Sittings · Document
On the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002
Committee on Legal Affairs · Rapporteur: Gilles Lebreton
on the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
on the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002
(COM(2022)0666 – C90394/2022 – 2022/0391(COD))
(Ordinary legislative procedure: first reading)
The European Parliament,
– having regard to the Commission proposal to Parliament and the Council (COM(2022)0666),
– having regard to Article 294(2) and Article 118(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90394/2022),
– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,
– having regard to Rule 59 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A90000/2023),
1. Adopts its position at first reading hereinafter set out;
2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;
3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.
Amendment 1
Proposal for a regulation
Recital 3
| Text proposed by the Commission | Amendment |
| (3) In its conclusions of 11 November 2020 on intellectual property policy and the revision of the industrial design system in the Union, the Council called on the Commission to present proposals for the revision of Regulation (EC) No 6/2002 and Directive 98/71/EC. The purpose of that revision should be to modernise the protection systems relating to industrial designs in the Union and to make design protection more attractive for individual designers and businesses, especially small and medium-sized enterprises (SMEs). | (3) In its conclusions of 11 November 2020 on intellectual property policy and the revision of the industrial design system in the Union, the Council called on the Commission to present proposals for the revision of Regulation (EC) No 6/2002 and Directive 98/71/EC, an invitation which was echoed by the European Parliament in its resolution of 11 November 2021 on an action plan for intellectual property29a. The purpose of that revision should be to modernise the protection systems relating to industrial designs in the Union and to make design protection more attractive for individual designers and businesses, especially small and medium-sized enterprises (SMEs). |
| __________________ | __________________ |
| 29 Council conclusions on intellectual property policy and the revision of the industrial designs system in the Union 2020/C 379 I/01 (OJ C 379I, 10.11.2020, p. 1). | 29 Council conclusions on intellectual property policy and the revision of the industrial designs system in the Union 2020/C 379 I/01 (OJ C 379I, 10.11.2020, p. 1). |
| 29a European Parliament resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience (2021/2007(INI)) (OJ C 205, 20.5.2022, p. 26). |
Or. fr
Justification
It is worth recalling the role of the European Parliament.
Amendment 2
Proposal for a regulation
Recital 10
| Text proposed by the Commission | Amendment |
| (10) In order to ensure legal certainty, it is appropriate to clarify that protection is conferred upon the right holder for those design features of a product, in whole or in part, which are shown visibly in an application for a registered EU design and made available to the public by way of publication or consultation of the relevant file. While otherwise design features of a given product do not need to be visible at any particular time or in any particular situation of use in order to attract design protection, an exception should apply to the design protection of component parts of a complex product that need to remain visible during normal use of that product. | (10) In order to ensure legal certainty, it is appropriate to clarify that protection is conferred upon the right holder for those design features of a product, in whole or in part, which are shown visibly in an application for a registered EU design and made available to the public by way of publication or consultation of the relevant file. While design features need to be visible to benefit from design protection, it is not necessary for these characteristics to be visible at all times or in a particular situation in order to benefit from this protection. However, an exception should apply to the design protection of component parts of a complex product that need to remain visible during normal use of that product. |
Or. fr
Justification
Linguistic clarification (linked to Article 18a)
Amendment 3
Proposal for a regulation
Recital 16
| Text proposed by the Commission | Amendment |
| (16) Directive (EU) [xxx] harmonises the laws of the Member States with regard to the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the design is applied to or incorporated in a product which constitutes a component part of a complex product upon whose appearance the protected design is dependent. Accordingly, the current transitional repair clause contained in Regulation (EC) No 6/2002 should be converted into a permanent provision. As the intended effect of that provision is to make registered and unregistered Community design rights unenforceable where the design of the component part of a complex product is used for the purpose of the repair of a complex product so as to restore its original appearance, the repair clause should be placed among the available defences to EU design right infringement under Regulation (EC) No 6/2002. Furthermore, for the sake of coherence with the repair clause inserted into Directive (EU) [XXX], and in order to ensure that the scope of design protection is only restricted to prevent design right holders from actually being granted product monopolies, it is necessary to explicitly limit the application of the repair clause set out in Regulation (EC) No 6/2002 to component parts of a complex product upon whose appearance the protected design is dependent. In addition, in order to ensure that consumers are not mislead but are able to make an informed decision between competing products that can be used for the repair, it should also be made explicit in the law