Porsche's Obligation to Deliver

The Federal Court of Justice (Bundesgerichtshof – “BGH”) has announced a groundbreaking ruling − not only for Porsche.

In its judgment of 6 October 2015 (KZR 87/13), the BGH has ruled that the sports car manufacturer Porsche is obligated to deliver new vehicles to tuning companies − in order to present their own conversion programs or to be used in business operations. Additionally, Porsche also has to deliver or provide for delivery of original Porsche parts. Refusing to do so is discriminating and constitutes an unreasonable impediment on tuning companies, the BGH ruled.

In its decision, the court highlighted the tuning companies' dependency on the manufacturer, created by Porsche with an autonomous supplier pool. Porsche's argument that a company shall not have to support competition if this would harm its own business does not apply if the competitor is thus prevented from properly presenting its own value-adding services on the market.

Balancing the interests, the BGH acknowledges an essential interest for the tuning companies to receive deliveries compared to a minimal interest for Porsche to refuse those deliveries. Even regarding original Porsche replacement parts, a delivery shall not be limited to only such parts which cannot be purchased in any other way. Due to Porsche's market leading position in the field of diagnostics and information systems, the tuning companies shall be granted access as otherwise there would be an unreasonable impediment on those companies.

The BGH also ruled that Porsche is obligated to pay damages due to its refusal to deliver up to this date. In addition, Porsche has to bear the warning costs incurred by the lawyers.

The principles set by the BGH not only apply to the brand Porsche but also throughout the industry for all exclusive products processed by other companies.