COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents 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 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

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.11.2022  SWD(2022) 367 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents 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 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) 368 final} - {SWD(2022) 369 final}  
 
 
1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The  (first  package)  proposal  for  a  Regulation  amending  Regulation  (EC)  No  6/2002  and  repealing 
Commission  Regulation  (EC)  No  2246/2002  is  based  on  Article  118(1)  of  the  Treaty  on  the 
Functioning of the EU (TFEU). Article 118(1) empowers the European Parliament and the Council to 
establish  measures  for  the  creation  of  European  intellectual  property  rights  throughout  the  EU, 
including  the  setting  up  of  centralised  Union-wide  authorisation,  coordination  and  supervision 
arrangements. 
The (second package) proposal for a recast Directive on the legal protection of designs is based on 
Article  114(1)  TFEU.  This  Article  empowers  the  European  Parliament  and  the  Council  to  adopt 
measures  for  the  approximation  of  the  provisions  laid  down  by  law,  regulation  or  administrative 
action  in  Member  States,  which  have  as  their  object  the  establishment  and  functioning  of  the 
internal market. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In the case of both Article 118 and Article 114 TFEU, the Union’s competence is shared.  

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

In preparation of the two package proposals, the Commission conducted a comprehensive first public 
consultation  between  18  December  2018  and  30  April  2019.  Its  aim  was  to  gather  sufficient 
stakeholder evidence and views in order to support the evaluation of the EU designs legislation and 
establishing  the  degree  to  which  that  legislation  works  as  intended,  is  fit  for  purpose  and  what 
problems  need  further  action.  As  a  complement  to  that  extensive  consultation,  the  Commission 
carried  out  a  second  public  consultation  between  29  April  and  22  July  2021  to  obtain  additional 
stakeholder  evidence  and  views  to  support  the  review  of  the  legislation  on  designs  in  relation  to 
selected issues and potential options and their impacts.  

Both  the  explanatory  memorandums  of  the  two  package  proposals  and  the  common  impact 
assessment report (Section 3) contain a section on the principle of subsidiarity and refer to question 
2.2 below. 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
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Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

Yes.  The  explanatory  memorandum  of  the  (first  package)  proposal  for  a  Regulation,  which 
summarises  the  relevant  content  of  Section  3  of  the  common  impact  assessment  report,  provides 
that Article 118(1) TFEU can only be applied for the creation of European intellectual property titles. 
The Community design system is an autonomous regime created by an EU Regulation already in 2002 
and applies independently of any national system. The European Union Intellectual Property Office 
(EUIPO, formerly Office for Harmonisation in the Internal Market - OHIM) is a regulatory agency with 
legal,  administrative  and  financial  autonomy,  which  was  created  by  the  Council  to  manage  the 
registration system for the Community design (RCD) and Community trade mark (now EUTM). As was 
the case with the changes introduced to the trade marks regime under Regulation (EU) 2017/1001, 
the  analysis  carried  out  in  the  impact  assessment  report  to  this  initiative  proved  that  the 
modification  of  certain  provisions  of  the  relevant  basic  Regulation  (EC)  No  6/2002  on  Community 
designs is necessary, in particular, to update, improve and streamline the registration system for the 
RCD.  The  explanatory  memorandum  of  the  (second  package)  proposal  for  a  Directive  provides,  in 
summary  of  the  relevant  content  of  Section  3  of  the  common  impact  assessment  report,  that  the 
identified problems related to the significant divergences of the regulatory framework either do not 
allow, or notably distort, a level playing field for EU companies with further negative consequences 
on their competitiveness and that of the EU as a whole (e.g. spare parts). It is therefore advisable to 
adopt measures that can improve the relevant conditions for the functioning of the internal market. 
Such measures aiming at extending the current level of approximation through the Directive can only 
be taken at EU level, all the more so given the need to ensure coherence with the Community design 
system. It  has to be  considered in this context that the  latter  is embedded in the  European design 
system which is built on the principle of coexistence and complementarity between national and EU-
wide  design  protection.  While  the  Regulation  provides  a  complete  system  where  all  issues  of 
substantive  and  procedural  law  are  provided  for,  the  current  level  of  legislative  approximation 
reflected in the Directive is only limited to selected provisions of substantive law. In order to be able 
to  ensure  effective  and  sustainable  coexistence  and  complementarity  between  the  components 
involved, it is necessary to create an overall harmonious system of design protection in Europe with 
similar  substantive  rules  and  at  least  principal  procedural  provisions  which  are  compatible.  As 
regards  the  issue  of  design  protection  for  spare  parts  specifically,  it  needs  to  be  added  that  the 
completion of the internal market for spare parts can only be achieved at EU level. The more than 20 
years of experience with the freeze-plus clause (allowing Member States who have not yet done so, 
to open up the spare parts market for competition by introducing a so called ‘repair clause’) in the 
Directive  has shown no strong trend towards harmonisation among Member States on a voluntary 
basis  (despite  the  introduction  of  a  repair  clause  in  a  few  more  Member  States)  or  through  self-
regulation by the industry. Competition in spare parts is currently allowed in 12 Member States only 
(state of play as of mid 2022). Action at EU level would ensure that the design protection system in 
Europe as a whole gets substantially more accessible and efficient for businesses, in particular Small 
and  medium  sized  enterprises  (SMEs)  and  individual  designers.  It  would  further  ensure  the 
outstanding  completion  of  the  single  market  for  repair  spare  parts  to  the  substantial  benefit  of 
consumers being able to choose between competing parts at lower prices. 

