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

Why? What is the problem being addressed?

2. The discouragement of businesses, in particular, SMEs and individual designers, from seeking for registered design protection at EU or national level due to the partly outdated, complex procedures and sub-optimal fees to be paid for the RCD, as well as divergent rules at national level which are not yet aligned with those of the RCD system.

1. Most importantly, the disruption in intra-EU trade and barriers to competition in some Member States with respect to repair spare parts.

This revision aims to address two main problems in particular:

The Commission therefore announced (in a 2020 communication ) that it will revise the EU legislation on design protection. Both the European Parliament and Council supported this revision.

EU legislation on design protection has remained practically unchanged since it was adopted. An evaluation of that legislation ( SWD (2020) 264 final ) concluded that the design protection system in the EU works well overall but that there are certain shortcomings that need to be addressed to make it fit for purpose in the digital age and more accessible and efficient for businesses, SMEs (small and medium-sized enterprises) and individual designers.

The main unsolved issue remains protecting the aftermarket for visible spare parts. 12 Member States allow free competition in this sector, while the rest retain the manufacturers’ monopoly, despite the encouragement to open the market that is embedded in the Design Directive.

The laws of Member States providing for design protection at domestic level were partially aligned by the Design Directive 98/71/EC . As a complement alongside national systems, the Community Design Regulation (EC) 6/2002 established unitary protection (i.e. with equal effect throughout the EU) for designs in 2003. While national designs are registered by the national intellectual property (IP) offices of Member States, Community designs (RCDs) are registered and administered by the European Union Intellectual Property Office (EUIPO). Depending on the territorial scale of economic activity, firms and designers can therefore either opt for a national or Community-wide registered design right, or apply for and maintain parallel protection within the same territory through both the national and Community systems. ‘Community’ in this sense means ‘EU’.

iii. increase complementarity and interoperability between the Community and national design systems, in particular by aligning procedural rules.

The general aim of this initiative is to promote contribution to design excellence, innovation and competitiveness in the EU by ensuring that the design protection system is fit for purpose in the digital age and becomes more accessible and efficient for individual designers, SMEs and design-intensive industries. Furthermore, it aims to complete the single market for repair spare parts.

What is the value added of action at the EU level?

Action at EU level would thus ensure that the design protection system in Europe as a whole gets substantially more accessible and efficient for businesses, in particular SMEs and individual designers. Completing the single market for repair spare parts would increase competition and substantially benefit consumers, who would be able to choose between competing parts at lower prices.

As regards the spare parts issue specifically, the single market can only be completed at EU level. The more than 20 years of experience with the current Design Directive has shown no strong trend towards alignment among Member States on a voluntary basis or through self-regulation by industry.

The Community design system was created by and thus can only be changed via the EU Regulation. Measures aiming at extending the current level of approximation of national design rules should continue through the Design Directive and consequently can only be taken at EU level, also given the need to ensure consistency with the RCD system.

Design-intensive industries substantially contribute to the EU’s economy: in 2014-2016 they represented almost 16% of EU GDP and of 14 % of all jobs. Pursuing the objectives of this initiative therefore promises to have a positive impact on such design-intensive industries, including their contribution to employment.

What legislative and non-legislative policy options have been considered? Is there a preferred choice or not? Why?