Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2022/0391(COD)**

**Brussels, 13 September 2023**
**(OR. en)**

**12714/23**
**ADD 2**

**PI 133**
**COMPET 840**
**MI 718**
**IND 450**
**IA 213**
**CODEC 1543**

**NOTE**

From: Permanent Representatives Committee (Part 1)

To: Council

No. prev. doc.: 12183/23 ADD 2

No. Cion doc.: 15390/22 + ADD 1-5

Subject: 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

         - General approach

For the meeting of the Council (COMPET) on 25 September 2023, delegations will find in the

Annex the Presidency compromise text on the above-mentioned proposal.

Changes compared to the Commission proposal are marked in **bold underlined** or ~~strikethrough.~~

12714/23 ADD 2 BM/AF/ps 1
# COMPET.1 EN

**ANNEX**

2022/0391 (COD)

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**

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article

118, first paragraph, thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee **[1]**,

Having regard to the opinion of the Committee of the Regions **[2]**,

Acting in accordance with the ordinary legislative procedure,

**1** OJ C […], […], p. […]
**2** OJ C […], […], p. […]

12714/23 ADD 2 BM/AF/ps 2
# ANNEX COMPET.1 EN

Whereas:

(1) Council Regulation (EC) No 6/2002 **[3]** created a system of design protection specific to the

European Union which provided for the protection of designs at Union level in parallel to

the protection of designs available at national level in the Member States in accordance with

the respective national design protection laws, harmonised by Directive 98/71/EC of the

European Parliament and of the Council **[4]** .

(2) In line with its Communication on Better Regulation **[5]** and its commitment to review Union

policies regularly, the Commission carried out an extensive evaluation of the design

protection systems in the Union, involving a comprehensive economic and legal assessment,

supported by a series of studies **[6]** .

(3) In its conclusions of ~~11~~ **10** November 2020 on intellectual property policy and the revision

of the industrial design system in the Union **[7]**, 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).

(4) Since the establishment of the Community design system, experience has shown that

individual designers and undertakings from within the Union and from third countries have

accepted the system which has become a successful and viable complement or alternative to

the protection of designs at the national level of the Member States.

**3** Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ L 3,
5.1.2002, p. 1).
**4** Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on
the legal protection of designs (OJ L 289, 28.10.1998, p. 28).
**5** –
Communication from the Commission: Better regulation for better results An EU agenda,
COM(2015) 215 final, p. 4.
**6** Commission Staff Working Document Evaluation of EU legislation on design protection
(SWD(2020) 264 final).
**7** 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).

12714/23 ADD 2 BM/AF/ps 3
# ANNEX COMPET.1 EN

(5) National design protection systems continue nevertheless to be necessary for those

individual designers and undertakings that do not want protection of their designs at Union

level, or that are unable to obtain Union-wide protection while national protection does not

face any obstacles. It should be left to each person seeking design protection to decide

whether the protection is sought only as a national design in one or more Member States, or

only as an EU design, or both.

(6) While the Commission’s evaluation of the Union’s legislation on design protection

confirmed that it is still largely fit for purpose, it announced in its communication ‘Making

the most of the EU’s innovative potential – An intellectual property action plan to support

the EU’s recovery and resilience’ **[8]** of 25 November 2020 that following the successful

reform of the EU trade mark legislation, among others, it will revise the Union legislation on

design protection with a view to improving the accessibility and affordability of design

protection in the Union.

(7) In parallel with the improvements and amendments to the EU design system, national design

laws and practices should be further harmonised and brought into line with the EU design

system to the extent appropriate in order to create, as far as possible, equal conditions for the

registration and protection of designs throughout the Union. This should be complemented

by further efforts of the European Union Intellectual Property Office (EUIPO, ‘the Office’),

the central industrial property offices of the Member States and the Benelux Office for

Intellectual Property to promote convergence of practices and tools in the field of designs

under the cooperation framework laid down in Article 152 of Regulation (EU) 2017/1001 of

the European Parliament and of the Council **[9]** .

**8** Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions on Making
the most of the EU’s innovative potential. An intellectual property action plan to support the
EU’s recovery and resilience (COM/2020/760 final).
**9** Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017
on the European Union trade mark (OJ L 154, 16.6.2017, p. 1).

12714/23 ADD 2 BM/AF/ps 4
# ANNEX COMPET.1 EN

(8) It is necessary to update the terminology of Regulation (EC) No 6/2002 to conform with the

Lisbon Treaty. This entails the replacement of ‘Community design’ by ‘European Union

design’ (‘EU design’). In addition, the terminology needs to be aligned with that of

Regulation (EU) 2017/1001. This involves in particular the replacement of the name ‘Office

for Harmonization in the Internal Market (trade marks and designs)’ by ‘European Union

Intellectual Property Office’.

(9) Since the establishment of the Community design system, the rise of information technology

entailed the advent of new designs which are not embodied in physical products. That calls

for a broadening of the definition of products eligible for design protection to clearly cover

those visualised in a graphic, embodied in a physical object or apparent from the spatial

arrangement of items intended to form ~~, in particular,~~ an interior **or exterior** environment. In

this context, it should also be recognised that ~~the~~ ~~**a**~~ **nimations, such as the** movement ~~,~~ **or the**

transition ~~or animation~~ of **the** features **of a product** can contribute to the visual appearance

of designs, in particular for designs that are not embodied in a physical object.

(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.~~

**(10a)** ~~While otherwise~~ ~~**A**~~ **part from being shown visibly in an application,** 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 ~~,~~ ~~**.**~~ ~~**A**~~ ~~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.

12714/23 ADD 2 BM/AF/ps 5
# ANNEX COMPET.1 EN

(11) The use of 3D printing technologies in different areas of industry is growing, which results

in challenges for design right holders to effectively prevent illegitimate copying of their

protected designs. Therefore, it is appropriate to provide that the creation, downloading,

copying and making available of any medium or software recording the design for the

purpose of reproducing a product that infringes the design, amounts to use of the design

being subject to the right holder’s authorisation.

(12) In order to ensure design protection and combat counterfeiting effectively, and in line with

international obligations of the Union under the framework of the World Trade Organisation

(WTO), in particular Article V to the General Agreement on Tariffs and Trade (GATT),

which provides for freedom of transit, and, as regards generic medicines, the Declaration on

the TRIPS Agreement and Public Health, the holder of a registered EU design should be

entitled to prevent third parties from bringing products, in the course of trade, into the Union

without being released for free circulation there, where such products come from third

countries and without authorisation incorporate a design which is identical or essentially

identical to the registered EU design or where a design is applied to those products which is

identical or essentially identical to the registered EU design.

(13) To that effect, it should be permissible for holders of registered EU designs to prevent entry

of infringing products and their placement in all customs situations, also when such products

are not intended to be placed on the market of the Union. In performing customs controls,

the customs authorities should make use of the powers and procedures laid down in

Regulation (EU) No 608/2013 of the European Parliament and the Council **[10]**, including at

the request of the right holders. In particular, the customs authorities should carry out the

relevant controls on the basis of risk analysis criteria.

**10** Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June
2013 concerning customs enforcement of intellectual property rights and repealing Council
Regulation (EC) No 1383/2003 (OJ L 181, 29.6.2013, p. 15).

