Clarifications following the JURI meeting on 3 July 2023 at the European Parliament
On 3 July 2023, the JURI committee of the European Parliament discussed the pending revision of the Design Directive (COM(2022) 667, 2022/0392 COD) and the Design Regulation (COM(2022) 666, 2022/0391 COD). The Rapporteur (MEP Gilles Lebreton) presented his draft report on the Directive and his draft report on the Regulation.
A majority of political groups (including the Rapporteur) expressed their support for the repair clause, which is a crucial precondition to achieve a European repair economy and a real “right to repair” to consumers. The repair clause preserves manufacturers’ rights on the design of a product (such as a car), but not on the spare parts that are used for the purpose of repairs, in order to restore the product back to its original appearance (such as car bumpers or windscreens).
The Commission proposed to impose a long (10-year) transition period on existing designs, during which consumers will be constrained to purchase repair spare parts from the original manufacturers and without any other alternative. This is a serious obstacle to the development of a European repair economy, which will considerably limit the benefits of the repair clause for society with a significant loss of purchasing power for European consumers.
Some say that imposing 10-year transition period would be a fair and balanced compromise, as well as a requirement to comply with international obligations and fundamental rights to intellectual property. Those arguments are factually wrong and misleading for the following reasons:
- Intellectual property rights are an exemption to free trade intended to foster innovation. Yet, applying design protection on spare parts for which no design alternative is possible (such as automotive visible spare parts) is an abuse of the rule’s intent: instead of fostering competition, it leads to a product monopoly in the repair aftermarket.
- The Court of Justice of the EU has already highlighted several times that intellectual property rights were subject to limitations when their use hamper or eliminate competition in secondary markets.
- The TRIPS International Agreement on intellectual property recognizes the possibility to provide “limited exceptions to the protection of industrial designs (…), taking into account of the legitimate interests of third parties.”
- The repair clause fully recognizes and preserves the manufacturer’s right to design protection on their products, to the sole exception of visible spare parts that are changed for repair purposes. It is already a fair and balanced compromise itself, after decades of unfair monopoly practices from product manufacturers on visible spare parts, to their sole benefit and to the detriment of society at large (consumers, repairers, spare part producers and SMEs).
- The Commission’s former proposal to revise the Design Directive in 2004, withdrawn in 2014, did not include such a transition period.
Some say that the repair clause may increase illegal counterfeiting in the automotive spare part market, while putting at risk consumers’ safety with dangerous independent spare parts. Those arguments are factually wrong and misleading for the following reasons:
- Counterfeiting has no relation whatsoever with the repair clause. Counterfeiting is an infringement of intellectual property. The repair clause fully preserves manufacturers’ legitimate design rights on the appearance of their products, with an exception for visible repair spare parts that are solely used to restore the product back to its original appearance. IP infringements are always illegal and reprehensible, even in countries that already have a repair clause.
- Safety is not a design issue: all repair spare parts are subject to the same EU safety requirements in the automotive sector. Original equipment manufacturer (OEM) and independent spare parts are both covered by the EU Type Approval legislation, thus ensuring equal safety standards for consumers regardless of the producer of the spare part.
- To replace the excessively long 10-year transition period on existing designs in Art. 19(3) of the Directive, by a maximum 3-year duration enabling national implementation of the Directive;
- To clarify the information requirement on “product origin” in Art. 19(2) of the Directive and Art. 20a(2) of the Regulation, by stating that it refers to the producer of the spare part;
- To remove the newly introduced “form-dependence” requirement in Art. 19(1) of the Directive and Art. 20a(1) of the Regulation, and keeping the currently applicable legal wording in EU design legislation and case-law (“used for the sole purpose of the repair of the product so as to restore its original appearance”).
 Reduction of the annual saving gain for consumers down to 4 to 13 million EUR only (in a scenario where only new designs are covered by the repair clause during 10 years), instead of 340 to 544 million EUR (in a scenario where both new and existing designs are covered by the repair clause during 10 years), i.e. reduction by more than 50. Source: European Commission, Proposal for a Directive on the legal protection of design (recast), COM(2022) 667, summary of the impact assessment, p. 5.
 Case C-63/97 – 23.2.1999, BMW/Deenik,  ECR I-905; Case C 112/99 – 25.10.2001, Toshiba/Katun,  ECR I-7934; Case C-228/03 – 17.3.2005, Gillette/LA Laboratories,  ECR I-2337; Case C-59/05 – 23.2.2006, Siemens/VIPA,  ECR I-2147. See also Riehle, “Immaterialgüterschutz in Sekundärmärkten”, commemorative paper for Karl Peter Mailänder (2006), 175 et seq.
 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 26(2).
 Regulation (EU) 2018/858 of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC.