COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT Accompanying the documents Proposal for 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 the Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the legal protection of designs (recast)
Date: 2022-11-28
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: European Union Intellectual Property Office, codification of EU law, designs and models, single market, spare part, trade-mark law

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   EUROPEAN COMMISSION  Brussels, 28.11.2022  SWD(2022) 369 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT  Accompanying the documents Proposal for 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 the  Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  on the legal protection of designs (recast)     {COM(2022) 666 final} - {COM(2022) 667 final} - {SEC(2022) 422 final} - {SWD(2022) 367 final} - {SWD(2022) 368 final}  
 
 
Executive Summary Sheet 

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?  

A. Need for action 

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’. 

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.  

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 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.  

This revision aims to address two main problems in particular: 

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

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.  

What is this initiative expected to achieve?  

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.  

These general objectives translate into the following 3 specific objectives:  

i. open up the spare parts aftermarket for competition; 
ii.  improve  the  accessibility,  efficiency  and  affordability  of  registered  Community  design 
protection; 
iii. increase complementarity and interoperability between the Community and national design 
systems, in particular by aligning procedural rules.  

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

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contribution to employment. 

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.  

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.  

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.  

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

B. Solutions 

  Baseline – no change: Current rules and procedures continue. 

As to spare parts protection, there are 3 policy options as follows: 

  Option  1.1  –  Full  liberalisation  for  all  designs:  The  market  of  ‘must-match’  spare  parts 
should  be  opened  for  competition  in  the  entire  EU,  extending  it  to  both  existing  and  new 
designs.  

  Option 1.2 – Instant full liberalisation for new designs followed by full liberalisation for 
old designs after  a transitional 10-year period:  As  option 1.1 but  designs already  granted 
before  the  entry  into  force  of  the  new  act  would  continue  to  be  protected  for  a  transitional 
period of 10 years. 

  Option 1.3 – Full liberalisation for new designs only: Designs already granted before entry 
into force would not be affected and allowed to be protected for maximum term of 25 years. 

As for the complex RCD procedures, there is one (unanimously supported) option: 

  Option 2 - Simplification and streamlining of RCD procedures, such as by modernising the 
requirements for design representation and facilitating the filing of multiple applications by 
abolishing the ‘unity-of-class’ requirement.  

As for the sub-optimal RCD fees, there is 1 option with 2 sub-options: 

  Option 3 - Lower RCD registration fee and easier multiple applications: This model allows 
easier access to RCD protection, in  particular for SMEs (cheaper acquisition of the right and 
first  renewal),  while  discouraging  companies  from  maintaining  non-utilised  designs  in  the 
register by increasing the fees for subsequent renewals. 

Sub-option 3.1: the registration fee for a single RCD is reduced from EUR 350 to EUR 250. 
For  each  additional  design  forming  part  of  a  multiple  application,  the  fee  is  reduced  to  EUR 
125. The fee for first renewal is EUR 70; for second renewal EUR 140; for third renewal EUR 
280; for fourth renewal EUR 560.  

Sub-option 3.2: the registration fee is also EUR 250 but each additional design of a multiple 
application  is  further  discounted  to  EUR  100.  All  renewal  fees  are  higher  than  under  the 
current  system.  The  fee  for  first  renewal  is  EUR  80;  for  second  renewal  EUR  160;  for  third 
renewal EUR 320; for fourth renewal EUR 640. 

As for the divergent rules at national level, there are 2 options: 

  Option 4.1: Partial further alignment of national laws, bringing increased consistency with the 
RCD  system.  This  option  involves  adding  provisions  to  the  Design  Directive  on  selected  

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design  law  aspects  that  it  does  not  yet  address  and  which  have  been  identified  by 
stakeholders as being in greatest need of alignment (in particular concerning procedures) with 
the Community Design Regulation.  

  Option  4.2:  Full  alignment  of  national  design  laws  and  procedures.  This  approach  would  be 
based on Option 4.1, encompassing its above components, but include all remaining aspects 
of substantive design law and procedures which are part of the Community Design Regulation 
but not the Design Directive. 

A combination of options including option 1.2, option 2, option 3.1 and option 4.1 are preferred.  

Option 1.2 is considered to be the most proportional one to achieve complete alignment in the single 
market on the principle of liberalisation. It is in line with the spirit of the transitory spare parts regime in 
the Design Directive, aiming at complete liberalisation of the spare parts market in the EU.  

This option also is in line with the Commission’s intention in the previous proposal in 2004 as well as 
consistent with and complementary to Regulation (EU) 461/2010 (the Motor Vehicle Block Exemption 
Regulation  or  MVBER)  in  the  antitrust  field.  Liberalisation  of  the  spare  parts  market  would  help  that 
antitrust  regime  to  achieve  its  full  benefits  for  enterprises  and  consumers  in  the  automotive 
aftermarket.  

Finally,  option 1.2  is consistent  with and complements efforts put forward in the Sustainable  Product 
Initiative that aims at promoting repairs and the circular economy, and is in line with the international 
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).  

Option  2  together  with  option  3.1  would  make  RCD  protection  more  accessible  and  affordable  for 
businesses  (keeping  pace  with  technological  progress)  and  promises  to  involve  significant  positive 
impacts and clear benefits for businesses, in particular SMEs and individual designers. 

Option 4.1, in particular by adding principal procedural rules to the Design Directive, in alignment with 
the  Community  Design  Regulation,  would  make  it  easier  and  less  costly  for  firms  and  designers  to 
obtain design protection across Member States, including through combined use of national and RCD 
systems.  