12714/23 ADD 2 BM/AF/ps 6
# ANNEX COMPET.1 EN

(14) It is necessary to reconcile the need to ensure the effective enforcement of design rights with

the necessity to avoid hampering the free flow of trade in legitimate products. Therefore, the

entitlement of the holder of the registered EU design should lapse where, during proceedings

before the European Union design court (‘EU design court’) competent to take a substantive

decision on whether the EU design has been infringed, the declarant or the holder of the

products is able to prove that the holder of the registered EU design is not entitled to prohibit

the placing of the products on the market in the country of final destination.

(15) The exclusive rights conferred by a registered EU design should be subject to an appropriate

set of limitations. Apart from private and non-commercial use and acts carried out for

experimental purposes, permissible use should include acts of reproduction for the purpose

of making citations or acts of teaching, referential use in the context of comparative

advertising, and use for the purpose of comment, critique or parody, provided that those acts

are compatible with fair trade practices and do not unduly prejudice the normal exploitation

of the design. Use of a registered EU design by third parties for the purpose of artistic

expression should be considered as being fair as long as it is in accordance with honest

practices in industrial and commercial matters. Furthermore, the rules on the EU design

should be applied in a way that ensures full respect of fundamental rights and freedoms, and

in particular the freedom of expression.

12714/23 ADD 2 BM/AF/ps 7
# ANNEX COMPET.1 EN

(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 **commercial** origin **, typically the producer,**

of the product to be used for the purpose of repair of the complex product.

12714/23 ADD 2 BM/AF/ps 8
# ANNEX COMPET.1 EN

(17) In order to facilitate the marketing of design protected products, in particular by SMEs and

individual designers, and to increase awareness of the design registration regimes existing

both at Union and national level, a commonly accepted notice consisting of the symbol (D)

should be available for use by design right holders and others with their consent.

(18) In view of the insignificant number of EU design applications filed at the central industrial

property offices of the Member States and the Benelux Office for Intellectual Property, and

in order to align the system for EU design applications to the system set out in Regulation

(EU) 2017/1001, it should henceforth only be possible to file an EU design application at the

Office.

(19) Both technological advancement and the experience gained in the application of the current

EU design registration system has revealed the need for improvement of certain aspects of

procedure. Consequently, certain measures should be taken to update, simplify and speed up

procedures where appropriate and to enhance legal certainty and predictability where

required.

(20) To this end, it is of key importance to provide the appropriate means to allow a clear and

precise representation for all designs, which is adaptable to the technical advance for the

visualisation of designs and the needs of the Union industry. In order to ensure that the same

graphic representation can be used for design applications in one or more Member States

and for applications for registered EU designs, the Office, the central industrial property

offices of the Member States and the Benelux Office for Intellectual Property should be

required to cooperate with each other to establish common standards for the formal

requirements that the representation must fulfil.

12714/23 ADD 2 BM/AF/ps 9
# ANNEX COMPET.1 EN

(21) For greater efficiency it is also appropriate to facilitate the filing of multiple applications for

registered EU designs by allowing applicants to combine designs in one application without

being subject to the condition that the products in which the designs are intended to be

incorporated or to which they are intended to be applied all belong to the same class of the

Locarno Classification **[11]** . However, a maximum limit should be provided for to avoid

potential abuse of multiple filings.

(22) For reasons of efficiency and to streamline proceedings, the means of notifications and

communications should be electronic only.

(23) In order to render the access to registered EU design protection more affordable and

transparent, in particular for SMEs and individual designers that tend to file less designs

compared to larger enterprises, it is appropriate to adjust the structure and amount of fees for

the application of registered EU designs.

(24) Given the essential importance of the amounts of fees payable to the Office for the

functioning of the EU design protection system and its complementary relationship as

regards national design systems, and in order to align the legislative approach with

Regulation (EU) 2017/1001, it is appropriate to set those fee amounts directly in Regulation

(EC) No 6/2002 in the form of an annex. The amounts of the fees should be fixed at a level

which ensures both that the revenue they produce is in principle sufficient for the budget of

the Office to be balanced and that there is coexistence and complementarity between the EU

design and the national design systems, also taking into account the size of the market

covered by the EU design and the needs of SMEs.

**11** International Classification for Industrial Designs under the Locarno Agreement (Locarno
Classification), 13 [th] Edition.

12714/23 ADD 2 BM/AF/ps 10
# ANNEX COMPET.1 EN

(25) Regulation (EC) 6/2002 confers powers on the Commission to adopt rules implementing

that Regulation. As a consequence of the entry into force of the Treaty, the powers conferred

upon the Commission under Regulation (EC) No 6/2002 need to be aligned with Articles

290 and 291 of the Treaty on the Functioning of the European Union (‘TFEU’).

(26) In order to ensure an effective, efficient and expeditious examination and registration of EU

design applications by the Office using procedures which are transparent, thorough, fair and

equitable, the power to adopt delegated acts in accordance with Article 290 TFEU should be

delegated to the Commission in respect of specifying the details on the procedure for

amending an application.

(27) In order to ensure that a registered EU design can be declared invalid in an effective and

efficient way 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 procedure for declaring a registered EU design

invalid.

(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.

12714/23 ADD 2 BM/AF/ps 11
# ANNEX COMPET.1 EN

(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.

(30) In order to ensure an effective and efficient organisation of the Boards of Appeal, the power

to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the

Commission in respect of specifying the details on the organisation of the Boards of Appeal

where proceedings relating to EU designs require derogation from the delegated acts

adopted pursuant to Article 168 of Regulation (EU) 2017/1001.

(31) It is of particular importance that the Commission carry out appropriate consultations during

its preparatory work, including at expert level, and that those consultations be conducted in

accordance with the principles laid down in the Interinstitutional Agreement of 13 April

2016 on Better Law-Making **[12]** . In particular, to ensure equal participation in the preparation

of delegated acts, the European Parliament and the Council receive all documents at the

same time as Member States' experts, and their experts systematically have access to

meetings of Commission expert groups dealing with the preparation of delegated acts.

**12** OJ L 123, 12.5.2016, p. 1.

12714/23 ADD 2 BM/AF/ps 12
# ANNEX COMPET.1 EN

(32) In order to ensure uniform conditions for the implementation of Regulation (EC) No 6/2002,

implementing powers should be conferred on the Commission in respect of specifying the

details concerning applications, requests, certificates, claims, regulations, notifications and

any other document under the relevant procedural requirements established by Regulation

(EC) No 6/2002 as well as in respect of maximum rates for costs essential to the proceedings

and actually incurred, details concerning publications in the _European Union Designs_

_Bulletin_ and the _Official Journal of the Office_, the detailed arrangements for exchange of

information between the Office and national authorities, detailed arrangements concerning

translations of supporting documents in written proceedings, and exact types of decisions to

be taken by a single member of the Invalidity Divisions. Those powers should be exercised

in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the

Council **[13]** .

(33) Given the advanced harmonisation of copyright law in the Union, it is appropriate to adjust

the principle of cumulation of protection under Regulation (EC) No 6/2002 and under

copyright law by allowing designs protected by EU design rights to be protected as

copyright works, provided that the requirements of ~~Union c~~ opyright law are met.

