conditions and not to the price of the truck.

However, Judgment 5/2020 of 20 December 2019 of the Jaen Court of First Instance No. 4 and Companies Court attributes the effects of the claimed harm to the time when the lease would have been completed (in this case, at a later time than the duration of the infringement) and rejects the claim in full; Judgments 193/2019 of 25 July and 335/2019 of 17 December, both of the Valencia Companies Court No. 3, also reject in full the claims for lack of standing to sue due to lack of proof of consummation or payment of the lease instalments in question.

1 Published on 6 April 2017. The following conduct was penalised: the exchange between the addressees of gross price lists and information on gross prices, which facilitated the calculation of the gross price for each possible truck configuration and made the addressees better able to calculate their competitors’ approximate current net prices; the exchange of configurators helped the comparison of own offers with those of competitors; agreements and/or concerted practices on pricing and gross price increases in order to align gross prices in the EEA; meetings involving senior managers agreeing gross price increases; exchange of delivery periods and country-specific general market forecasts, subdivided by countries and truck categories.


� Standing to be sued

The fact of being the subject of a European Commission sanctioning decision confirming the existence of practices that infringe competition law, implies the standing to be sued for da-mages before the jurisdiction of the Member States. However, there are important nuances as shown by Judgment 59/2019 of 10 September of the Jaen Court of First Instance No. 4 and Companies Court, which dismisses in its entirety the claim filed against one of the entities sanctioned by the European Commission on the grounds that “in view of the overpricing alle-gedly imposed by a subsidiary, from which the vehicle is ultimately acquired [...] the claim is not directed against the parent company which would be liable for the conduct of its subsidiaries [...] but against another subsidiary [...] which has no connection with the sale of the vehicle”.

For a subsidiary to be held liable for the conduct of the sanctioned foreign parent company, if the subsidiary has not committed the infringement defined in the Decision, and its activity cannot be said to have been an intrinsic part of the sanctioned activity, the subsidiary cannot be held liable.

� Limitation period for bringing an action: conflict between the Damages Directive 2014/104/EU that sets a period of five years and the one-year period provided for in the Civil Code.

The five-year limitation period in force in Spain does not apply retroactively from 27 May 20172. Some courts, however, have understood that in cases where the European Commission’s sanc-tioning decision is subsequent to the entry into force of the aforementioned Directive but prior to its transposition in Spain, it does require that the purpose of this Directive be taken into account in the application of national law. Almost unanimously, the courts apply the one-year limitation period of Article 1968(2) of the Civil Code, although some do so taking as the dies a quo or beginning of the calculation of the annual limitation period the moment at which they consider that the potential victims of the infringement have the maximum possible information about the infringement and its circumstances, that is, with the publication on 6 April 2017 of the Summary of the Decision, while others consider that the dissemination of the Commission’s press release when it adopted the sanctioning decision - on 19 July 2016 - was sufficiently com-plete to fix at that time the beginning of the calculation of the annual limitation period, with the dismissal, therefore, of the claims.

� Expert evidence and damage assessment.

In view of the difficulties of carrying out an assessment of the damage, case law has determined in these judgments that it is sufficient to do so by representing a hypothetical, though reasona-ble, scenario (the purchase price that the truck acquired would have had if the cartel had not

2 Royal Decree-law 9/2017, in transposition of the Damages Directive 2014/104/EU, added Article 74 to the Competition Act 15/2007 of 3 July, establishing a limitation period of 5 years that has been in force since 27 May 2017.


existed), since there is no specific formula, either in Directive 2014/104/EU or in Act 15/2007, to quantify the damage effectively.

If the court considers that there is actual damage, as is the case in several of the judgments analysed, but a correct assessment of the damage has not been carried out, in some cases the court has made a judicial estimate of the amount of the damage. The courts base their decision on the fact that the Commission accepts that 93% of cartels set their overpricing at least at a threshold between 0% and 10% (Oxera, p. 91, fig. 4.1), on the understanding that this would be the most conservative estimate possible and also consistent with statistical margins of error. By virtue of the foregoing, some of the judgments from among those analysed estimate, based on said report, a percentage of the overpricing of 5% and others set it at 10%, which would also be within the referred threshold, in the latter case stating that in the production of evidence, greater fault can be attributed to the defendant. Other judgements show the application of a higher percentage also based on the Oxera report. However, there are also judgments, even from those courts that sometimes make a judicial estimate of the claimed damage, that dismiss the claim in its entirety because of the claimant’s inadequate evidentiary activity (among them, for example, Judgment 324/2019 of the Valencia Companies Court No. 3 of 10 December or Judgment 195/2019 of the Zaragoza Companies Court No. 1 of 25 October).

