Opinion of the Economic and Social Committee on the 'Amended proposal for a Council Regulation (EC) on Community Design'
Date: 2000-01-27
Institutions: European Economic and Social Committee
Subjects: approximation of laws, consolidation of EU law, designs and models, industrial property, small and medium-sized enterprises

15.3.2000

EN

Official Journal of the European Communities

C 75/35

Opinion of the Economic and Social Committee on the ‘Amended proposal for a Council
Regulation (EC) on Community Design’

(2000/C 75/13)

On 9 September 1999 the Council decided to consult the Economic and Social Committee, under Article
308 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 14 December 1999. The rapporteur was
Mr Lehti.

At its 369th plenary session (meeting of 27 January 2000) the Economic and Social Committee adopted
the following opinion by 57 votes to four, with two abstentions.

1.

Introduction

A system of Community design law is to be implement-
1.1.
ed by a Council regulation and a related directive. The
regulation would establish a similar type of legal set-up (a
Community design right) as that which exists for Community
legislation on trade marks, whereby one application would be
sufficient for obtaining legal protection for the design of the
external form of an object in all Member States. The Office for
Harmonisation in the Internal Market (trademarks and designs)
based in the Spanish city of Alicante would grant Community
design rights.

1.2.
The draft regulation would also create an unregistered
Community design right, which would be valid for three years
after the design was made available to the public within the
Community.

The so-called ‘repair’ clause should avoid the creation ofcaptive
markets in spare parts,
in particular in the motor vehicle
sector. The Committee notes that this problem also exists in
other sectors.

1.5.
The Commission undertook to launch a consultation
exercise after adoption of the Directive, involving the parties
most concerned. The consultation exercise is now underway
and a summary of it will be drawn up.

1.6.
The draft Regulation excludes, for the time being, the
registration of the design of a component part of a complex
product, the appearance of which determines the design of the
component part (Article 10a). A proposal on the use and
protection of spare parts under this draft regulation shall be
submitted by the Commission in parallel with the proposal
which the Commission shall make to complete the internal
market in respect of spare parts within the framework of the
Design Directive.

The substantive legal provisions of the draft regulation
1.3.
are consistent with the legal protection provided by Directive
98/71/EC, as this directive harmonises Member States’ national
legislation on design rights. The directive must be implemented
through national legislation by 28 October 2001 at the latest.

2. General comments

1.4.
The original draft directive was submitted in 1993. As
discussions on the draft directive were still ongoing, work on
the draft regulation was postponed in autumn 1995. The
Directive was finally adopted on 13 October 1998 as a result
of the Conciliation procedure. According to the compromise
reached by the Conciliation Committee, Member States must
continue to apply their existing regulations on the use of spare
parts for the repair of defective or faulty products. The
agreement on spare parts is embodied in Articles 14 and 18 of
the Directive, as well as the recitals. The Commission submitted
the amended proposal for a Council Regulation in June 1999.

During the Conciliation procedure the discussion focused in
particular on the free use of spare parts for repair purposes
and the protection of their design. In design terms, the problem
related mainly to component parts of complex products which
may be used to restore the original appearance of the latter.

2.1.
The Committee believes that the design protection
Directive already implemented and the complementary Regu-
lation are important measures for the European Community.
The absence of uniform design protection legislation has made
the registration of designs through separate national systems
an expensive and slow process. Small- and medium-sized
enterprises
succeeded in
in particular have not always
obtaining sufficiently extensive protection for their products.

2.2.
The Committee believes it is important for the directive
on the legal protection of designs to be transposed into
national
legislation by 28 October 2001. The Committee
recognises that this will entail reviewing, and possibly even
completely revising, existing Member State legislation on
design protection. The Directive and the complementary
Regulation should harmonise design protection legislation
within the Community and make it possible to obtain design
protection throughout the Community by means of a single
registration procedure.

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2.3.
The Committee feels that inclusion of the concept of
unregistered designs in the Regulation will be effective. It will
provide better design protection for products with a short real
life span, such as textiles and toys. The concept and content of
unregistered designs should, however, be clarified. In addition,
the restriction regarding bad faith in Article 20(2) makes an
unregistered design practically worthless, the more so as the
right holder has no right to information; it should therefore be
deleted entirely.

2.4.
Progress on the Regulation has taken place according
to schedule. The Commission aims to complete work on the
Regulation by the end of 2000. Of the Regulation’s 128
articles, numbers 1 to 100 have been dealt with so far. The
work of the Council working group is still at a very early stage
and the wording has not yet been finalized. Agreement on
some key articles has still not been reached, partly due to
problems of language and interpretation. There are also clearly
differing views on design protection for unregistered products.
Various comments have been submitted on all of the 100
articles discussed so far. The aim is to complete the first reading
by early 2000 and the Commission wants the Regulation to
be adopted by the end of 2000.

3. Specific comments

3.1.
The Committee feels it is necessary to bring certain
points to the attention of the Commission in order to improve
the objectives and effectiveness of this important regulation
on the protection of designs.

3.2.
Article 1.2a: The concept of unregistered designs
requires further clarification especially with regard to the
duration of protection. The problem relates to an important
matter of principle, namely that the entire concept must be
drafted in such a way that there is no scope for interpretation.
This also applies to Article 8.

