The new EU design legislation should enable the right to repair, rather than imposing unjustified restrictions and delays
On 28 November 2022, the European Commission proposed a revision of the EU Design Directive (COM(2022) 667) and the EU Design Regulation (COM(2022) 666). One of the main points is the introduction of an EU-wide Repair Clause in the Design Directive (Art. 19) and the confirmation of a permanent Repair Clause in the Design Regulation (Art. 20a).
The Repair Clause is an indispensable precondition to achieve an accessible and affordable right to repair at the service of the circular economy. Consumers should always be able to choose between competing suppliers of spare parts to repair their products. Competition in the repair market drives down the price of spare parts and increases consumers’ purchasing power; it also improves innovation, employment and growth in the circular economy, hence making the right to repair a reality.
Only a full Repair Clause covering both new and existing designs will truly bring fair competition and freedom of choice for consumers. On the contrary, a partial Repair Clause limited to new designs only will still constrain consumers to purchase original spare parts for their current products at a higher price and without any competing alternative.
It is very regrettable that the European Commission’s proposal imposes a ten-year transition period onto the Member States which do not have a national Repair Clause in place yet. This will prevent the EU-wide Repair Clause in the Design Directive to have any effect on all currently existing products for ten more years, denying consumers to benefit from their right to affordable and accessible repairs. The Commission itself recognized that there was “no broad economic justification” to maintain design protection on visible spare parts in its evaluation report in 2020. A shorter and more flexible transition period of up to three years would provide sufficient time for Member States to transpose the Directive into national law, while still being able to apply the Repair Clause on existing designs at an earlier date, to the benefit of consumers and repairers. This should be amended in Art. 19(3) of the proposed Directive.
It is also important to ensure clarity and legal certainty in the wording of the Repair Clause, so that it applies uniformly and unequivocally in the Single Market. In this regard, the restriction of the Repair Clause to “form-dependent component parts” is unclear and unjustified. All what matters is that spare parts are used for the purpose of restoring the product back to its original appearance. It has always been enshrined as such in previous EU legislation and case law; there is no justification for additional elements that would trigger uncertain legal risks, thus hindering the development of the circular economy. The “form-dependent” condition should be removed from Art. 19(1) of the proposed Directive and Art. 20a(1) of the proposed Regulation.
The information requirements on “product origin” are unclear and redundant. The existing EU consumer protection legislation already ensures clear and meaningful information requirements on trade practices, advertisement, and product safety. It is not in the remit of intellectual property law to (poorly) duplicate such requirements. The proposed wording on the “origin” of spare parts is too simplistic and ambiguous, and it does not address the case of spare parts containing components of multiple origins. In line with the Better Regulation principles, those requirements should be removed from the proposed Directive (Art. 19(2)) and Regulation (Art. 20a(2)).