Judgment no. 413/2019 of the Madrid Provincial Court of 12 September 2019. Damage caused by loss of earnings upon immobilisation of a carsharing fleet vehicle

EYSA PSA SMART MOBILITY, S.A. (EMOV) is appealing against the judgment that does not remedy its claim for damages against MAPFRE in respect of the loss of earnings caused by the EMOV fleet vehicle damaged by the MAPFRE-insured vehicle having been in a repair shop for 60 days. EMOV used the daily rate for the use of the vehicle as the basis for calculating compensation for loss of earnings.

The Provincial Court opines that there is a causal nexus between the facts and the damage caused, but does not believe that the claim for loss of earnings was made on the basis of objective and reasonable criteria because “the payment by the user of the service on a daily basis of use is not identifiable with the average profit of the company marketing the fleet” and that “it would have required a greater evidentiary effort”.

Clarification of Judgment of the Madrid Provincial Court of 13 September 2019. 4,000 euros in damages to Dieselgate case consumer

VOLKSWAGEN AUDI ESPAÑA, S.A. requested clarification of the judgment affirming lower court decision ordering the payment of 4,000 euros in damages for losses caused in the case known as


‘Dieselgate’3, the reasoning of the ruling being different to the prior ones. The Court states that it has pronounced itself exercising its discretion and that the lump sum set as compensation to the injured party has been adjusted to take account of “the depreciation that the vehicle has undoub-tedly suffered”.

Decision of the Central Pre-Trial Examining Court, 3 October 2019, PSV case. Criminal complaint lodged by professional taxi drivers

The complaint lodged by professional taxi drivers against CABIFY, MAXY Mobility and UBER for crimes of fraud, against the Public Treasury, against workers’ rights, of unfair administration, of mo-ney laundering and of price manipulation with deceit is rejected. The examining court concludes that the facts do not constitute a criminal offence, since the defendants could not expel from the market the drivers who had obtained a taxi licence from the Public Administration, and they could not increase the cost to the detriment of the consumers, which is the effect that must be produced in relation to the crime defined in Article 284(1)(1) of the Criminal Code (crime of altering the price of things with deception) or to those reported for not being related (crime of unfair administration, against the Public Treasury, against workers’ rights, of fraud and of money laundering).

Judgment of the Madrid High Court of Justice (Employment Division) of 7 October 2019, Judgment No. 831/2019. Unconscionable clause in the contract for the transfer of a vehicle to the worker

A worker seeks voidness of clause of a contract for the transfer of a vehicle concluded with the em-ployer, by virtue of which, in the event of termination of the employment contract due to voluntary resignation within the last six months of the operating lease (renting), the worker must pay all the renting instalments outstanding until the end of the contract. If the worker requests early termi-nation of the contract, he or she must pay for any excess mileage that may be calculated by the company that owns the vehicle.

The High Court of Justice does not consider that clause to be void since the judgment of the Court of First Instance did not find any vitiated consent and the clause did not infringe any mandatory law, and therefore has an offsetting effect on the worker’s severance pay. The Court considers that the worker could have notified his voluntary resignation at another time without penalty or chosen another formula for the use and enjoyment of the company car, in accordance with the policies of the employing company.

3 The Volkswagen Group was accused of falsifying the values of nitrogen oxides (NOx) emitted by the engines of its vehicles by means of software that activated a mechanism to reduce emissions of polluting gases when it detected that the vehicle was being tested and thus complied with the emission limit set in Regulation (EC) No. 715/2007 - “Euro 5 and Euro 6 Regulation”. Finally, it has been ordered in several courts such as the Court of First Instance No. 12 of Valladolid to compensate the owner of the vehicle.


Decision of the Supreme Court (Criminal Division) of 9 October 2019. Question of te-rritorial jurisdiction in a case of possible fraud and false documentation in relation to a vehicle operating lease (renting) contract

Question of territorial jurisdiction presented to the Supreme Court in relation to a crime of fraud and falsehood in a commercial document, when a private individual signs a renting contract with ALD AUTOMOTIVE without being a representative of the contracting company and presenting a false bank guarantee.

The Court considers that the case should continue to be heard by the Court of Gijón where the cri-minal complaint was lodged after calling in the guarantee, because it is not clear where the crime was committed. In this case, there are doubts as to the place of conclusion of the renting contract - which was signed in Madrid on the one hand and in Gijón on the other - and it is not certain, in the Court’s view, whether the documents were forged or delivered in Madrid, where the complainant is domiciled.

Decisions of the Supreme Court (Judicial Review Division) of 11 October and 25 October 2019, dealer cartel procedure, confirming interest in what are the requi-rements for the application of the exceptional suspension measure provided for in Article 37(4) of the Competition Act

The Supreme Court identifies as suitable for consideration the appeal lodged by dealers found lia-ble by the decision of Spanish Markets and Competition Authority (CNMC) of 28 May 2015 in rela-tion to the expiry of the sanctioning procedure for infringement of Article 1 of the Competition Act (LDC), as it considers that it is of objective case-law-building interest to determine whether Article 37(1) LDC allows for the inclusion in the provided extension of any procedure - at the discretion of the Public Administration - or must be limited to exceptional situations that do not form part of the ordinary conduct of the procedure or which are the specific guidelines and requirements that must govern the application of the exceptional suspension measure provided for in Article 37(4) LDC. As is well known, several suspensions occurred in the CNMC procedure.