**13** Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16
February 2011 laying down the rules and general principles concerning mechanisms for
control by Member States of the Commission’s exercise of implementing powers (OJ L 55,
28.2.2011, p. 13).

12714/23 ADD 2 BM/AF/ps 13
# ANNEX COMPET.1 EN

(34) Regulation (EC) No 6/2002 should therefore be amended accordingly and Regulation (EC)

No 2246/2002 should be repealed. **Commission Regulation (EC) No 2245/2002** **[14]** **should**

**be amended by the Commission in order to align it with the amendments introduced**

**by this Regulation to Regulation (EC) No 6/2002 regarding the terminology of the**

**Treaty of Lisbon and of Regulation (EU) 2017/1001 of the European Parliament and of**

**the Council, the reference to rules concerning fees payable to the Office, the duration**

**of time limits and the representation before the Office, as well as the inclusion of a**

**number of rules initially contained in that Commission Regulation and in Council**

**Regulation (EC) 6/2002. The repeal of the empowerment that served as the basis for**

**the adoption and revision of Commission Regulation (EC) 2245/2002 should be without**

**prejudice to the maintenance of that Regulation until that act is repealed.**

(35) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States

but can rather, by reason of the autonomous nature of the EU design system being

independent from national systems, be better achieved at Union level, the Union may adopt

measures, in accordance with the principle of subsidiarity as set out in Article 5 of the

Treaty on European Union. In accordance with the principle of proportionality as set out in

that Article, this Regulation does not go beyond what is necessary in order to achieve those

objectives.

(36) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of

Regulation (EU) 2018/1725 of the European Parliament and of the Council **[15]** and delivered

an opinion on...,

HAVE ADOPTED THIS REGULATION:

**14** **Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council**
**Regulation (EC) No 6/2002 on Community designs (OJ L 341, 17.12.2002, p. 28).**
**15** Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October
2018 on the protection of natural persons with regard to the processing of personal data by
the Union institutions, bodies, offices and agencies and on the free movement of such data,
and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295,
21.11.2018, p. 39).

12714/23 ADD 2 BM/AF/ps 14
# ANNEX COMPET.1 EN

_Article 1_

Regulation (EC) No 6/2002 is amended as follows:

(1) the title is replaced by the following:

‘Council Regulation (EC) No 6/2002 of 12 December 2001 on European Union designs’;

(2) in Article 1, paragraph 1 is replaced by the following:

‘1. A design which complies with the conditions contained in this Regulation is hereinafter

referred to as a “European Union design” (‘EU design’).’;

(3) throughout the articles, the words ‘Community design’ are replaced by ‘EU design’ and

any necessary grammatical changes are made;

(4) throughout the Regulation, the term ‘Community design court’ is replaced by ~~“~~ **‘** EU design

court’ and any necessary grammatical changes are made;

(5) in Article 1(3), Article 7(1), Article 11(1), Article 22(1), Article 27(1), Article 96(1),

Article 98(1), Article 98(5), Article 106a(1), Article 106a(2), Article 106d(1), Article

106d(2), and Article 110a(1), the words ‘the Community’ are replaced by ‘the Union’ and

any necessary grammatical changes are made;

12714/23 ADD 2 BM/AF/ps 15
# ANNEX COMPET.1 EN

(6) Article 2 is replaced by the following:

_‘Article 2_

**European Union Intellectual Property Office**

The European Union Intellectual Property Office (‘the Office’), established by Regulation (EU)

2017/1001 of the European Parliament and of the Council*, shall carry out the tasks entrusted to it

by this Regulation.

- Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on

the European Union trade mark (OJ L 154, 16.6.2017, p.1).’;

(7) the following Article is inserted:

_‘Article 2a_

**Capacity to act**

For the purpose of implementing this Regulation, companies or firms and other legal bodies shall be

regarded as legal persons if, under the terms of the law governing them, they have the capacity in

their own name to have rights and obligations of all kinds, to make contracts or accomplish other

legal acts, and to sue and be sued.’;

12714/23 ADD 2 BM/AF/ps 16
# ANNEX COMPET.1 EN

(8) Article 3 is replaced by the following:

_‘Article 3_

**Definitions**

For the purposes of this Regulation, the following definitions apply:

(1) ‘design’ means the appearance of the whole or a part of a product resulting from the

features, in particular, the lines, contours, colours, shape, texture, materials of the

product itself and/or its decoration, including the movement, transition or any other

sort of animation of those features;

(2) ‘product’ means any industrial or handicraft item other than computer programs,

regardless of whether it is embodied in a physical object or materialises in a ~~digital~~

**non-physical** form, including:

(a) packaging, sets of articles, ~~get-up, s~~ patial arrangement of items intended to

form ~~, in particular,~~ an interior **or exterior** environment, and parts intended to

be assembled into a complex product;

(b) graphic works or symbols, logos, surface patterns, typographic typefaces, and

graphical user interfaces;

(3) ‘complex product’ means a product that is composed of multiple components which

can be replaced, permitting disassembly and reassembly of the product.’;

(9) in Article 4, paragraph 1 is replaced by the following:

‘1. A design shall be protected by an EU design, if it is new and has individual character.’;

12714/23 ADD 2 BM/AF/ps 17
# ANNEX COMPET.1 EN

(10) in Article 7(2), the introductory words are replaced by the following:

‘2. A disclosure shall not be taken into consideration for the purpose of applying Articles 5 and 6 if

the disclosed design, which is identical with or does not differ in its overall impression from the

design for which protection is claimed under a registered EU design, has been made available to the

public:’;

(11) Article 12 is replaced by the following:

_‘Article 12_

**Commencement and term of protection of the registered EU design**

1. Protection by a registered EU design ~~of a design which meets the requirements set out in~~

~~Section 1 s~~ hall arise with registration by the Office.

2. A registered EU design shall be registered for a period of five years calculated from the

date of filing of the application for registration. The right holder may ~~have the term of~~

~~protection r~~ ene ~~wed~~ **the registration, in accordance with Article 50d,** for one or more

periods of 5 years each, up to a total term of 25 years from the date of filing of the application

for registration.’;

(12) Article 13 is deleted;

12714/23 ADD 2 BM/AF/ps 18
# ANNEX COMPET.1 EN

(13) Articles 15 and 16 are replaced by the following:

_‘Article 15_

**Claims relating to the entitlement to an EU design**

1. If an unregistered EU design is disclosed or claimed by a person who is not entitled to it

under Article 14 or if a registered EU design has been applied for or registered in the name of

such a person, the person entitled to it under that provision may, without prejudice to any

other remedy which may be open to him, claim before the competent court or authority of the

Member State concerned to become recognised as the legitimate holder of the EU design.

2. Where a person is jointly entitled to an EU design, that person may, in accordance with

paragraph 1, claim to become recognised as joint holder.

3. Legal proceedings under paragraphs 1 or 2 shall be barred three years after the date of

publication of a registered EU design or the date of disclosure of an unregistered EU design.

This provision shall not apply if the person who is not entitled to the EU design was acting in

bad faith at the time when such design was applied for, disclosed or acquired.