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

The  identified problems to be  solved by the  present package initiatives  have a strong cross-border 
(single  market)  dimension  and  the  objectives  pursued  by  the  initiatives  can  therefore  not  be 
sufficiently  achieved  by  the  Member  States  acting  alone.  In  case  of  the  autonomous  Community 
design  system,  created  by  Regulation  (EC)  No  6/2002  and  applying  independently  of  any  national 

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system,  it  is  clear  that  it  is  only  the  Union  legislator  that  can  do  the  required  modernisation, 
improvement  and  streamlining  of  that  system.  The  identified  problems  related  to  the  significant 
divergences of the regulatory framework as result of the limited degree of harmonisation brought by 
the  current  Design  Directive  98/71/EC  cannot  be  solved  by  the  Member  States  alone  either.  The 
required measures to improve the relevant conditions for the functioning of the internal market by 
extending the current level of approximation through the Directive can only be taken at Union level, 
given also the need to ensure coherence with the Community design system.  

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

The existing market fragmentation in the EU in the area of repair spare parts is a problem for 
a majority of respondents, as highlighted by the first public consultation. For SMEs, divergent 
approaches of the Member States are problematic for cross-border operations as they create 
legal  uncertainty  and  unpredictability.  For  others,  including  design  users  and  independent 
producers, the current patchwork of national laws leads to difficulties with and high cost of 
ensuring compliance, agreeing on licensees, setting out distribution networks and managing 
imports. Fragmentation does in particular not allow independent producers and distributors 
to benefit from economies of scale through (permissible) free economic activity throughout 
the  entire  Union  market.  Also  customers  are  insecure  of  whether  or  not  and  in  which 
Member States the purchase of certain spare parts is lawful and they are deprived in parts of 
the Union from choosing between competing spare parts.  Solid economic analysis suggests 
that  if  there  was  an  EU-wide  repair  clause  exemption,  EU  consumers  are  currently 
overspending  between  415  and  664  million  euros  annually  on  the  purchase  of  visible 
automotive spare parts alone. 
The non-harmonisation of procedures in the area of industrial designs, such as the resulting 
availability or  not  of  certain  procedures  and tools,  legal  uncertainty  and  different  speed of 
registration,  lead  to  an  uneven  playing  field  which  is  to  the  detriment  of  all  users  of  the 
European industrial design system, regardless of the geographical scope of design protection 
they  seek  to obtain.  As  a  result,  a  company,  planning  its  industrial  design  strategy,  faces  a 
multitude of unevenly regulated regimes, which present applicants with different degrees of 
accessibility,  complexity,  predictability  and  speed  in obtaining  design  protection  leading to: 
higher costs and delays; underuse of (part of) the industrial design systems and distortion of 
competition. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

The absence of the EU level action would conflict with the core objective laid down in Article 
3  of  the  Treaty,  which  is  to  establish  an  internal  market  and  to  work  for  the  sustainable 
development of Europe based on balanced economic growth and price stability, and a highly 
competitive social market economy.  