We will follow up on the Supreme Court’s ruling.

List of Judgments of the Provincial Court of Zaragoza, judgments no. 120/2019 of 18 October, 122/2019 of 24 October, 127/2019 of 28 October and 128/2019 of 28 October. Damages in the “trucks case” and possible joinder of causes of action

In those judgments, the appeals of the appellants seeking the appropriate joinder of causes of action requested at first instance and rejected, in respect of non-contractual liability actions for collusive arrangements between manufacturers (“trucks case”), were allowed.


The Provincial Court considers that such joinder is correct because the subject matter of the dispute is based on a single objective fact that meant unified facts; all the injured parties acquired a ve-hicle of the same defendant from dealers belonging to its distribution network, and that conduct produced certain alleged damage; the expert evidence is the same for all, only certain variables varied for the calculation of the excess cost.

In view of these facts, the existence of contradictory case law is cited, with the Provincial Court opting for the majority case law which establishes that it is not necessary for the cause of action of the joinder to be identical; it is sufficient that there be a connection between them to be dealt with in the same proceedings, a conclusion which is also reached in the judgments analysed.

List of Supreme Court Decisions (Judicial Review Division) rejecting the appeal by the network of dealers found liable for anti-competitive practices against the jud-gments of the Audiencia Nacional of 31 October, 7 November, 15 November, 22 November and 29 November 2019

The Supreme Court rejects the ‘cassation’ appeal on the grounds that the case is of no obvious objective interest, since there is already case law on the content of the infringements according to subject matter (proven facts of participation in a cartel) and because the appeal is merely a recon-sideration of the evidentiary framework and the assessment made of it.

Decisions of the Supreme Court (Civil Division) of 5 November, 12 November, 26 November, 3 December, 10 December and 17 December 2019. Damages in the “trucks case”

As mentioned in the previous Automobile Newsletter (No. 8) in cases of the Supreme Court (Civil Division), June 18, 2019 and July 9, 2019, (among others), the Supreme Court considered that the venue closest to the regulation of private competition law actions is that established for cases of unfair competition, as provided in Article 52(1)(12) of the Civil Procedure Act, which confers juris-diction on the court of the place where the defendant has his establishment, and in the absence of such court, on the court of the domicile or place of residence. As a last subsidiary venue, when the defendant is not domiciled in Spain, the venue shall be that of the place where the act was performed or where its effects occur. The place where the harmful act is carried out, which is the cartelised agreement, may lead to confusion, but the same is not true of the place of production of effects, which is where the claimant sees the surcharge passed on, which is the place of purchase of the vehicle. And, if the claim could lie with judges of more than one place, the claimant may choose any of them.


List of Judgments of the Companies Court of Almería. Judgments Nos. 217/2019 of 20 November and 218/2019 of 21 November 2019. Damages in the “trucks case”, action to void sale and purchase for vitiated consent

These are two judgements handed down in the cases commonly referred to as the “trucks case”. The peculiarity of these judgments is that, in addition to the action for damages under Article 1902 of the Civil Code, there is also an action to void for vitiated consent under Article 1265 of the Civil Code and invalidity of the contract. All defendants, RENAULT TRUCKS S.A.S. and VOLVO GROUP ESPAÑA S.A., in one of the judgements, and DAF TRUCKS N.V. and DAF VEHICULOS INDUSTRIALES S.A.U. in the other judgement, claim lack of standing to be sued because the vehicle sale and pur-chase contract was formalised with the dealer and they were not a party to the same. This action against all the defendants fails for the above reasons.

With regard to the action under Article 1902 of the Civil Code, the Court concludes that it is clear from the European Commission’s Sanctioning Decision that RENAULT TRUCKS S.A.S. and DAF TRUCKS N.V. have standing to be sued as they are the addressees of the European Commission’s Sanctioning Decision, while VOLVO GROUP ESPAÑA S.A., Spanish subsidiary of RENAULT at the time, was not an addressee of the sanctioning decision (nor was RENAULT TRUCKS ESPAÑA, that succeeded it), as neither was DAF VEHICULOS INDUSTRIALES S.A.U.. It is concluded that the doc-trine of the judgment of 10 April 2014 - ‘economic unity’ - cannot be applied to subsidiaries either. This doctrine, which allows liability for competition infringements to pass between subsidiary and parent company, only deploys its effects from the bottom up (from the subsidiary to the parent company) and not vice versa.

As regards the damage, a weighted assessment is made on the basis of the so-called Oxera report and the Practical Guide to quantifying damage, although these are non-binding and purely in-formative documents. In view of the above, the examining court estimates that the Oxera report shows that 70% of the cases in which the excess cost is between 10% and 40%, the highest percen-tage, more than half, is between 10% and 20% and the adjudger considers it more appropriate to opt for the modal percentage range, i.e. the one that is repeated on more occasions (>)10-20%>) and within this for the average, i.e. 15% as the value of the estimated surcharge which is the one applied to the case of DAF TRUCKS N.V. In the case of RENAULT TRUCKS S.A.S., it is established that since the claimant has requested a percentage of 14.2%, this percentage must be chosen and applied to the acquisition price excluding taxes.

Decisions of the Supreme Court (Judicial Review Division), 22 November 2019. “Dealer cartel” on the violation of the right to the inviolability of the domicile

In view of the imposition of a fine for infringement of Article 1 LDC consisting of participation in the cartel for the fixing of prices and commercial conditions and the exchange of information bet-ween dealers, the Court rejected the appeal against that administrative decision on the grounds that those acts were carried out with knowledge of the anti-competitive agreements.


It does not consider that there is a violation of the right to inviolability of the domicile and un-lawfulness of evidence obtained when the entry to the head office is authorised by a court and the content of the investigation order was in accordance with the provisions of various Supreme Court rulings. Repeated case law of the Supreme Court establishes that based on the circumstances of an entry and registration in accordance with the law and carried out in proportionate and adequate terms, data or documents that reveal or are indicative of illegal actions other than those that de-termined the investigation may be legitimately used by the Public Administration in a subsequent sanctioning action.

Decisions of the Supreme Court (Judicial Review Division), 29 November 2019, “YUNCAR MOTOR S.L“

The appeal in cassation lodged by the State Attorney against the judgment of the Audiencia Na-cional which had quashed in its entirety the decision that sanctioned YUNCAR MOTOR S. L. HYUN-DAI dealer is struck out, establishing that there is no “cassational” interest. The appellate court considered that no anti-competitive behaviour was proven.

Judgment of the Supreme Court (Civil Division) of 17 December 2019. Judgement no. 674/2019. Should damage caused by a parked vehicle be considered within the concept of vehicle traffic for the purposes of insured civil liability?

The Supreme Court ruling of 6 February 2012 regarding the need for the vehicle’s insurance com-pany to assume responsibility for damage to third parties caused when a SUBARU vehicle catches fire while parked is confirmed. In that regard, the Supreme Court asks the Court of Justice of the European Union for a preliminary ruling on whether Article 3 of Directive 2009/103/EC on civil lia-bility insurance must be interpreted in such a way that the facts at issue are covered by the defini-tion of “vehicle traffic”, expressly stating that “the concept of vehicle traffic is not limited to road traffic situations and includes any use of a vehicle in accordance with its normal function, it not being decisive whether or not the engine was running or the vehicle had been parked in the garage for more than 24 hours”. In the specific case, the fire originated in the vehicle’s electrical circuit, and it is not possible to identify which of the parts caused the damage or determine the functions that this part performs.

The driver’s insurer maintains that it should not be ordered to pay since there are other procee-dings after the preliminary ruling in which the manufacturer SUBARU is found liable and thus it is proven that there was no fault of the driver/owner of the insured vehicle and that the liability should be attached to the manufacturer. The Court found that this was not the subject matter of the appeal and therefore affirmed the judgment under appeal, with the vehicle owner’s insurer being required to pay.

14Automobile Newsletter No . 9 | 2020Automobile Newsletter No . 9 | 2020

Europe

Judgment of the Court of Justice of the European Union (Second Chamber), Gesamtverband Autoteile-Handel eV v KIA Motors Corporation, 19 September 2019. Access to the database on vehicle repair and maintenance by independent repairers in electronic format.

Interesting judgment in which a question was referred to the Court of Justice of the European Union in connection with the dispute between Gesamtverband, a German professional association for the wholesale trade in car parts, and KIA Motors Corporation, concerning the refusal of KIA Motors Corporation to provide independent agents with access to vehicle repair and maintenance infor-mation in a format which can be processed electronically. The Court considers that Article 6(1) of Regulation No 715/2007, which lays down the characteristics and manner in which vehicle repair and maintenance information is to be made available, does not require access to be granted to such information in a format which can be processed electronically, access to the information by means of a simple reading of the information being sufficient, since the obligation imposed by the provision is limited to the creation of a database. Furthermore, the Court considers that it does not constitute discrimination against independent operators, prohibited by Article 6(1) of that Re-gulation, if, by having recourse to an information service provider, the manufacturer establishes another channel of information for the marketing of original spare parts by authorised dealers and repairers.