4. The person entitled to an EU design under Article 14 may submit a request, pursuant to

paragraph 1 of this Article, for a change of ownership to the Office, together with a final

decision of the competent court or authority of the Member State concerned.

5. In the case of a registered EU design, the following shall be entered in the Register of EU

designs referred to in Article 72 (‘the Register’):

(a) an indication that legal proceedings under paragraph 1 have been instituted before

the competent court or authority of the Member State concerned;

12714/23 ADD 2 BM/AF/ps 19
# ANNEX COMPET.1 EN

(b) the date and particulars of the final decision of the competent court or authority of

the Member State concerned or any other termination of the proceedings;

(c) any change in the ownership of the registered EU design resulting from the final

decision of the competent court or authority of the Member State concerned.

_Article 16_

**Effects of a judgment on entitlement to a registered EU design**

1. Where there is a complete change of ownership of a registered EU design as a result of

legal proceedings under Article 15(1), licences and other rights shall lapse upon the entering

in the Register of the new holder of the registered EU design.

2. If, before the institution of the legal proceedings under Article 15(1) has been registered,

the holder or a licensee of the registered EU design has exploited the design within the Union

or made serious and effective preparations to do so, that holder or licensee may

continue such exploitation provided that they request, within a period of 3 months of the date

of the entering in the Register of the new holder, a non-exclusive licence from the new holder

whose name is entered in the Register. The licence shall be granted for a reasonable period

and upon reasonable terms.

3. Paragraph 2 shall not apply if the holder of the registered EU design or the licensee was

acting in bad faith at the time when that holder or licensee began to exploit the design or to

make preparations to do so.’;

(14) in Article 18, the following sentence is added:

‘That right includes the right to enter a change of the name of the designer or of the team in the

Register.’;

12714/23 ADD 2 BM/AF/ps 20
# ANNEX COMPET.1 EN

(15) the following Article 18a is inserted after the heading of Section 4:

_‘Article 18a_

**Object of protection**

Protection shall be conferred for those features of the appearance of a registered EU design

which are shown visibly in the application for registration.’;

(16) Articles 19 to 21 are replaced by the following:

_‘Article 19_

**Rights conferred by the EU design**

1. A registered EU design shall confer on its holder the exclusive right to use it and to prevent

any third party not having the consent of the holder from using it.

2. The following, in particular, may be prohibited under paragraph 1:

(a) making, offering, putting on the market, or using a product in which the design is

incorporated or to which the design is applied;

(b) importing or exporting a product referred to in point (a);

(c) stocking a product referred to in point (a) for the purposes referred to in points (a)

and (b);

(d) creating, downloading, copying and sharing or distributing to others any medium or

software recording the design for the purpose of enabling a product referred to in

point (a) to be made.

12714/23 ADD 2 BM/AF/ps 21
# ANNEX COMPET.1 EN

3. ~~By way of derogation from Article 10(1), t~~ **T** he holder of a registered EU design shall be

entitled to prevent all third parties from bringing products, in the course of trade, from third

countries into the Union, that are not released for free circulation in the Union, where the

design is identically incorporated in or applied to those products, or the design cannot be

distinguished in its essential aspects from such products, and an authorisation has not been

given.

The right referred to in the first subparagraph shall lapse, if, during proceedings to determine

whether the EU design has been infringed, initiated in accordance with Regulation (EU) No

608/2013 of the European Parliament and of the Council*, evidence is provided by the

declarant or the holder of the products that the holder of the registered EU design is not

entitled to prohibit the placing of the products on the market in the country of final

destination.

4. The holder of an unregistered EU design shall be entitled to prevent acts referred to in

paragraphs 1 and 2 only if the contested use results from copying that design.

The contested use referred above shall not be deemed to result from copying the unregistered

EU design if it results from an independent work of creation by a designer who may be

reasonably thought not to be familiar with the design made available to the public by the

holder.

5. Paragraph 4 shall also apply to a registered EU design subject to deferment of publication

as long as the relevant entries in the Register and the file have not been made available to the

public in accordance with Article 50(4).

12714/23 ADD 2 BM/AF/ps 22
# ANNEX COMPET.1 EN

_Article 20_

**Limitation of the rights conferred by an EU design**

1. The rights conferred by an EU design shall not be exercised in respect of:

(a) acts carried out privately and for non-commercial purposes;

(b) acts carried out for experimental purposes;

(c) acts of reproduction for the purpose of making citations or of teaching;

(d) acts carried out for the purpose of identifying or referring to a product as that of the

design right holder;

(e) acts carried out for the purpose of comment, critique or parody;

(f) the equipment on ships and aircraft that are registered in a third country and that

temporarily enter the territory of the Union;

(g) the importation into the Union of spare parts and accessories for the purpose of

repairing ships and aircraft referred to in point (f);

(h) the execution of repairs on ships and aircraft referred to in point (f).

2. Paragraph 1, points (c), (d) and (e), shall only apply where the acts are compatible with fair

trade practices and do not unduly prejudice the normal exploitation of the design, and in the

case of point (c), where mention is made of the source of the product in which the design is

incorporated or to which the design is applied.

12714/23 ADD 2 BM/AF/ps 23
# ANNEX COMPET.1 EN

_Article 20a_

**Repair clause**

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.

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 **commercial** 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.

_Article 21_

**Exhaustion of rights**

The rights conferred by an EU design shall not extend to acts relating to a product in which a

design included within the scope of protection of the EU design is incorporated or to which it

is applied, when the product has been put on the market in the European Economic Area

(EEA) by the holder of the EU design or with his consent.’;

   - Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June

2013 concerning customs enforcement of intellectual property rights and repealing Council

Regulation (EC) No 1383/2003 (OJ L 181, 29.6.2013, p. 15).

12714/23 ADD 2 BM/AF/ps 24
# ANNEX COMPET.1 EN

(17) in Article 24, paragraph 2 is replaced by the following:

‘2. An EU design may be declared invalid even after the EU design has lapsed or has been

surrendered, if the applicant shows a legitimate interest in obtaining a decision on the merits.’;

(18) Article 25 is replaced by the following:

_‘Article 25_

**Grounds for invalidity**

1. An EU design may be declared invalid only in the following situations:

(a) the EU design does not correspond to the definition under Article 3, point (1);

(b) the EU design does not fulfil the requirements laid down in Articles 4 to 9;

(c) by virtue of a decision of the competent court or authority, the right holder is not

entitled to the EU design under Article 14;

(d) the EU design is in conflict with a prior design which has been made available to the

publi ~~c, and which is protected from a date~~ prior to **or after** the date of filing of the

application, or if priority is claimed, the date of priority of the EU design **, and which**

**is protected from a date prior to the said date** :

(i) by a registered EU design or an application for such a design subject to its

registration,

(ii) by a registered design right of a Member State, or by an application for such a right

subject to its registration, or

12714/23 ADD 2 BM/AF/ps 25
# ANNEX COMPET.1 EN

(iii) by a design right registered under the Geneva Act of the Hague Agreement

Concerning the International Registration of Industrial Designs of 1999 (‘the Geneva

Act’), which has effect in the Union, or by an application for such a right subject to its

registration;

(e) a distinctive sign is used in a subsequent design, and Union law or the law of the

Member State governing that sign confers on the right holder of the sign the right to

prohibit such use;

(f) the design constitutes an unauthorised use of a work protected under the copyright

law of a Member State;

(g) the design constitutes an improper use of any of the items listed in Article 6ter of the

Paris Convention for the Protection of Industrial Property ( ~~’~~ **‘** the Paris

Convention’), or of badges, emblems and escutcheons other than those covered by

that Article and which are of particular public interest in a Member State **, and**

**without the consent of the competent authorities to the registration having been**

**given** .

2. The grounds for invalidity provided for in paragraph 1, points (a) and (b), may be invoked

by the following:

(a) any natural or legal person;

(b) any group or body set up for the purpose of representing the interests of

manufacturers, producers, suppliers of services, traders or consumers if that group or

body has the capacity to sue and be sued in its own name under the terms of the law

governing it.