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

The required modernisation, improvement and streamlining of the autonomous Community 
design system cannot  be  achieved by Member States but  requires Union action. As for the 

5 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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divergences of the regulatory framework at national level, Member States do not  have the 
possibility to adopt appropriate measures implying effective and efficient further alignment 
of the regulatory framework in accord also with the Community design system, at reasonable 
cost  and  time.  In  particular,  as  far  as  the  fragmented  legal  framework  in  the area of  spare 
parts protection is concerned, the more than 20 years of experience with the current Design 
Directive  has  shown  no  strong  trend  towards  harmonisation  among  Member  States  on 
voluntary basis or through self-regulation by industry.  

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

As revealed by the evaluation carried out by the Commission, the legal environment in the 
field  of  industrial  designs  is  very  heterogeneous,  due  to  the  limited  scope  of  the  current 
Design Directive 98/71/EC, and yet lacking alignment with the Community Design Regulation 
(EC)  No  6/2002.  The  current  landscape  of  EU  design  law  is  thus  characterised  by  a  wide 
divergence between national rules and procedures, both among themselves and in relation 
to the rules and procedures applied by the EUIPO. A clear patchwork of conflicting national 
design  laws  exists  with  respect  to  design  protection  for  repair  spare  parts.  While  twelve 
Member  States  exclude  design  protection  and  allow  free  competition,  the  rest  retain 
manufacturers’  design  right  monopoly  despite  encouragement  to  open  the  market 
embedded in the Design Directive.   

(e)  Is the problem widespread across the EU or limited to a few Member States? 

As  follows  from  the  information  given  under  point  (d),  the  problems  to  be  tackled  are 
widespread across the EU. 

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No, the proposed measures are proportionate, as they involve marginal cost of transposition 
for Member States while bringing substantial economic benefits for firms and designers. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

The European Council has repeatedly called on the Commission to present proposals for the 
revision  of  both  the  basic  Community  Design  Regulation  (EC)  No  6/2002  and  the  current 
Design  Directive  98/71/EC  to  modernise  the  EU  design  protection  systems  and  to  make 
design protection more attractive for individual designers and businesses, especially SMEs. In 
this  context  it  requested  to  address  and  consider  measures  aimed  at  supporting  the 
complementary  relationship  between  the  Community,  national  and  regional  design 
protection systems,  as well as efforts  to reduce  areas of divergence.  A few Member States 
however  expressed  disagreement  or  reluctance  with  the  proposed  full  liberalisation  of  the 
repair  spare  parts  aftermarket  through  the  insertion  of  a  repair  clause  into  the  Design 
Directive.  Another  Member  State  also  raised  concerns  about  the  proposed  introduction  of 
mandatory administrative invalidity procedures before the national IP offices of the Member 
States,  as  done  already  in  the  framework  of  the  previous  reform  of  the  EU  trade  mark 

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legislation.    

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

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, given also the 
need  to  ensure  coherence  with  the  RCD  system.  As  regards  the  spare  parts  issue  specifically,  the 
completion  of  the  internal  market  can  only  be  achieved  at  EU  level.  The  more  than  20  years  of 
experience  with  the  current  Design  Directive  has  shown  no  strong  trend  towards  harmonisation 
among Member States on 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. It would further 
ensure the outstanding completion of the single market for repair spare parts for the sake of greater 
competition and to the  substantial benefit of consumers being able to choose between competing 
parts at lower prices. 

(a)  Are there clear benefits from EU level action?  

Yes. 

The proposed liberalisation of the spare parts aftermarket will involve savings for consumers 
of  EUR  340-544  million.  These  savings  will  be  fully  realized  after  the  proposed  ten-year 
transition period. During that ten-year transition, each year benefits will increase by EUR 4 to 
13m.  