Legislation

Spain

Guide to the use of cookies. Spanish Data Protection Agency, November 2019

The Guide categorizes cookies according to the entity that manages them (own and third party cookies), their purpose (technical, preference or customization, analysis or measurement, beha-vioural advertising cookies) and by the time period activated (session and persistent cookies); it also establishes a definition of what is meant by data, terminal and information society service.

Both the Guide and the referenced article refer to the use of cookies and similar technologies such as “local shared objects or flash cookies, web beacons or bugs” that are used to store and retrieve data from a terminal of a natural or legal person using an information society service, as well as to fingerprinting techniques. Cookies that only allow communication between the user’s computer and the network, those that provide a service expressly requested by the user and those indicated


by the WG29 in its Opinion 4/2012 are excluded from compliance with the obligations of this sec-tion, although it is recommended that they be informed in the cookie policy or in the privacy policy.

In the case of multipurpose cookies with two or more purposes not excluded from the scope of appli-cation, it must be ensured that they are used by accepting all purposes.

In order to know the function and if they are included in the scope of application of Article 22(2) of the Information Society and Electronic Commerce Services Act 34/2002 of 11 July (LSSI), it is recom-mended to carry out a periodic review.

In order to comply with the obligation of transparency arising from the regulations, it is establis-hed that users must be provided with clear and complete information on the use of data storage and retrieval devices and on the purposes of data processing. To this end, the cookie policy must include, among others: the definition and generic function of cookies; information on the type of cookies used and their purpose; information on how to accept, deny, revoke consent or delete coo-kies; information on data transfers to third countries carried out by the publisher; information on the logic used, importance and consequences of data processing in the terms of Article 13(2)(f )) of the General Data Protection Regulation when automated decisions with legal effects for the user are taken in the creation of profiles; and the period of data conservation.

It also details how the information should be displayed, and should be easily accessible, by layers or other ways of displaying the information, such as by sufficiently visible warning, etc.

As for the consent, it is established that it must be given freely and informed, and therefore it must be taken into account that the user must have been previously informed clearly, must have carried out some kind of action, must be able to refuse to accept the cookies, that the information about the cookies is presented separately from other matters, etc.

The methods for obtaining consent and the requirements for them to be valid are also dealt with, expressly dealing with the cases in which the method for obtaining consent is: when requesting registration for a service; during the process of configuring the operation of the web page or appli-cation; by means of consent management platforms provided that they comply with the require-ments of section v a) of the Annex; before downloading a service or application offered on the web page; by means of the layered information format; by means of browser configuration.

In particular, it establishes the need to adopt precautions in the case of consent by minors under 14 years of age, such as verifying that consent to the processing of personal data was given by the hol-der of parental authority/guardianship, or warning the minor that his or her parents or guardians should set, accept or reject cookies before continuing to surf.

Finally, the LSSI does not establish the person responsible for providing the information on cookies and obtaining consent for their use, to which the Guide responds by establishing that the controller will be liable for the specific processing it carries out.


Instruction from the Directorate-General for Traffic 2019/S-149 TV-108, on personal mobility vehicles, of 3 December 2019. PMV concept, insurance, complaints

Pending the publication of the legal regulations under discussion in the European Union, on 4th December 2019 the Directorate-General for Traffic published Instruction 2019/S-149 TV-108, with the aim of achieving greater protection for both drivers and pedestrians. In it, while the General Regulations on Vehicles are being amended to include personal mobility vehicles (PMVs) in Annex II, the Directorate-General for Traffic is anticipating for the first time a specific definition of PMVs characterised by “vehicles with one or more wheels, equipped with a single seat and powered ex-clusively by electric motors that can provide the vehicle with a maximum design speed of between 6 and 25 km/h”.

The person driving the PMV is qualified as a driver, with all the rights and responsibilities that this entails, such as the possibility of administrative road traffic infringements.

PMVs do not require a driver’s license or compulsory insurance. However, the Town Councils, within the framework of their regulatory powers, may require PMVs to comply with certain requirements or require that they be insured for use on urban roads.

Rules have been laid down for complaints that are to be followed by the agent of the authority in this regard, establishing the data to be recorded in the complaint, point deductions and speed.

Punishable conduct on board PMVs is established so that the appropriate sanctions can be impo-sed by the police with traffic powers. Thus, the following conduct will be punishable: driving under the influence of alcohol and drugs, use of a mobile phone and headphones, non-use of a helmet and reflective clothing or lighting in certain circumstances; places not suitable for driving, stop-ping or parking; driving in excess of maximum number of one user. It also establishes the liability rules in case of infringements by minors.

It would have been desirable for the Directorate-General for Traffic to have adopted a uniform po-sition on whether or not to have road insurance or the use of protective elements such as helmets, which is left to the discretion of the local administration, which will presumably lead to very dispa-rate regulations.