3. The ground for invalidity provided for in paragraph 1, point (c), may be invoked solely by

the person who is entitled to the EU design under Article 14.

12714/23 ADD 2 BM/AF/ps 26
# ANNEX COMPET.1 EN

4. The grounds for invalidity provided for in paragraph 1, points (d), (e) and (f), may be

invoked solely by the following:

(a) the applicant for or the holder of the earlier right;

(b) the persons who are entitled under Union legislation or the law of the Member State

concerned to exercise the rights in question;

(c) a licensee authorised by a proprietor of ~~a trade mark or a holder of a design right~~ **the**

**earlier right** .

5. The ground for invalidity provided for in paragraph 1, point (g), may be invoked solely by

the person or entity concerned by the improper use.

6. By way of derogation from paragraphs 4 and 5, Member States may provide that the

grounds provided for in paragraph 1, points (d) and (g) may also be invoked by the

appropriate authority of the Member State in question on its own initiative.

7. An EU design may not be declared invalid where the applicant for or holder of one of the

rights referred to in paragraph 1, points (d) to ( ~~g~~ **f** ), has consented expressly to the registration

of the EU design before submitting the application for a declaration of invalidity or the

counterclaim.

8. Where the applicant for or a holder of one of the rights referred to in paragraph 1, points (d)

to (g), has previously applied for a declaration that an EU design is invalid or made a

counterclaim in infringement proceedings, they may not submit a new application for a

declaration of invalidity or lodge a new counterclaim on the basis of any of the other rights

referred to in those points, which could have been invoked in support of the first application

or counterclaim.’;

(19) in Article 26, paragraph 1 is replaced by the following:

‘1. An EU design which is declared invalid shall be deemed not to have had the effects

specified in this Regulation as from the outset.’;

12714/23 ADD 2 BM/AF/ps 27
# ANNEX COMPET.1 EN

(20) the following heading is inserted after Article 26:

‘Section 6

**Notice of registration’**

(21) the following Article 26a is inserted after the heading of Section 6:

_‘Article 26a_

**Registration symbol**

The holder of a registered EU design may inform the public that the design is registered by

displaying on the product in which the design is incorporated or to which it is applied the

letter D enclosed within a circle. Such design notice may be accompanied by the registration

number of the design or hyperlinked to the entry of the design in the Register.’;

(22) Article 28 is replaced by the following:

_‘Article 28_

**Transfer of the registered EU design**

1. An assignment of a registered EU design shall be made in writing and shall be signed by

the parties to the contract, except when it is the result of a judgment.

An assignment of a registered EU design that does not comply with the requirements set out

in the first subparagraph shall be void.

2. On request of one of the parties, a transfer of a registered EU design shall be entered in the

Register and published.

12714/23 ADD 2 BM/AF/ps 28
# ANNEX COMPET.1 EN

3. A request for registration of a transfer in the Register shall contain information identifying

the registered EU design, the new holder and, where applicable, the representative of the new

holder. It shall also contain documents duly establishing the transfer in accordance with

paragraph 1.

4. Where the conditions for the registration of a transfer, as laid down in paragraph 1 or in the

implementing acts referred to in Article 28a, are not fulfilled, the Office shall notify the

applicant of the deficiencies. If the deficiencies are not remedied within the time limit

specified by the Office, it shall reject the application for registration of the transfer.

5. A single application for registration of a transfer may be submitted for two or more

registered EU designs, provided that the registered holder and the successor in title are the

same for all these registered EU designs.

6. As long as the transfer has not been entered in the Register, the successor in title may not

invoke the rights arising from the registration of the registered EU design.

7. Where there are time limits to be observed vis-à-vis the Office, the successor in title may

make the corresponding statements to the Office once the request for registration of the

transfer has been received by the Office.

8. All documents which require notification to the holder of the registered EU design in

accordance with Article 66 shall be addressed to the person registered as holder in the

Register.’;

(23) the following Article 28a is inserted:

_‘Article 28a_

**Conferral of implementing powers regarding transfer**

The Commission shall adopt implementing acts specifying:

12714/23 ADD 2 BM/AF/ps 29
# ANNEX COMPET.1 EN

(a) the details to be contained in the request for registration of a transfer referred to in

Art 28(3);

(b) the kind of documentation required to establish a transfer as referred to in Article

28(3), taking account of the agreements given by the registered holder and the

successor in title.

Those implementing acts shall be adopted in accordance with the examination procedure

referred to in Article 109(2).’;

(24) Articles 31 to 34 are replaced by the following:

_**‘**_ _Article 31_

**Insolvency proceedings**

1. The only insolvency proceedings in which an EU design may be involved are those opened

in the Member State within the territory of which the debtor has his centre of main interests.

2. For insurance undertakings as defined in Article 13, point (1), of Directive 2009/138/EC of

the European Parliament and of the Council* and credit institutions as defined in Article 4(1)

of Regulation (EU) No 575/2013 of the European Parliament and of the Council**, the centre

of main interests referred to in paragraph 1 shall be the Member State where the undertaking

or institution has been authorised.

3. In the case of joint holdership of an EU design, paragraph 1 shall apply to the share of the

joint holder.

4. Where an EU design is involved in insolvency proceedings, an entry to this effect shall, on

request of the competent national authority, be made in the Register and published.

12714/23 ADD 2 BM/AF/ps 30
# ANNEX COMPET.1 EN

_Article 32_

**Licensing**

1. An EU design may be licensed for the whole or part of the Union. A licence may be

exclusive or non-exclusive.

2. The holder may invoke the rights conferred by the EU design against a licensee who

contravenes any provision in the licensing contract with regard to:

(a) the duration of the licence;

(b) the form in which the design may be used;

(c) the range of products for which the licence is granted;

(d) the quality of the products manufactured by the licensee under the licence.

3. If not stated otherwise in the licensing contract, the licensee may bring proceedings for

infringement of an EU design only if its holder consents thereto. However, the holder of an

exclusive licence may bring such proceedings if the holder of the EU design, after a formal

notice, does not bring infringement proceedings within an appropriate period.

4. A licensee shall, for the purpose of obtaining compensation for damage suffered, be entitled

to intervene in infringement proceedings brought by the holder of the EU design.

