What changed

on the proposal for a directive of the European Parliament and of the Council on the legal protection of designs (recast)

12.9.2023

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

Mr Adrián Vázquez Lázara

on the proposal for a directive of the European Parliament and of the Council on the legal protection of designs (recast)

Chair

(COM(2022)0667 – C9395/2022 – 2022/0392(COD))

Committee on Legal Affairs

(Ordinary legislative procedure – recast)

BRUSSELS

The European Parliament,

Subject: Opinion on a proposal for a directive of the European Parliament and of the Council on the legal protection of designs (recast) (COM(2022)667 – C90395/2022 – 2022/0392(COD))

– having regard to the Commission proposal to Parliament and the Council (COM(2022)0667),

Dear Mr Chair,

– having regard to Article 294(2) and Article 114(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9395/2022),

The Committee on Legal Affairs has examined the proposal referred to above pursuant to Rule 110 of Parliament's Rules of Procedure, on recasting.

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

Paragraph 3 of that Rule reads as follows:

– having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts,

“If the committee responsible for legal affairs considers that the proposal does not entail any substantive changes other than those identified as such in the proposal, it shall inform the committee responsible for the subject matter thereof.

– having regard to Rules 110 and 59 of its Rules of Procedure,

In such a case, over and above the conditions laid down in Rules 180 and 181, amendments shall be admissible within the committee responsible for the subject-matter only if they concern those parts of the proposal which contain changes.

– having regard to the report of the Committee on Legal Affairs (A90000/2023),

However, amendments to parts of the proposal which remain unchanged may, by way of exception and on a case-by-case basis, be accepted by the Chair of the committee responsible for the subject matter if he or she considers that this is necessary for pressing reasons relating to the internal logic of the text or because the amendments are inextricably linked to other admissible amendments. Such reasons must be stated in a written justification to the amendments.”

1. Adopts its position at first reading hereinafter set out, taking into account the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;

Following the here attached opinion of the Consultative Working Party of the Legal Services of Parliament, the Council and the Commission, which has examined the recast proposal, and in keeping with the recommendations of the Rapporteur, the Committee on Legal Affairs considers that the proposal in question does not include any substantive changes other than those identified as such and that, as regards the codification of the unchanged provisions of the earlier act with those substantive amendments, the proposal contains a straightforward codification of the existing text, without any change in its substance.

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

In conclusion, at its meeting of 7 September 2023, the Committee on Legal Affairs unanimously decided to recommend that the Committee on Legal Affairs, as the committee responsible, proceed to examine the above proposal in accordance with Rule 110.

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Yours sincerely,

Amendment 1

Adrián Vázquez Lázara

Proposal for a directive

Annex

Recital 7

Brussels, 23 June 2023

Or. fr

OPINION

Justification

FOR THE ATTENTION OF THE EUROPEAN PARLIAMENT

These are the terms used in paragraph 32 of the European Parliament resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience.

THE COUNCIL

Amendment 2

THE COMMISSION

Proposal for a directive

Proposal for a Directive of the European Parliament and of the Council on the legal protection of designs (recast)

Recital 13

COM(2022)667 final of 28.11.2022 – 2022/0392(COD)

Or. fr

Having regard to the Inter-institutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts, and in particular to point 9 thereof, the Consultative Working Party consisting of the respective legal services of the European Parliament, the Council and the Commission met on 12 May 2023 for the purpose of examining the aforementioned proposal submitted by the Commission.

Justification

At that meeting, an examination of the proposal for a Directive of the European Parliament and of the Council recasting Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs resulted in the Consultative Working Party’s establishing, by common accord, that the following should have been marked with the grey-shaded type generally used for identifying substantive amendments:

It being a directive and not a regulation, the term ‘identical’ seems too strong; the term ‘uniform’, already used in paragraph 35 of the report (2021/2007), seems preferable.

- the entire text of recital 6 of Directive 98/71/EC;

Amendment 3

- in Article 23, the deletion of the words ‘of that State’.

Proposal for a directive

In consequence, examination of the proposal has enabled the Consultative Working Party to conclude, without dissent, that the proposal does not comprise any substantive amendments other than those identified as such. The Working Party also concluded, as regards the codification of the unchanged provisions of the earlier act with those substantive amendments, that the proposal contains a straightforward codification of the existing legal text, without any change in its substance.

Recital 18

F. DREXLER E. FINNEGAN D. CALLEJA CRESPO

Or. fr

Jurisconsult Jurisconsult Director-General

Justification

Linguistic clarification.

Amendment 4

Proposal for a directive

Recital 27

Or. fr

Justification

This reference to legal certainty underlines the importance of exhaustively listing the substantive reasons for such non-registrability and invalidation.

Amendment 5

Proposal for a directive

Recital 29

Or. fr

Justification

It is worth noting that this concern to combat counterfeiting more effectively has been expressed by the European Parliament previously.

Amendment 6

Proposal for a directive

Recital 32

Or. fr

Justification

For reasons of legal certainty, limitations to the exclusive rights conferred by the registration of a design should be listed exhaustively.

Amendment 7

Proposal for a directive

Recital 34

Or. fr

Justification

It is worth noting that this risk of distortion of competition has been highlighted by the European Parliament previously.

Amendment 8

Proposal for a directive

Recital 35

Or. fr

Justification

The concept of ‘identity of the manufacturer’ is clearer than the concept of ‘origin’ of the product.

Amendment 9

Proposal for a directive

Recital 37

Or. fr

Justification

It being a directive and not a regulation, the term ‘similar’ seems too strong; the term ‘equivalent’, already used in recital 16 of this text, seems preferable.

Amendment 10

Proposal for a directive

Recital 42

Or. fr

Justification

It being a directive and not a regulation, the phrase ‘is aligned to’ seems too strong; the phrase ‘inspired by’ seems preferable.

Amendment 11

Proposal for a directive

Article 6 – paragraph 1

Or. fr

Justification

Linguistic clarification.

Amendment 12

Proposal for a directive

Article 15 – indent 1 a (new)

Or. fr

Justification

Paragraph 1a includes the requirements formulated by the European Parliament in its resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience.

Amendment 13

Proposal for a directive

Article 19 – paragraph 1

Or. fr

Justification

The wording ‘upon whose appearance the design of the component part is dependent’ is unclear and creates uncertainty as to the scope of the repair clause.

Amendment 14

Proposal for a directive

Article 19 – paragraph 2

Or. fr

Justification

As described, the concept of ‘identity of the manufacturer’ is clearer than the concept of ‘origin’ of the product.

Amendment 15

Proposal for a directive

Article 19 – paragraph 3

Or. fr

Justification

The 10-year period appears disproportionate to the stated objective of legal certainty for designs for which registration was sought before the entry into force of this Directive;

EXPLANATORY STATEMENT

The Rapporteur takes a generally favourable view of the Commission’s proposal, which repeals and replaces the existing Directive 98/71/EC. It has the merit of adapting design protection to the evolution of digital technologies, in particular the appearance of 3D printers. It also seeks to further align national laws in order to enhance their interoperability and complementarity with the Community design system. Finally, it aims to complete the single market in repair spare parts by introducing a repair clause into the Directive as already contained in the Regulation.

The proposed changes are guided by two general objectives: enhancing legal certainty and reiterating positions previously expressed by the European Parliament. The most important concern the replacement of the concept of ‘origin’ of the product, which is too vague, with the concept of ‘identity of the manufacturer’ of the product (Nos 8 and 14), and the replacement of the ten-year period for the application of the repair clause to designs for which registration was sought before the entry into force of the new Directive, which was considered excessively long, with a period of three years (No 15).