that the repair clause cannot be invoked by the manufacturer or the seller of a component part who have failed to duly inform consumers about the origin of the product to be used for the purpose of repair of the complex product. | (16) Directive (EU) [xxx] harmonises the laws of the Member States with regard to the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the design is applied to or incorporated in a product which constitutes a component part of a complex product upon whose appearance the protected design is dependent. Accordingly, the current transitional repair clause contained in Regulation (EC) No 6/2002 should be converted into a permanent provision. As the intended effect of that provision is to make registered and unregistered Community design rights unenforceable where the design of the component part of a complex product is used for the purpose of the repair of a complex product so as to restore its original appearance, the repair clause should be placed among the available defences to EU design right infringement under Regulation (EC) No 6/2002. Furthermore, for the sake of coherence with the repair clause inserted into Directive (EU) [XXX], and in order to ensure that the scope of design protection is only restricted to prevent design right holders from actually being granted product monopolies, it is necessary to explicitly limit the application of the repair clause set out in Regulation (EC) No 6/2002 to component parts of a complex product upon whose appearance the protected design is dependent. In addition, in order to ensure that consumers are not mislead but are able to make an informed decision between competing products that can be used for the repair, it should also be made explicit in the law that the repair clause cannot be invoked by the manufacturer or the seller of a component part who have failed to duly inform consumers about the identity of the manufacturer of the product to be used for the purpose of repair of the complex product. |
Or. fr
Justification
‘The identity of the manufacturer’ is a clearer concept than the concept of ‘origin’, which is too vague.
Amendment 4
Proposal for a regulation
Recital 28
| Text proposed by the Commission | Amendment |
| (28) In order to allow for an effective, efficient and complete review of decisions of the Office by the Boards of Appeal by means of a transparent, thorough, fair and equitable procedure, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the details of appeal proceedings where proceedings relating to EU designs require derogations from the provisions set out in delegated acts adopted pursuant to Article 73 of Regulation (EU) 2017/1001. | (28) In order to allow for an effective, efficient and complete review of decisions of the Office by the Boards of Appeal by means of a transparent, thorough, fair and equitable procedure, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying certain details of appeal proceedings where proceedings relating to EU designs require derogations from the provisions set out in delegated acts adopted pursuant to Article 73 of Regulation (EU) 2017/1001. |
Or. fr
Justification
Delegated acts in this area need to be better defined.
Amendment 5
Proposal for a regulation
Recital 29
| Text proposed by the Commission | Amendment |
| (29) In order to ensure a smooth, effective and efficient operation of the EU design system, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the requirements as to the details on oral proceedings and the detailed arrangements for taking of evidence, the detailed arrangements for notification, the means of communication and the forms to be used by the parties to proceedings, the rules governing the calculation and duration of time limits, the procedures for the revocation of a decision or for cancellation of an entry in the Register of EU designs, the detailed arrangements for the resumption of proceedings, and the details on representation before the Office. | (29) In order to ensure a smooth, effective and efficient operation of the EU design system, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the requirements as to the details on oral proceedings and the detailed arrangements for taking of evidence, the means of communication and the forms to be used by the parties to proceedings, the rules governing the calculation and duration of time limits, the procedures for the revocation of a decision or for cancellation of an entry in the Register of EU designs, the detailed arrangements for the resumption of proceedings, and the details on representation before the Office. |
Or. fr
Justification
The delegated act duplicates the powers conferred on the Executive Director in this area.
Amendment 6
Proposal for a regulation
Article 1 – paragraph 1 – point 10a (new)
Regulation (EC) No 6/2002
Article 11 – paragraph 2
| Present text | Amendment |
| 10a. Article 11(2) is replaced by the following: | |
| 2. For the purpose of paragraph 1, a design shall be deemed to have been made available to the public within the Community if it has been published, exhibited, used in trade or otherwise disclosed in such a way that, in the normal course of business, these events could reasonably have become known to the circles specialised in the sector concerned, operating within the Community. A design shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality. | ‘2. For the purpose of paragraph 1, a design shall be deemed to have been made available to the public within the Union if it has been published, exhibited, used in trade or otherwise disclosed in such a way that, in the normal course of business, these events could reasonably have become known to the circles specialised in the sector concerned, operating within the Union. A design shall not, however, be deemed to have been made available to the public if it has been disclosed to a third person only under explicit or implicit conditions of confidentiality. |
Or. fr
Justification
Linguistic clarification.