3.3.
Article 4.3: The wording of the definition of ‘normal
use’ in this clause does not follow the wording of the Designs
Directive. In fact, it reverts substantially to the wording of
Article 3.4 of the Council’s Common Position of 17 June
1997, which was rejected by Parliament on its second reading
and not reinstated during conciliation. It is important that the
wording of the Directive is followed precisely in the Regulation.

The Committee considers that the current wording of
2.5.
Article 10 on components is consistent with the intention of
the Directive. The proposal would maintain in force Member
States’ existing legal provisions relating to the protection of
spare parts. Changes can only be introduced to these provisions
if the purpose is to liberalise the markets for such parts.
Furthermore, the matter will be reviewed three years after
implementation of the Directive. At this time the Commission
will propose any necessary amendments to both the Directive
and the Regulation, as this matter was ‘frozen’ during dis-
cussions on the Directive. However the Commission intends
to make changes to the wording without changing the content
of the article itself. The Commission will also submit an
opinion on incorporating spare parts into the design protection
Regulation.

Article 15: It is not sufficiently clear from the text how

3.4.
relationships between designers are to be determined.

Article 20.2: Although the Committee understands and
3.5.
supports the intention behind this clause, it finds the wording
somewhat ambiguous. The Committee understands that the
intention is to safeguard persons who unintentionally or
innocently use a design or acquire a product which incorpor-
ates a design for which unregistered design protection is
claimed. The Committee queries, however, whether the words
‘the use contested results from copying in bad faith the design
protected’ is wide enough to cover every circumstance. Further
consideration of the wording of this clause is required.

2.6.
The Committee considers that the wording of the draft
regulation will require further honing to achieve conceptual
clarity. The current proposal
leaves too much scope for
interpretation.

Article 27.5: The Community Design is intended to be
3.6.
based upon the unitary principle: i.e., it is a Community right.
Article 27.5 completely undermines that principle by allowing
extensive and substantial derogations to apply in individual
Member States. In the Committee’s opinion, with the possible
exception of designs which are contrary to public policy or
morality (Article 10), no derogations from the unitary principle
should be allowed.

The legal basis of

the draft Regulation has been
2.7.
changed, as the President of the Legal Affairs and Citizen’s
Rights Committee of the European Parliament invited the
Commission to withdraw the draft Regulation and to put
forward a new proposal, based on Article 308 of the Treaty.
Under this Article the Regulation will be adopted unanimously
in the Council after consultation of the Parliament.

3.7.
Article 39: It is vital that applications for registration
of designs of component parts should identify the complex
product to which they relate with sufficient detail to enable
they are with
third parties to recognise them for what
reasonable certainty. Applicants for registration of a design of
a component part of a complex product should be required to

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submit a drawing or illustration of the complex product to
enable examination to take place under Article 48 (see below
under Article 49a).

compliance with the requirements for protection, otherwise
there is a very real risk of innocent third parties being ‘litigated
to death’ by the abusive application of the system.

Article 49a:

3.8.
It is essential that examination under
Article 48 should include at least some examination for

Article 67: The principles relating to the examination

3.9.
of facts need to be specified more clearly.

Brussels, 27 January 2000.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

Opinion of the Economic and Social Committee on the ‘Communication from the Commission
to the Council, the European Parliament, the Economic and Social Committee and the Committee
of the Regions on Enhancing Tourism’s Potential for Employment’

(2000/C 75/14)

On 10 May 1999 the Commission decided to consult the Economic and Social Committee, under Article
262 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 14 December 1999. The rapporteur was
Mr Malosse.

At its 369th plenary session (meeting of 26 January 2000), the Economic and Social Committee adopted
the following opinion by 71 votes to two, with one abstention.

1. The background to the Commission’s communication

1.1.
The European Commission has forwarded to the
Economic and Social Committee, along with the Council, the
European Parliament and the Committee of the Regions, a
Communication on the follow-up to the Conclusions and
Recommendations of the High Level Group on Tourism and
Employment, published in October 1998. Consequently, the
Committee opinion will also examine the work of the High
Level Group (HLG).

1.2.
The Communication is the most recent of the policy
documents aiming to relaunch a European tourism policy,
which has been ‘grounded’ since the November 1997 European
Conference on Tourism, organised by the Luxembourg presi-
dency. Since 1996, a proposal for a multi-year programme for
European tourism, known as ‘Philoxenia’ (1), has been so
successfully blocked by the Council that it would no longer
appear to be on the cards (although the Commission does still

include it in its strategy, when it mentions the Austrian
presidency’s much watered-down compromise proposal). The
Communication could, thus, provide the ‘new approach’ called
for by the Committee in the own-initiative opinion it adopted
at the plenary session of 24 and 25 March 1999 (2).

1.3.
The Communication draws deeply from the con-
clusions of the High Level Group (HLG). Its primary point is
the need for up-to-date, Europe-wide statistics on tourism
activities, skills and the most notable current schemes. It
sensibly makes a link between tourism and the National
Employment Action Plans, European employment policy
instruments set up following the Luxembourg jobs summit in
1997. Lastly, the Communication singles out a number of the
proposals made in the HLG report, highlighting potential
synergies of structural, research and development, education
and training, and business policy instruments. The Communi-
cation should devote more space to some of the HLG’s

(1) COM(96) 168 final — OJ C 222, 31.7.1996, p. 9; OJ C 30,

30.1.1997, p. 103.

(2) OJ C 138, 18.5.1999, p. 4.