This option would also positively influence cooperation between the EUIPO and national IP offices in 
terms of facilitating  increasing convergence of practices and developing common tools for new areas 
where  alignment  is  desirable  (e.g.  invalidation  of  designs).  This  promises  to  generate  further  net 
benefits  for  users  of  the  design  protection  systems  while  improving  their  complementarity  and 
interoperability.  

Analysis and past experience with voluntary approaches has led the Commission to conclude that all 
the  preferred  options  should  be  implemented  via  legislative  changes  to  the  Design  Directive  and  the 
Community Design Regulation. 

Who supports which option?  
The  proposed  modernisation,  streamlining  and  further  alignment  of  the  design  protection  systems  in 
the  EU  in  terms  of  options  2,  3  and  4.1.b  is  strongly  supported  by  Member  State  authorities,  the 
European Parliament, design intensive industries, associations of design right holders and intellectual 
property attorneys and agents. 

Opening  up  the  spare  parts  aftermarket  in  terms  of  option  1.2  is  strongly  supported  by  independent 
spare  parts  manufacturers  and  distributors,  associations  representing  their  interests,  academia,  and 
consumer organisations.  

C. Impacts of the preferred option 

What are the benefits of the preferred option (if any, otherwise main ones)?  
For consumers: Liberalising the spare parts aftermarket through option 1.2 would involve savings of 
EUR  340-544  million.  These  savings  would  be  fully  realised  after  the  proposed  10-year  transition 
period. During that period, every year benefits would increase by EUR 4 to 13m.  

For firms and individuals applying for design protection: Adjusting RCD fees by option 3.1 would 

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make basic access to registration less costly and bring annual savings of EUR 6m to those protecting 
designs for 5 to 10 years.  

Simplifying and streamlining the RCD system by option 2 would facilitate access to registration while 
ensuring greater predictability and legal certainty. To the extent that this is quantifiable, it would involve 
annual savings of EUR 1,6m as  a consequence of  updating  the design representation requirements, 
and the extended possibility to file multiple applications.  

Further  alignment  of  the  rules  through  option  4.1  would  make  it  easier  and  less  costly  for  firms  and 
designers  to  obtain  design  protection  across  Member  States,  including  through  combined  use  of 
national and RCD systems. It would bring greater predictability (less need for external expertise), help 
reduce costs in managing IP portfolios, and facilitate the cancellation of registered designs that do not 
merit protection. 

For the EUIPO: simplifying and streamlining procedures through option 2 would enable EUIPO to run 
RCD operations more efficiently (less deficient applications to treat; smoother running of workflows and 
back  office  IT  landscape  due  to  alignment  with  EU  trade  mark  procedures).  It  would  further  facilitate 
the  EUIPO’s  task  of  promoting  convergence  of  practices  and  tools  in  cooperation  with  national  IP 
offices (EUIPO serving as benchmark). 

For Member States and national IP Offices: Further alignment of the rules through option 4.1 would 
allow  national  IP  Offices  to  become  more  attractive  and  competitive  within  the  2-tiered  design 
protection system in the EU. Extended alignment of the rules would also allow these offices to benefit 
from extended cooperation with the EUIPO, to promote convergence of practices and tools. 
What are the costs of the preferred option (if any, otherwise main ones)?  

For manufacturers of motor vehicles: No direct cost, but liberalisation of the spare parts aftermarket 
would cause a loss of income corresponding to the savings expected for consumers. 

For  firms  and  individuals  applying  for  design  protection:  Reformed  design  protection  systems 
would require some adaptation to new rules, including a learning process. 

For  the  EUIPO:  Simplification  through  option  2  (extension  of  the  option  to  file  multiple  applications) 
and adjusting fees through option 3.1 would bring a loss of revenue corresponding to fee savings  for 
firms and individuals. Options would also involve (minor) implementing costs to adapt workflows and IT 
processes.  

For  Member  States  and  national  IP  Offices:  Further  harmonisation  of  rules  by  Option  4.1,  in 
particular  in  the  area  of  procedures  (e.g.  establishment  of  office-based  invalidity  proceedings)  will 
involve implementing costs. These costs are however considered both bearable and proportional. 

How will businesses, SMEs and micro-enterprises be affected?  
Simplifying  RCD  procedures  through  option  2  and  adjusting  RCD  fees  through  option  3.1  would  be 
particularly beneficial for SMEs, facilitating access to and making design registration for the initial 5 or 
10-year terms more affordable. Compared to large firms, SMEs not only tend to file fewer designs but 
also choose shorter protection periods. 

Option 4.1 would also facilitate access to design protection across Member States  (including through 
combined  use  of  national  and  RCD  systems  due  to  their  increased  interoperability),  particularly  for 
SME’s.  This  would  also  be  as  a  result  of  greater  predictability  and  legal  certainty,  since  smaller 
companies are more dependent on external legal expertise.  

Providing  office-based  invalidity  procedures  would  further  help  SMEs  in  particular  to  have  invalid 
designs removed from the design registers efficiently. 

Will there be significant impacts on national budgets and administrations?  
Member  States’  national  IP  Offices  would  face  minimum,  proportional  implementing  costs  as  a 
consequence of the increased alignment of the rules, in particular for design procedures.  

Will there be other significant impacts?  

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There are no other significant impacts to be expected. 

D. Follow-up 

When will the policy be reviewed?  
Five years after the Regulation becomes fully applicable, the Commission would submit a report on the 
implementation of the Regulation to the European Parliament and the EU Council.  

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