Amendment 7
Proposal for a regulation
Article 1 – paragraph 1 – point 16
Regulation (EC) No 6/2002
Article 20a(1)
| Text proposed by the Commission | Amendment |
| 1. Protection shall not be conferred on an EU design which constitutes a component part of a complex product, upon whose appearance the design of the component part is dependent, and which is used within the meaning of Article 19(1) for the sole purpose of the repair of that complex product so as to restore its original appearance. | 1. Protection shall not be conferred on an EU design which constitutes a component part of a complex product which is used within the meaning of Article 19(1) for the sole purpose of the repair of that complex product so as to restore its original appearance. |
Or. fr
Justification
Clarification of the concept of ‘complex product’.
Amendment 8
Proposal for a regulation
Article 1 – paragraph 1 – point 16
Regulation (EC) No 6/2002
Article 20a(2)
| Text proposed by the Commission | Amendment |
| 2. Paragraph 1 cannot be invoked by the manufacturer or the seller of a component part of a complex product who have failed to duly inform consumers, through a clear and visible indication on the product or in another appropriate form, about the origin of the product to be used for the purpose of the repair of the complex product, so that they can make an informed choice between competing products that can be used for the repair. | 2. Paragraph 1 cannot be invoked by the manufacturer or the seller of a component part of a complex product who have failed to duly inform consumers, through a clear and visible indication on the product or in another appropriate form, about the identity of the manufacturer of the product to be used for the sole purpose of the repair of the complex product, so that they can make an informed choice between competing products that can be used for the repair. |
Or. fr
Justification
Substitution of the concept of ‘identity of the manufacturer’ for the concept of ‘origin of the product’, which is too vague.
Amendment 9
Proposal for a regulation
Article 1 – paragraph 1 – point 31
Regulation (EC) No 6/2002
Article 42 – paragraph 2
| Text proposed by the Commission | Amendment |
| 2. The Executive Director may determine that the documentation to be provided by the applicant in support of the priority claim may consist of less than the documentation required under the implementing acts adopted pursuant to Article 42a, provided that the information required is available to the Office from other sources. | deleted |
Or. fr
Justification
Individual derogations from implementing acts are unjustifiable.
Amendment 10
Proposal for a regulation
Article 1 – paragraph 1 – point 59
Regulation (EC) No 6/2002
Article 55a – subparagraph 1
| Text proposed by the Commission | Amendment |
| The Commission is empowered to adopt delegated acts in accordance with Article 109a to supplement this Regulation by specifying the details of appeal proceedings under this Regulation. | The Commission is empowered to adopt delegated acts in accordance with Article 109a to supplement this Regulation by specifying the formal content of the notice of appeal and the proceedings for lodging and examining an appeal. |
Or. fr
Justification
This is a reference to the terms used in Article 73 of Regulation No 2017/2001.
Amendment 11
Proposal for a regulation
Article 1 – paragraph 1 – point 65 – point b
Regulation (EC) No 6/2002
Article 65 – paragraph 5
| Text proposed by the Commission | Amendment |
| (b) the following paragraph 5 is added: | deleted |
| ‘5. The Executive Director shall determine the amounts of expenses to be paid, including advances, as regards the costs of taking of evidence as referred to in this Article.’; |
Or. fr
Justification
It is not acceptable for the Executive Director alone to determine the amounts of expenses to be paid.
Amendment 12
Proposal for a regulation
Article 1 – paragraph 1 – point 68
Regulation (EC) No 6/2002
Article 66a
| Text proposed by the Commission | Amendment |
| (68) The following Article 66a is inserted: | deleted |
| ‘Article 66a | |
| The Commission is empowered to adopt delegated acts in accordance with Article 109a supplementing this Regulation by setting out the detailed arrangements for notification referred to in Article 66.’. |
Or. fr
Justification
Delegation seems unnecessary as Article 66 entrusts the Executive Director with the task of establishing the detailed arrangements for notification.
Amendment 13
Proposal for a regulation
Article 1 – paragraph 1 – point 84
Regulation (EC) No 6/2002
Article 72a – paragraph 3
| Text proposed by the Commission | Amendment |
| 3. The Executive Director shall determine the conditions of access to the database and the manner in which the contents, other than the personal data referred to in paragraph 2 of this Article but including the data listed in Article 72, may be made available in machine-readable form, including the charges for such access. | 3. The Executive Director shall determine the conditions of access to the database and the manner in which the contents, other than the personal data referred to in paragraph 2 of this Article but including the data listed in Article 72, may be made available in machine-readable form. |
Or. fr
Justification
Access to the electronic database must not be on a payment basis, by analogy with access to the register.