12714/23 ADD 2 BM/AF/ps 31
# ANNEX COMPET.1 EN

_Article 32a_

**Procedure for entering licences and other rights in the Register**

1. Article 28(2) and (3), the rules adopted pursuant to Article 28a, and Article 28(6) shall

apply mutatis mutandis to the registration of a right in rem or transfer of a right in rem

referred to in Article 29, the levy of execution referred to in Article 30, the involvement in

insolvency proceedings referred to in Article 31, as well as to the registration of a licence or

transfer of a licence as referred to in Article 32. However, the requirement concerning

documentary evidence set out in Article 28(3) shall not apply where the request is made by

the holder of the EU design.

2. The application for registration of the rights referred to in paragraph 1, where applicable,

shall not be deemed to have been filed until the required fee has been paid.

3. The application for registration of a licence may contain a request to record a licence in the

Register as one or more of the following:

(a) an exclusive licence;

(b) a sub-licence in the event that the licence is granted by a licensee whose licence is

recorded in the Register;

(c) a licence limited to a specific range of products;

(d) a licence limited to part of the Union;

(e) a temporary licence

Where a request is made to record the licence as a licence referred to in the first subparagraph,

point (c), (d), or (e), the application for registration shall indicate the specific product range,

the part of the Union or the time period for which the licence is granted.

12714/23 ADD 2 BM/AF/ps 32
# ANNEX COMPET.1 EN

4. Where the conditions for registration of licences and other rights set out in this Regulation

are not fulfilled, the Office shall notify the applicant of the deficiency. If the deficiency is not

remedied within a time limit specified by the Office, it shall reject the application for

registration.

_Article 33_

**Effects vis-à-vis third parties**

1. Legal acts referred to in Articles 28, 29 and 32 concerning an EU design shall only have

effect vis-à-vis third parties in all the Member States after entry in the Register. Nevertheless,

such an act, before it is so entered, shall have effect vis-à-vis third parties who have acquired

rights in the registered EU design after the date of that act but who knew of the act at the date

on which the rights were acquired.

2. Paragraph 1 shall not apply to a person who acquires the registered EU design or a right

concerning the registered EU design by way of transfer of the whole of the undertaking or by

any other universal succession.

3. The effects vis-à-vis third parties of the legal acts referred to in Article 30 shall be

governed by the law of the Member State determined in accordance with Article 27.

4. The effects vis-à-vis third parties of bankruptcy or similar proceedings shall be governed by

the law of the Member State in which such proceedings are first brought within the meaning

of national law or of conventions applicable in this field.

12714/23 ADD 2 BM/AF/ps 33
# ANNEX COMPET.1 EN

_Article 33a_

**Procedure for cancelling or modifying registrations of licences and other rights**

1. A registration effected under Article 32a(1) shall be cancelled or modified upon application

by one of the parties concerned.

2. The application shall contain the registration number of the registered EU design, or in the

case of a multiple registration, the number of each design, and the particulars of the right for

which registration is requested to be cancelled or modified.

3. The application shall be accompanied by documents showing that the registered right no

longer exists or that the licensee or the holder of another right consents to the cancellation or

modification of the registration.

4. Where the requirements for cancellation or modification of the registration are not satisfied,

the Office shall notify the applicant of the deficiencies. If the deficiencies are not remedied

within the time limit specified by the Office, it shall reject the application for cancellation or

modification of the registration.

12714/23 ADD 2 BM/AF/ps 34
# ANNEX COMPET.1 EN

_Article 34_

**The application for a registered EU design as an object of property**

Articles 27 to 33a shall apply to applications for registered EU designs. Where the effect of

one of those provisions is conditional upon an entry in the Register, that formality shall be

performed upon entry of the registered EU design in the Register.’;

    - Directive 2009/138/EC of the European Parliament and of the Council of 25 November

2009 on the taking-up and pursuit of the business of Insurance and Reinsurance

(Solvency II) (OJ L 335 17.12.2009, p. 1).

** Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26

June 2013 on prudential requirements for credit institutions and amending

Regulation (EU) No 648/2012 (OJ L 176 27.6.2013, p. 1).

12714/23 ADD 2 BM/AF/ps 35
# ANNEX COMPET.1 EN

(25) Article 35 is replaced by the following:

_‘Article 35_

**Filing of applications**

1. An application for a registered EU design shall be filed at the Office.

2. The Office shall issue to the applicant, without delay, a receipt which shall include at least

the file number, a representation, description or other identification of the design, the nature

and the number of documents and the date of their receipt. In the case of a multiple

application, the receipt issued by the Office shall specify the first design and the number of

designs filed.’;

(26) Article 36 is amended as follows:

(a) paragraphs 1 to 4 are replaced by the following:

‘1. An application for a registered EU design shall contain:

(a) a request for registration;

(b) information identifying the applicant;

(c) a **sufficiently clear** representation of the design **,** ~~suitable for reproduction,~~

permittin ~~g all the details of the subject matter for which protection is sought to~~

~~be clearly distinguished and permitting publication~~ **the subject matter for**

**which protection is sought to be determined** .

2. The application shall further contain an indication of the products in which the design

is intended to be incorporated or to which it is intended to be applied.

12714/23 ADD 2 BM/AF/ps 36
# ANNEX COMPET.1 EN

3. In addition, the application may contain:

(a) a description explaining the representation;

(b) a request for deferment of publication of the registration in accordance with

Article 50;

(c) information identifying the representative if the applicant has appointed one;

(d) the classification of the products in which the design is intended to be

incorporated or to which it is intended to be applied according to class and

subclass of the Locarno Agreement Establishing an International Classification

for Industrial Designs (‘the Locarno Classification’), as amended and in force

at the date of filing of the design;

(e) the citation of the designer or of the team of designers or a statement under the

applicant’s responsibility that the designer or the team of designers has waived

the right to be cited.

4. The application shall be subject to the payment of the application fee. Where a

request for deferment under paragraph 3, point (b), is filed, it shall be subject to an

additional fee for deferment of publication.’;

12714/23 ADD 2 BM/AF/ps 37
# ANNEX COMPET.1 EN

(b) paragraph 5 is replaced by the following:

‘5. In addition to the requirements referred to in paragraphs 1 to 4, an application for a

registered EU design shall comply with the formal requirements laid down in this

Regulation and in the implementing acts adopted pursuant to it. To the extent that those

requirements relate to the design representation and the means thereof as referred to in

paragraph 1, point (c), the Executive Director shall determine the manner of numbering

different views in the event of representation by static views, the formats and size of the

electronic file as well as any other relevant technical specification. If those requirements

provide for the identification of a subject matter for which no protection is sought by

way of certain types of visual disclaimers or for the filing of certain specific types of

views, the Executive Director may determine additional types of visual disclaimers and

specific types of views.’;

(27) the following Article 36a is inserted:

_‘Article 36a_

**Conferral of implementing powers regarding the application**

The Commission shall adopt implementing acts specifying the details to be contained in the

application for a registered EU design. Those implementing acts shall be adopted in

accordance with the examination procedure referred to in Article 109(2).’;

(28) Article 37 is amended as follows:

(a) paragraphs 1 and 2 are replaced by the following:

1. A maximum number of 50 designs may be combined in one multiple application for

registered EU designs. Each design contained in a multiple application shall be

numbered by the Office in accordance with a system determined by the Executive

Director.