Climate Change Act Amendment (Catalonia) Act 9/2019 of 23 December with re-gard to the tax on carbon dioxide emissions from mechanically propelled vehicles. Official Journal of Spain of 14 January 2020

The Regional Parliament of Catalonia, as indicated in the preamble to the Act, “under the pro-tection of the powers of the Generalitat in matters of environment and creation of own taxes” has approved Act 9/2019 of 23 December, amending the Climate Change Act 16/2017, to regulate a tax on carbon dioxide emissions from mechanically propelled vehicles. The taxable event is these emissions from vehicles in categories M1 (motor vehicles constructed principally for the carriage of passengers and their luggage, with not more than eight seats in addition to the driver’s seat, and no spaces for standing passengers) and N1 (motor vehicles constructed principally for the carriage of goods and having a maximum mass not exceeding 3.5 tonnes), L3e (two-wheel motorcycles), L4e (two-wheel motorcycles with sidecar), L5e (motor tricycles), L7e (heavy quadricycles).

In accordance with this law, the taxpayers are those individuals who own the vehicles in the above-mentioned categories and who are domiciled for tax purposes in Catalonia, as well as those legal entities that own the vehicle and are domiciled for tax purposes in Catalonia or not, but have an establishment, branch or office for the vehicles domiciled in Catalonia in accordance with the data in the Vehicles Register. Likewise, for these last two cases, it is established that entities that do not have legal personality, but constitute an economic or financial unit and are considered to be taxa-ble under general tax regulations, will also be taxable.

A list is also established of exemptions, including official state vehicles and vehicles with diploma-tic or international organisation plates.

A tax base is established which matches the official carbon dioxide emissions shown on the certi-ficate issued by the vehicle manufacturer or importer, and for those M1 and N1 vehicles where this is not possible, the formula in Article 43 bis is applied, with a minimum limit of 35 g CO2/km and a maximum limit of 499 g CO2/km.

It also establishes the tax liability and allowances of 100% for vehicles with a historic vehicle regis-tration and 2% for direct debit payment of the receipts of Article 47.

The tax period will match the calendar year and will be shorter in certain cases, such as when the vehicle is first purchased after 1 January.

This new tax will be levied on M1 and N1 vehicles from 31 December 2019 and on L3e, L4e, L5e, L6e and L7e vehicles from 31 December 2020.

Act 9/2019 is currently in force as of 31 December 2019.


Europe

Opinion of the European Economic and Social Committee on ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the European Investment Bank on the Implementation of the Strategic Action Plan on Batteries: Building a Strategic Battery Value Chain in Europe, C 353, 18 October 2019

The opinion concludes that the first progress report published by the European Commission in May 2018 and subsequent reports in 2019 on the implementation of the Strategic Action Plan on Batte-ries shows that ‘many measures’ have been put in place to date to ensure that the European Union has a major battery industry and to break Europe’s dependence on third countries, in particular Asian countries, which is the objective.

Due to the rapid development of these vehicles, it is increasingly important to have quality, safe and environmentally friendly batteries. Given these facts, Europe has a great opportunity to catch up with the Asian countries that currently supply 85% of Europe’s batteries, with European produc-tion covering only 3% of world production. The progress report welcomes the existence of secto-ral and regional initiatives, including the European Battery Alliance, a platform where the busi-ness community, policy makers and scientists come together with the aim of placing the European Union and its industries at the forefront of battery design technology.

However, the question arises as to whether the European Economic and Social Committee (EESC) is doing too little too late. As little time has passed since the creation of the Battery Action Plan, this Committee considers that it is still early to reach any final conclusions.

It does show that Europe must address the problem of the raw materials needed for battery pro-duction, and that these raw materials are not available in sufficient quantities in the European Union. In this respect, it is realised that it is not realistic to assume that the European Union can become completely self-sufficient in this area, although initiatives have been developed to extract, for example, lithium in some European Union Member States by opening up closed mines. In view of the above, the EESC stresses the need to develop new types of batteries, such as solid-state bat-teries, and to raise awareness among European consumers so that they choose to buy batteries ma-nufactured in Europe where human and environmental safety regulations are taken into account.

The EESC expressly points out that more concrete initiatives are needed to develop the process of recycling materials from old batteries. 57% of batteries are not recycled, so it is considered appro-priate to adapt the 2006 Directive, taking into account the arrival of new batteries and the road-map of the Action Plan, as well as to renew the current battery processing centres in order to be able to process the huge amount of new types of batteries in the future and develop new recycling or processing technology, R&D supported in this sense by the European Union.

The Committee would welcome specific research into obtaining materials from waste coal, steel or other extracted metals. It welcomes the report on the recovery of critical raw materials from mining


and landfill waste published by the European Commission’s Joint Research Centre, and calls for the study of critical raw materials to be given political support.