Amendment 14
Proposal for a regulation
Article 1 – paragraph 1 – point 93 – point a
Regulation (EC) No 6/2002
Article 78 – paragraph 4 – subparagraph 2
| Text proposed by the Commission | Amendment |
| Where the entitlement referred to in the first subparagraph, point (c), is not conditional upon the requirement of special professional qualifications, the person applying to be entered on the list who acts in design matters before the Benelux Office for Intellectual Property or a central industrial property office shall have habitually so acted for at least five years. However, persons whose professional qualification to represent natural or legal persons in design matters before the Benelux Office for Intellectual Property or a central industrial property office is officially recognised in accordance with the regulations laid down by the State concerned shall not be required to have exercised the profession. | Where the entitlement referred to in the first subparagraph, point (c), is not conditional upon the requirement of special professional qualifications, the person applying to be entered on the list who acts in design matters before the Benelux Office for Intellectual Property or a central industrial property office shall have habitually worked in the area of designs for at least five years. However, persons whose professional qualification to represent natural or legal persons in design matters before the Benelux Office for Intellectual Property or a central industrial property office is officially recognised in accordance with the regulations laid down by the State concerned shall not be required to have exercised the profession. |
Or. fr
Justification
The requirement of professional experience makes sense only if the experience is related to designs.
Amendment 15
Proposal for a regulation
Article 1 – paragraph 1 – point 93 – point a
Regulation (EC) No 6/2002
Article 78 – paragraph 6 – introductory part
| Text proposed by the Commission | Amendment |
| 6. The Executive Director may grant an exemption from any of the following: | 6. The Executive Director may grant an exemption from: |
Or. fr
Justification
It is difficult to understand how exactly these individual derogations from the requirement of five years’ professional practice are justified.
Amendment 16
Proposal for a regulation
Article 1 – paragraph 1 – point 93 – point a
Regulation (EC) No 6/2002
Article 78 – paragraph 6 – point b
| Text proposed by the Commission | Amendment |
| (b) the requirement set out in the first sentence of the second subparagraph of paragraph 4, if the person applying to be entered on the list furnishes proof that he has acquired the required qualification in another way; | deleted |
Or. fr
Justification
It is difficult to understand how exactly these individual derogations from the requirement of five years’ professional practice are justified.
Amendment 17
Proposal for a regulation
Article 1 – paragraph 1 – point 109
Regulation (EC) No 6/2002
Article 100 – paragraph 1
| Text proposed by the Commission | Amendment |
| In addition to the powers conferred upon the Executive Director by Article 157(4), point (o), of Regulation (EU) 2017/1001, the Executive Director shall exercise the powers conferred under Article 36(5), Article 37(1), Article 41(5), Article 42(2), Article 62(2), Article 65(5), Articles 66, 66c, 66e, Article 72(4), Article 72a(3), Article 73, Article 74a(1), Articles 74c, 78, Article 98(7), Article -106aa, Article -106ab(1), Articles -106ac and -106ad in accordance with the criteria set out in this Regulation and in the acts adopted pursuant to this Regulation.’; | In addition to the powers conferred upon the Executive Director by Article 157(4), point (o), of Regulation (EU) 2017/1001, the Executive Director shall exercise the powers conferred under Article 36(5), Article 37(1), Article 41(4), Article 62(2), Articles 66, 66c, 66e, Article 72(4), Article 72a(3), Article 73, Article 74a(1), Articles 74c, 78, Article 98(7), Article -106aa, Article -106ab(1), Articles -106ac and -106ad in accordance with the criteria set out in this Regulation and in the acts adopted pursuant to this Regulation.’; |
Or. fr
Justification
To take account of the deletions proposed by the rapporteur and correcting a clerical error.
Amendment 18
Proposal for a regulation
Article 1 – paragraph 1 – point 111
Regulation (EC) No 6/2002
Article 102 – point e
| Text proposed by the Commission | Amendment |
| (e) any other unit or person appointed by the Executive Director to that effect. | deleted |
Or. fr
Justification
The provision too vague, leading to legal uncertainty.