12714/23 ADD 2 BM/AF/ps 38
# ANNEX COMPET.1 EN

2. In addition to the fees referred to in Article 36(4), the multiple application shall be

subject to payment of an application fee in respect of each additional design included in

the multiple application and, in case the application contains a request for deferment of

publication, a fee for deferment of publication in respect of each design included in the

multiple application for which deferment is requested.’;

(b) paragraph 3 is replaced by the following:

‘3. The multiple application shall comply with the conditions of representation laid

down in the implementing acts adopted pursuant to Article 37a.’;

(c) paragraph 4 is replaced by the following:

‘4. Each of the designs contained in a multiple application or a registration based on

such application may be dealt with separately from the others. Such a design may,

separately from the others, be enforced, be licensed, be the subject of a right in rem, a

levy of execution or insolvency proceedings, be surrendered, renewed or assigned, be

the subject of deferred publication or be declared invalid.’;

12714/23 ADD 2 BM/AF/ps 39
# ANNEX COMPET.1 EN

(29) the following Article 37a is inserted:

_‘Article 37a_

**Conferral of implementing powers regarding multiple applications**

The Commission shall adopt implementing acts specifying the details to be contained in the

multiple application. Those implementing acts shall be adopted in accordance with the

examination procedure referred to in Article 109(2).’;

(30) Articles 38 and 39 are replaced by the following:

_‘Article 38_

**Date of filing**

The date of filing of an application for a registered EU design shall be the date on which

documents containing the information specified in Article 36(1) are filed with the Office by

the applicant, subject to the payment of the application fees referred to in Articles 36(4) and

37(2) within one month of filing those documents.

_Article 39_

**Equivalence of Union filing with national filing**

An application for a registered EU design which has been accorded a date of filing shall, in

the Member States, be equivalent to a regular national filing, including where appropriate the

priority claimed for the EU design application.’;

12714/23 ADD 2 BM/AF/ps 40
# ANNEX COMPET.1 EN

(31) Articles 40, 41 and 42 are replaced by the following:

_‘Article 40_

**Classification and product indications**

1. Products in which an EU design is intended to be incorporated or to which it is intended to

be applied shall be classified in accordance with the Locarno Classification, as amended and

in force at the date of filing of the design.

2. The product indication shall identify clearly and precisely the nature of the products and

shall enable each product to be classified in only one class and subclass of the Locarno

Classification, if possible using the harmonised database of product indications made

available by the Office. The product indication shall accord with the representation of the

design.

3. The products shall be grouped according to the classes of the Locarno Classification, each

group being preceded by the number of the class to which that group of products belongs and

presented in the order of the classes and subclasses under that classification.

4. When the applicant uses product indications which are not contained in the database

referred to in paragraph 2, or which do not accord with the representation of the design, the

Office may propose product indications from that database. The Office may proceed with the

examination based on the proposed product indications when the applicant does not reply

within the time limit specified by the Office.

12714/23 ADD 2 BM/AF/ps 41
# ANNEX COMPET.1 EN

_Article 41_

**Right of priority**

1. A person who has duly filed an application for a design right or for a utility model in or for

any State party to the Paris Convention, or to the Agreement establishing the World Trade

Organisation, or his successors in title, shall enjoy, for the purpose of filing an application for

a registered EU design in respect of the same design or utility model, a right of priority during

a period of 6 months from the date of filing of the first application.

2. Every filing that under the national law of the State where it was made or under bilateral or

multilateral agreements is sufficient to establish the date on which the application was filed,

whatever may be the outcome of the application, shall be recognised as giving rise to a right

of priority.

3. A subsequent application for a design which was the subject of a previous first application,

and which is filed in or in respect of the same State, shall be considered as the first application

for the purpose of determining priority, provided that, at the date of the filing of the

subsequent application, the previous application has been withdrawn, abandoned or refused

without being open to public inspection and without leaving any rights outstanding, and has

not served as a basis for claiming a right of priority. The previous application may not

thereafter serve as a basis for claiming a right of priority.

4. If the first filing has been made in a State which is not a party to the Paris Convention, or to

the Agreement establishing the World Trade Organisation, paragraphs 1 to 3 shall apply only

in so far as that State, according to published findings, grants, on the basis of the first filing

made at the Office and subject to conditions equivalent to those laid down in this Regulation,

a right of priority having equivalent effect. The Executive Director shall, where necessary,

request the Commission to consider enquiring as to whether the State referred to in the first

sentence accords such reciprocal treatment. If the Commission determines that reciprocal

treatment is accorded, it shall publish a communication to that effect in the _Official Journal of_

_the European Union_ .

12714/23 ADD 2 BM/AF/ps 42
# ANNEX COMPET.1 EN

5. The right of priority referred to in paragraph 4 shall apply from the date of publication in

the _Official Journal of the European Union_ of the communication determining that reciprocal

treatment is accorded, unless the communication states an earlier date from which it is

applicable. It shall cease to apply from the date of publication in the _Official Journal of the_

_European Union_ of a communication of the Commission to the effect that reciprocal

treatment is no longer accorded, unless the communication states an earlier date from which it

is applicable.

6. Communications referred to in paragraphs 4 and 5 shall also be published in the Official

Journal of the Office.

_Article 42_

**Claiming priority**

1. An applicant for a registered EU design desiring to take advantage of the priority of a

previous application shall file a declaration of priority either together with the application or

within two months of the date of filing. Such declaration of priority shall include the date and

country of the previous application. The file number of the previous application and the

documentation in support of the priority claim shall be filed within three months of the date of

filing of the declaration of priority.

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.’;

12714/23 ADD 2 BM/AF/ps 43
# ANNEX COMPET.1 EN

(32) the following Article 42a is inserted:

_‘Article 42a_

**Conferral of implementing powers regarding the claim of priority**

The Commission shall adopt implementing acts specifying the kind of documentation to be

filed for claiming the priority of a previous application in accordance with Article 42(1).

Those implementing acts shall be adopted in accordance with the examination procedure

referred to in Article 109(2).’;

(33) Article 43 is replaced by the following:

_‘Article 43_

**Effect of priority right**

The right of priority shall have the effect that the date of priority shall count as the date of the

filing of the application for a registered EU design for the purposes of Articles 5, 6, 7 and 22,

Article 25(1), points (d), (e) and (f), and Article 50(1).’;

(34) Article 44 is replaced by the following:

_‘Article 44_

**Exhibition priority**

1. If an applicant for a registered EU design has disclosed products in which the design is

incorporated, or to which it is applied, at an official or officially recognised international

exhibition falling within the 1928 Convention on International Exhibitions as last revised on

30 November 1972, the applicant may, if the application is filed within a period of 6 months

from the date of the first disclosure of such products, claim a right of priority from that date.

12714/23 ADD 2 BM/AF/ps 44
# ANNEX COMPET.1 EN

2. An applicant who wishes to claim priority pursuant to paragraph 1 shall file a declaration of

priority either together with the application or within 2 months of the date of filing. The

applicant shall, within 3 months of the declaration of priority, file evidence that the products

in which the design is incorporated, or to which it is applied, have been disclosed within the

meaning of paragraph 1.