The Committee considers it important that EU funding is also made available for projects which have been developed by European medium-sized battery production companies and have already undergone significant technological development (Technology Readiness Level 5 to 9), as well also access to subsidies for retraining and training employees thereof.

Commission Delegated Regulation (EU) 2019/1745 of 13 August 2019 supplementing and amending Directive 2014/94/EU of the European Parliament and of the Coun-cil as regards recharging points for L-category motor vehicles, shore-side electricity supply for inland waterway vessels, hydrogen supply for road transport and natural gas supply for road and waterborne transport and repealing Commission Delegated Regulation (EU) 2018/674 (OJ L 268, 22 October 2019)

In order to ensure the interoperability of recharging and refuelling points at the European level, the Regulation lays down technical specifications for recharging points for L-category motor vehicles (two, three or four wheel vehicles, such as two-wheelers), motor tricycles and motor quadricycles)4, distinguishing between those up to 3.7 kVA and above, establishing that socket-outlets or vehicle connectors below 3.7 kVA shall be Type 3A, as described in standard EN 62196-2 (for Mode 3 char-ging) and compliant with standard IEC 60884-1 (for Mode 1 or 2 charging). For those above 3.7 kVA they shall be Type 2 socket-outlets or vehicle connectors as described in standard EN 62196-2.

The fuelling pressure at compressed natural gas and liquefied natural gas refuelling points for mo-tor vehicles and the fuelling pressure of liquefied natural gas refuelling points for motor vehicles are indicated.

Annex II to Directive 2014/94/EU is amended as set out in this Regulation, whereby outdoor hydro-gen refuelling points dispensing gaseous hydrogen used as fuel on board motor vehicles, as the fuelling algorithm, shall comply with the requirements of standard EN 17127.

The quality characteristics of hydrogen dispensed by hydrogen refuelling points for motor vehicles shall comply with the requirements described in standard EN 17124, and connectors for motor vehi-cles for the refuelling of gaseous hydrogen shall comply with standard EN ISO 17268 after comple-tion of the certification processes for connectors in the same standard. The EN ISO 14469 standard shall apply to the connector profile.

The Regulations shall apply from 12 November 2021.

4 To define L-category vehicles the Regulation refers to Directive 2014/94/EU of the European Parliament and of the Council of 22 October 2014 on the deployment of alternative fuels infrastructure, which in turn refers to Regulation (EU) No 168/2013 of the European Parliament and of the Council of 15 January 2013 on the approval and market surveillance of two- or three-wheel vehicles and quadricycles.


Proposal for a Regulation of the European Parliament and of the Council on the labelling of tyres with respect to fuel efficiency and other parameters, amending Regulation (EU) 2017/1369 and repealing Regulation (EC) No 1222/2009 Brussels, 6 December 2019

It is appropriate to replace Regulation (EC) No 1222/2009 by a new Regulation which incorporates the amendments made in 2011 and modifies and enhances some of the provisions of Regulation (EC) No 1222/2009 to clarify and update the content of those provisions, taking into account the technological progress for tyres over recent years. Tyres, mainly because of their rolling resistance, account for 20-30% of vehicle fuel consumption, so reducing the rolling resistance of tyres will con-tribute to reducing emissions.

With the aim of increasing the use of safe, long-lasting and fuel-efficient tyres, the Regulation es-tablishes a framework for the provision of harmonised information on tyre parameters through labelling for C1, C2 and C3 tyres to allow end users to make an informed choice when purchasing tyres. Certain exemptions are provided for, such as off-road professional tyres, temporary-use spare tyres, etc. It also establishes the responsibility of tyre suppliers, who must ensure that the label is displayed in close proximity to the price and that the product information sheet can be accessed, and in the case of Internet sales, by nested display.

Tyre distributors shall ensure that the provisions of this Regulation are complied with. When selling through a website, the internet hosting service provider must ensure that the label and information sheet are displayed.

The information to be provided in respect of tyres and parameters shall be obtained in accordance with the testing methods referred to in Annex I and the laboratory alignment procedure referred to in Annex VI. Member States shall assess the conformity of the declared classes for each of the para-meters set out in Annex I in accordance with the verification procedure set out in Annex VII. Mem-ber States may not provide incentives for tyres below class B with respect to either fuel efficiency or wet grip performance within the meaning of Annex I, Parts A and B respectively. The Regulation does not consider tax and fiscal measures as incentives.

It is proposed that the entry into force of the proposed Regulation should be from 1 May 2021.

