EU, partially harmonised laws on design protection

From its headquarters in Brussels, the European federation of the automotive aftermarket distributors, Figiefa, monitors and accompanies the development of European and International legislation affecting the automotive aftermarket. Figiefa represents the interests of its members towards European and international institutions.

In a series of articles in this newsletter, Figiefa and ADI, who is assisting Figiefa in various dedicated working groups, intend to give you an executive overview of key topics that are bound to affect tomorrow’s IAM playing field.

The European Union has partially harmonised national laws on design protection under the Design Directive (98/71), which ensures equivalent protection to right holders in all EU Member States. However, this Directive does not address the case of mustmatch visible spare parts (e.g., car body panels, windscreens), which must exactly match the design of the original component. This results in a patchwork of national legislation differing on this particular point, and also in significant limitations for European consumers when it comes to having a visible part of their cars replaced, frequently forced to purchase original parts.

The European Commission already issued a first legislative proposal to address this problem thirty years ago (1993), followed by two more in 1997 and 2004. Each of these times, FIGIEFA alongside other ECAR supporters, has defended the liberalisation of the visible spare parts market.

In May 2014, however, despite the fact that the Commission and the European Parliament majority had fully supported the Repair Clause, the European Commission withdrew its proposal to introduce a Europe-wide Repair Clause in the Design Directive due to the 10 years of discussion, delay, postponement and blockage, from some Member States in the Council of Ministers.

The consequence of this withdrawal today is a still non-harmonised market for automotive visible spare parts, a patchwork of conflicting national laws. Member States which do not have a repair clause in their design law will continue to allow protection and enforcement of the vehicle manufacturers’ design rights on visible must match parts against producers or related spare parts. On the other hand, in Member States with a repair clause in their design law, the consumers can choose between competing suppliers of parts and repair services – the vehicle manufacturer network and the independent aftermarket, at prices kept low by competition.

Now, twenty years later, we finally have a EU legislation on the horizon. On the 28th of November 2022, the European Commission published proposals for the revision of the EU Design Directive (COM (2022) 667) and the EU Design Regulation (COM (2022) 666). FIGIEFA appreciates the proposals, especially 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).

Both legislative proposals ensure on one side full protection to manufacturers’ design rights over their products (such as a vehicle), and avoid on the other side monopolies in after-sales markets on visible spare parts (such as vehicle body panels, headlights, and windscreens) by excluding those for the purpose of repair and replacement from such protection.

FIGIEFA strongly supports the intention of the European Commission to deploy this approach throughout the entire European Union. Harmonised rules for design protection and exemptions are a major step forward to simplify the EU regulatory framework, and a well-rounded Repair Clause would ensure competition and consumer’s choice for visible spare parts, submit their prices to competition, promote innovation and make the right to repair becoming a reality for all European consumers.

However, FIGIEFA believes that the benefits of the proposed Repair Clause could materialise more efficiently with some targeted improvements, such as a reduction of the proposed 10-year transition period for the protection of the existing designs and a clearer consumers information requirement. This is why, FIGIEFA will continue working vis a vis the European Parliament, the Commission, and especially the Council of the EU, to make sure that all or a majority of Member States back these proposals and that European citizens won’t have to wait 10 more years for a real ‘right to repair’.

Find out more about the Repairs Clause under the Design Protection Directive here:

• Explanatory video: https://www.youtube.com/ watch?v=iIhTfnewWsc&t=6s

• AutoMotives Podcast episode: https://soundcloud.com/figiefa/automotives-episode-3-design-protection-the-repairs-clause-a-chat-withlouis-shakinovsky

• ECAR website: https://www.ecar-alliance.eu/