Amendment 19
Proposal for a regulation
Article 1 – paragraph 1 – point 120
Regulation (EC) No 6/2002
Article 107
| Text proposed by the Commission | Amendment |
| (120) Article 107 is amended as follows: | deleted |
| (a) Paragraph 1 is replaced by the following: | |
| ‘1. The Commission shall adopt an implementing act setting out rules for the implementation of this Regulation. That implementing regulation shall be adopted in accordance with the examination procedure laid down in Article 109(2).’; | |
| (b) paragraphs 2 and 3 are deleted; |
Or. fr
Justification
It is clearer to keep the original list.
Amendment 20
Proposal for a regulation
Article 1 – paragraph 1 – point 121
Regulation (EC) No 6/2002
Article 107
| Text proposed by the Commission | Amendment |
| (121) Article 107 is deleted. | deleted |
Or. fr
Justification
It is clearer to keep the original list.
Amendment 21
Proposal for a regulation
Article 1 – paragraph 1 – point 124
Regulation (EC) No 6/2002
Article 109a – paragraph 2
| Text proposed by the Commission | Amendment |
| 2. The power to adopt delegated acts referred to in Articles 47b, 53a, 55a, 64a, 65a, 66a, 66d, 66f, 66i, 67c, 78a and -106a shall be conferred on the Commission for an indeterminate period of time from [OP: please insert the date = the date of entry into force of this Regulation]. | 2. The power to adopt delegated acts referred to in Articles 47b, 53a, 55a, 64a, 65a, 66d, 66f, 66i, 67c, 78a and -106a shall be conferred on the Commission for an indeterminate period of time from [OP: please insert the date = the date of entry into force of this Regulation]. please insert the date = the date of entry into force of this Regulation]. |
Or. fr
Justification
Taking into account the rapporteur’s amendment (deletion of the reference to Article 66a).
Amendment 22
Proposal for a regulation
Article 1 – paragraph 1 – point 124
Regulation (EC) No 6/2002
Article 109a – paragraph 6
| Text proposed by the Commission | Amendment |
| 6. A delegated act adopted pursuant to Articles 47b, 53a, 55a, 64a, 65a, 66a, 66d, 66f, 66i, 67c, 78a and -106a shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. | 6. A delegated act adopted pursuant to Articles 47b, 53a, 55a, 64a, 66a, 66d, 66f, 66i, 67c, 78a and -106a shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. |
Or. fr
Justification
Taking into account the rapporteur’s amendment (deletion of the reference to Article 66a).
Amendment 23
Proposal for a regulation
Article 1 – paragraph 1 – point 127
Regulation (EC) No 6/2002
Article 110 b – paragraph 1
| Text proposed by the Commission | Amendment |
| 1. By [OP please complete: please insert the date = the first day of the month following 84 months after the date of entry into force of this Regulation], and every five years thereafter, the Commission shall evaluate the implementation of this Regulation. | 1. By [OP please complete: please insert the date = the first day of the month following 60 months after the date of entry into force of this Regulation], and every five years thereafter, the Commission shall evaluate the implementation of this Regulation. |
Or. fr
Justification
An evaluation after 5 years of implementation seems more reasonable than after 7 years.
Amendment 24
Proposal for a regulation
Annex I
Regulation (EC) No 6/2002
Annex IV – point 6 – subpoint c
| Text proposed by the Commission | Amendment |
| (c) for the third period of renewal: EUR 280 per design; | (c) for the third period of renewal: EUR 210 per design; |
Or. fr
Justification
This reasonable progressivity is more in line with the interests of companies, in particular SMEs.
Amendment 25
Proposal for a regulation
Annex I
Regulation (EC) No 6/2002
Annex – point 6 – point d
| Text proposed by the Commission | Amendment |
| (d) for the fourth period of renewal: EUR 560 per design. | (d) for the fourth period of renewal: EUR 280 per design. |
Or. fr
Justification
This reasonable progressivity is more in line with the interests of companies, in particular SMEs.
EXPLANATORY STATEMENT
Council Regulation (EC) No 6/2002 can be credited for establishing a European design protection system. But having been in place for over 20 years, the regulation needed to be modernised, in particular to adapt it to the digital age and also to make it more attractive for independent creators and businesses, in particular SMEs. This is the focus of the Commission proposal.
The rapporteur broadly agrees with the proposed guidelines, but suggests some 20 amendments which seek primarily to bolster legal certainty. The main aims are to clarify the ‘repair clause’ (recital 16, Article 20a), to remove powers from the Executive Director which are difficult to justify (Articles 42, 65, 72a, 78, 100 and 102), and to reduce the amount of the fees for 3rd and 4th renewals (annex).