The  proposed  adjustment  of  RCD  fees  will  make  basic  access  to  registration  for  firms  and 
natural  persons  applying  for  design  protection  less  costly  and  shall  bring  annual  savings  of 
EUR  6m  to  those  protecting  designs  for  5  to  10  years.  The  proposed  simplification  and 
streamlining  of  the  RCD  system  will  facilitate  easier  access  to  registration  while  ensuring 
greater  predictability  and  legal  certainty.  To  the  extent  quantifiable,  it  shall  involve  annual 
savings  of  EUR  1.6m  as  consequence  of  the  update  of  the  design  representation 
requirements,  and  the  extended  possibility  to  file  multiple  applications.  As  for  the  EUIPO 
itself, the simplification and streamlining of procedures will enable it to run RCD operations 
more efficiently (less deficient applications to treat; smother running of workflows and back 
office IT landscape due to alignment with EUTM procedures). It shall further facilitate its task 
of  promoting  convergence  of  practices  and  tools  in  cooperation  with  national  IP  offices 
(EUIPO serving as benchmark). 

The proposed further harmonisation of rules will 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  will  bring  greater  predictability  (less  need  for  external 
expertise),  help  reduce  costs  in  managing  IP  portfolios,  and  facilitate  the  cancellation  of 
registered designs not meriting protection. It shall allow national IP Offices to become more 
attractive and competitive within the two-tier design protection system in the EU. Extended 
harmonisation of rules will also allow  them to benefit from extended cooperation with the 
EUIPO to foster convergence of practices and tools. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

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benefits per unit cost)? Will the functioning of the internal market be improved? 

While there are no economies of scale as such, the objectives pursued by the two package 
initiatives  can  only  be  effectively  and  efficiently  achieved  at  EU  level.  Both  initiatives  will 
clearly contribute to improving the functioning of the internal market.  

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The completion of the single market in the area of repair spare parts will bring more and fair 
competition,  facilitate  intra EU trade  and create greater legal  certainty,  resulting in greater 
choice  and  lower  prices  to  the  benefit  of  consumers.  This  may  also  help  the  existing  EU 
Motor  Vehicle  Block  Exemption  regime  in  the  field  of  antitrust  achieve  its  full  benefits  for 
enterprises and consumers. 
Further  approximation  of  national  provisions,  in  particular  in  the  area  of  procedures  in 
alignment with the successful Community design regime, will make it easier and less costly 
for firms and designers to obtain design protection across Member States, including through 
the combined use of national and RCD systems, and in the context of multijurisdictional filing 
strategies.  This  will  also  increase  predictability,  help  firms  reduce  costs  in  managing 
multinational IP portfolios, and make it easier and cheaper to have invalid designs removed 
from  the  register.  Such  greater  alignment  of  rules  will  have  also  positive  impacts  on  the 
cooperation  between  the  EUIPO  and  national  IP  offices  under  the  existing  framework  laid 
down in Article 152 of the EU Trade Mark Regulation (EU) 2017/1001 in terms of facilitating 
extension of convergence of practices. This promises to further potentiate the net benefits 
for users of the design protection systems in the EU while enhancing their complementarity 
and interoperability. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Yes.  Competence  in  the  area  of  industrial  designs  continues  to  be  a  shared  one.  The 
proposed  completion  of  the  single  market  in  the  area  of  repair  spare  parts  through  the 
introduction of a Union-wide repair clause promises to bring substantial economic benefit in 
particular for consumers. The proposed further harmonisation of national rules in alignment 
with  the  Community  design  system  will  provide  firms  and  designers  with  easier  and  more 
efficient  access  to  registered  design  protection  across  the  entire  EU.  This  will  actually  also 
help national IP offices to become more attractive and enable both the EUIPO and national IP 
offices to expand cooperation to promote convergence of practices, thereby potentiating the 
net benefits for users of the design protection systems in the EU. The partial (limited) loss of 
national competence dwarfs in comparison.   

(e)  Will there be improved legal clarity for those having to implement the legislation? 

It is expected that extended harmonisation of national rules in the area of industrial designs 

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will clearly lead to improved legal clarity and certainty as compared to today’s fragmented 
and diverging legal framework. 

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

Yes.  

As  stated  in  the  explanatory  memorandum  of  the  (first  package)  proposal  for  a  Regulation,  the 
relevant proposal has been designed to reduce the administrative burdens and compliance costs for 
businesses  and  individual  designers  using  the  Community  design  system  and  for  the  EUIPO.  The 
proposal involves targeted amendments to the self-standing Regulation (EC) No 6/2002 and does not 
go beyond what is necessary to achieve the identified objectives.  