UN Regulation No 14 — Uniform provisions concerning the approval of vehicles with regard to safety-belt anchorages [2019/2141]. OJ L 324, 13 December 2019

This regulation unifies the provisions of several previous amendments. It applies to vehicles of ca-tegories M and N (motor vehicles with at least four wheels used for the carriage of passengers and motor vehicles with at least four wheels used for the carriage of goods respectively)5 with regard

5 The Regulation refers for the definition of vehicles of categories M and N to the Consolidated Resolution on the Construction of Vehicles (R.E.3), document ECE/TRANS/WP.29/78/Rev.6, point 2.


to their anchorages for safety-belts intended for adult occupants of forward-facing or rearward-facing or side-facing seats.

It describes the approval requirements and certain specifications according to the vehicle category type, the general tests for anchorages, and the inspection to be carried out during and after the tests.

The necessary requirements in the conformity of production procedure and the penalties to be im-posed in the event of non-compliance are indicated.

The Regulation contains transitional provisions regarding the granting of approvals.

Regulation (EU) 2019/2144 of the European Parliament and of the Council of 27 November 2019 on type-approval requirements for motor vehicles and their trailers, and systems, components and separate technical units intended for such vehicles, as regards their general safety and the protection of vehicle occupants and vulnerable road users, amending Regulation (EU) 2018/858 of the European Parliament and of the Council and repealing Regulations (EC) No 78/2009, (EC) No 79/2009 and (EC) No 661/2009 of the European Parliament and of the Council and Commission Regu-lations (EC) No 631/2009, (EU) No 406/2010, (EU) No 672/2010, (EU) No 1003/2010, (EU) No 1005/2010, (EU) No 1008/2010, (EU) No 1009/2010, (EU) No 19/2011, (EU) No 109/2011, (EU) No 458/2011, (EU) No 65/2012, (EU) No 130/2012, (EU) No 347/2012, (EU) No 351/2012, (EU) No 1230/2012 and (EU) 2015/166. OJ L 325, 16 December 2019

The regulation whose preliminary draft was mentioned in previous newsletters (5th and 6th) has been approved. This Regulation includes specific provisions to bring the general safety framework for vehicles and infrastructure into line with developments in connected and automated driving.

It lays down new requirements for the type-approval of vehicles (including automated vehicles), and of systems, components and separate technical units with regard to their general characte-ristics and safety and to tyre pressure monitoring systems, as well as for newly manufactured tyres.

It applies to vehicles of categories M (motor vehicles with at least four wheels intended for the carriage of passengers), N (motor vehicles intended for the carriage of goods) and O (trailers or semi-trailers), and to systems, components and separate technical units designed and constructed for vehicles.

The Regulation provides that vehicles must be fitted with tyre pressure monitoring systems that warn the driver and prevent resetting or recalibration. In addition, vehicles of all categories must be equipped with, inter alia, intelligent speed assistance, alcohol interlock installation facilitation and drowsiness warning.


Vehicles of categories M1 and N1 shall be equipped with advanced emergency braking systems, lane-keeping systems, event (accident) data recorders, head impact protection zone and frontal protection systems.

For buses and trucks (categories M2, M3, N2 and N3), in addition to the other requirements of this Regulation and of the delegated acts, these vehicles must incorporate lane departure warning sys-tems, advanced emergency braking systems and a system for detecting vulnerable road users at short distances and issuing warnings or avoiding collisions with these vulnerable users.

Hydrogen-powered vehicles shall, in addition to the other requirements applicable to categories M and N, comply with the technical specifications laid down in the implementing acts adopted by the Commission on the type-approval of hydrogen-powered vehicles and hydrogen components, including their installation.

Connected and automated vehicles shall comply with the specific requirements to be laid down in the delegated acts, concerning (a) systems to replace driver control of the vehicle; (b) systems to provide real-time vehicle information on the status of the vehicle and the surrounding area; (c) systems to monitor driver availability; (d) event (accident) recorders; and (e) a harmonised format for the exchange of data.

Delegated acts adopted under the provisions of this Regulation shall enter into force within 2 months of notification to the European Parliament and the Council, provided that the latter do not object.

It shall apply from 6 July 2022.

News

Valencia will have “carsharing” after a year and a half of delay in the City Council

From 2020 the pilot project will be launched through the company Cargreen with a one-year authorisation that can be extended to six months. This company’s electric vehicles will be available throughout the city of Valencia and its surrounding areas, and users will be able to park in any free parking area in the city, as well as in the blue and orange zones, without paying any additional fee for the service.

These vehicles have a geolocation system to control and manage the fleet, by means of which Car-green will inform the City Council weekly about the number and time of usage, routes and parking places of each vehicle in the fleet.

Of legal interest are the issues in the implementation of this agreement relating to the geolocation data of the vehicles and compliance with data protection, with the necessary consent of the users for the report to the City Councils.

For further information please visit our website at www.ga-p.com or send us an e-mail to: [email protected].


For any questions please contact:

Ainara Rentería Tazo

Counsel and Head of Automotive at Gómez-Acebo & Pombo, MadridTel.: (+34) 91 582 91 [email protected]

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