According to the explanatory memorandum of the (second package) proposal for a recast Directive, 
the  addition  of  targeted  harmonisation  particularly  in  the  area  of  registration  and  invalidity 
procedures  focusses  on  principal  provisions  in  procedural  areas  identified  by  stakeholders  to  be  in 
greatest need of alignment with relevant provisions of the Regulation. The impact assessment report 
looked  also  at  the  option  of  a  full-scale  harmonisation  of  all  design  provisions  (Option  4.2)  but 
considered  it  disproportionate  to  the  actual  needs  (see  Section  6.4  of  the  Impact  Assessment).  As 
regards  the  issue  of  spare  parts  protection,  the  insertion  of  a  repair  clause  by  means  of  preferred 
Option 1.2 is considered to be most proportional to complete the internal market. Such action at EU 
level does not cause any immediate costs. Aftermarket liberalisation only requires legal acts in those 
Member States that currently protect spare parts to lift this protection and hence causes the lowest 
administrative costs of all options considered. Furthermore, by providing for a transitional period of 
ten years during which existing design rights will continue to be protected, vehicle manufacturers will 
be  allowed  to  adjust  their  market  conduct  with  minimum  risk  or  disruption  to  investment  and 
innovation. This option is also adequately prudent when it comes to the issue of fundamental rights 
and international obligations (see Section 8.1 of the impact assessment report). 

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

The proposed action in form of the two package proposals is clearly an appropriate way to achieve 
the objectives. While the existing Community design system can in any case only be modernised and 
improved by amending the basic Regulation, the required further harmonisation of national rules in 
alignment  with  the  Community  design  system  can  only  be  effectively  and  efficiently  achieved  by 
extending the scope of the current Design Directive.  

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes. 

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 

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pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The  objectives  of  the  present  package  proposals  clearly  can  best,  and,  in  fact,  only  be 
pursued  through  a  Regulation,  amending  the  basic  Community  Design  Regulation  (EC)  No 
6/2002,  and  a  Directive,  extending  the  current  level  of  harmonisation  provided  for  by  the 
current Design Directive 98/71/EC. 

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument og approach?) 

Yes. In particular, the proposed harmonisation in the area of design procedures is limited to 
certain  principal  rules,  leaving  Member  States  free  to  establish  more  specific  rules,  and 
allowing them to adapt those to national specificities and traditions. 

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The two package initiatives will create some cost which are clearly  commensurate with the 
objectives to be achieved. The proposed full liberalisation of the spare parts aftermarket will 
not involve direct cost for manufacturers of motor vehicles. Liberalisation will however cause 
loss of income corresponding to the savings expected for consumers. 
As  for  firms  and  natural  persons  applying  for  design  protection,  the  reformed  design 
protection systems will require some adaptation to new rules, including learning process. 
As  regards  the  EUIPO,  the  proposed  simplification  of  procedures  and  adjustment  of  fees 
could result in loss of revenue. These measures will also involve (minor) implementing costs 
to adapt workflows and IT processes.  
As  far  as  Member  States  and  national  IP  Offices  are  concerned,  the  proposed  further 
harmonisation of rules, in particular in the area of procedures (e.g. establishment of office-
based  invalidity  proceedings)  will  involve  implementing  costs.  However,  these  costs  are 
considered both bearable and proportional. 

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

Yes.  The  proposal  considers  special  circumstances  in  individual  Member  States,  while 
respecting Union law. For example, as to spare parts design protection, it has been taken into 
account  that  in  addition  to  a  significant  number  of  Member  States  some  other  Member 
States  (Germany  and  France)  have  lately  opted  as  well  for  opening  up  their  national 
aftermarkets  through  the  introduction  of  respective  repair  clauses  into  their  national  laws. 
On  the  other  hand,  it  has  been  taken  into  account  that  another  significant  number  of 
Member States still provide for design protection and that the legitimate interests of holders 
of  existing  design  rights  therefore  need  to  be  addressed  appropriately  by  providing  for  a 
transitional period.  

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