3. An exhibition priority granted in a Member State or in a third country does not extend the

period of priority laid down in Article 41.’;

(35) the following Article 44a is inserted:

_‘Article 44a_

**Conferral of implementing powers**

The Commission shall adopt implementing acts specifying the type and details of evidence to

be filed for claiming an exhibition priority in accordance with Article 44(2). Those

implementing acts shall be adopted in accordance with the examination procedure referred to

in Article 109(2).’;

(36) the heading of Title V is replaced by the following:

‘TITLE V

**REGISTRATION PROCEDURE, RENEWAL AND ALTERATION** ’

12714/23 ADD 2 BM/AF/ps 45
# ANNEX COMPET.1 EN

(37) Article 45 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘1. The Office shall examine whether the application for a registered EU design

complies with the requirements for the accordance of a date of filing laid down in

Article 38.’.

(b) paragraphs 2 and 3 are replaced by the following:

‘2. The Office shall examine whether:

(a) the application for a registered EU design complies with the conditions and

requirements referred to in Article 36 **(2), (3) and** (5) and, in the case of a

multiple application, in Article 37(3);

(b) where relevant, the additional fee for deferment of publication pursuant to

Article 36(4) has been paid within the prescribed period;

(c) where relevant, the additional ~~application fees~~ **fee for deferment of**

**publication in respect of each design included in** ~~for a~~ multiple application

pursuant to Article 37(2) ~~have~~ **has** been paid within the prescribed period.

3. Where the application for a registered EU design does not satisfy the requirements

referred to in paragraph 1 **or 2**, the Office shall request the applicant to remedy the

deficiencies or the default on payment within 2 months of the notification of that

request.

4. If the applicant does not comply with the request with regard to the requirements

referred to in paragraph 1, the application shall not be dealt with as an application for a

registered EU design. If the applicant complies with the request with regard to those

requirements, the Office shall accord as the date of filing of the application the date on

which the deficiencies or the default on payment are remedied.

12714/23 ADD 2 BM/AF/ps 46
# ANNEX COMPET.1 EN

5. If the applicant does not comply with the request with regard to the requirements

referred to in paragraph 2, points (a) and (b), the Office shall refuse the application.

6. If the applicant does not comply with the request with regard to the requirements

referred to in paragraph 2, point (c), the application shall ~~not be dealt with as an~~

~~application for a registered EU design~~ **be refused** in respect of the additional designs

unless it is clear which designs the amount paid is intended to cover. In the absence of

other criteria to determine which designs are intended to be covered, the Office shall

treat the designs in the numerical order in which they are represented in accordance with

the rules adopted pursuant to Article 37a. The application shall ~~not be dealt with as an~~

~~application for a registered EU design~~ **be refused** in respect of those designs for which

the additional ~~application fees have~~ **fee for deferment of publication has** not been paid

o ~~r have~~ **has** not been paid in full.

7. Failure to satisfy the requirements concerning a priority claim shall result in the loss

of the right of priority for the application.’;

(38) Article 46 is deleted;

12714/23 ADD 2 BM/AF/ps 47
# ANNEX COMPET.1 EN

(39) Article 47 is replaced by the following:

_‘Article 47_

**Grounds for non-registrability**

1. If the Office, in carrying out the examination pursuant to Article 45, notices that the design

for which protection is sought does not correspond to the definition in Article 3, point (1), ~~or~~

**that it** is contrary to public policy or to accepted principles of moralit ~~y,~~ **or, without the**

**consent of the competent authorities to the registration having been given, that it**

**constitutes an improper use of any of the items listed in Article 6ter of the Paris**

**Convention, or of badges, emblems and escutcheons other than those covered by the said**

**Article 6ter and which are of particular public interest in a Member State,** it shall notify

the applicant that the design is non-registrable, specifying the ground for non-registrability.

2. In the notification referred to in paragraph 1, the Office shall specify a period within which

the applicant may submit observations, withdraw the application or the objected views or

submit an amended representation of the design that differs only in immaterial details from

the representation as originally filed.

3. Where the applicant fails to overcome the grounds for non-registrability, the Office shall

refuse the application. If those grounds concern only some of the designs contained in a

multiple application, the Office shall refuse the application only in so far as those designs are

concerned.’;

12714/23 ADD 2 BM/AF/ps 48
# ANNEX COMPET.1 EN

(40) the following Article 47a is inserted:

_‘Article 47a_

**Withdrawal and amendment**

1. The applicant may at any time withdraw an EU design application or, in the case of a

multiple application, withdraw some of the designs contained in the application.

2. The applicant may at any time amend the representation of the EU design applied for in

immaterial details.’;

(41) the following Article 47b is inserted:

_‘Article 47b_

**Delegation of power regarding the amendment of the application**

The Commission is empowered to adopt delegated acts in accordance with Article 109(2) to

supplement this Regulation by specifying the details of the procedure for the amendment of

the application as referred to in Article 47a(2).’;

(42) Article 48 is replaced by the following:

_‘Article 48_

**Registration**

1. If the requirements for an application for a registered EU design have been fulfilled, and to

the extent that the application has not been refused pursuant to Article 47, the Office shall

enter the design contained in the application and the particulars referred to in Article 72(2) in

the Register.

12714/23 ADD 2 BM/AF/ps 49
# ANNEX COMPET.1 EN

2. If the application contains a request for deferment of publication pursuant to Article 50, an

indication of that request and the date of expiry of the period of deferment shall also be

entered in the Register.

3. The registration shall bear the date of filing of the application referred to in Article 38.

4. The fees payable pursuant to Articles 36(4) and 37(2) shall not be refunded even if the

design applied for is not registered.’;

(43) Article 49 is replaced by the following:

_‘Article 49_

**Publication**

Upon registration, the Office shall publish the registered EU design in the EU Designs

Bulletin as referred to in Article 73(1), point (a).’.

(44) the following Article 49a is inserted:

_‘Article 49a_

**Conferral of implementing powers regarding publication**

The Commission shall adopt implementing acts laying down the details to be contained in the

publication referred to in Article 49. Those implementing acts shall be adopted in accordance

with the examination procedure referred to in Article 109(2).’;

12714/23 ADD 2 BM/AF/ps 50
# ANNEX COMPET.1 EN

(45) Article 50 is replaced by the following:

_‘Article 50_

**Deferment of publication**

1. The applicant for a registered EU design may request, when filing the application, that the

publication of the registered EU design be deferred for a period of **up to** 30 months from the

date of filing the application or, if a priority is claimed, from the date of priority.

2. Upon a request referred to in paragraph 1, where the conditions set out in Article 48 are

satisfied, the registered EU design shall be registered, but neither the representation of the

design nor any file relating to the application shall, subject to Article 74(2), be open to public

inspection.

3. The Office shall publish in the EU Designs Bulletin an indication of a request referred to in

paragraph 1. The indication shall be accompanied by information identifying the right holder

of the registered design, the name of the representative, if any, the date of filing and

registration, and the file number of the application. Neither the representation of the design

nor any particulars identifying its appearance shall be published.

4. At the expiry of the period of deferment, or at any earlier date on request by the right

holder, the Office shall open to public inspection all the entries in the Register and the file

relating to the application and shall publish the registered EU design in the EU Designs

Bulletin.

5. The right holder may prevent publication of the registered EU design as referred to in

paragraph 4, by submitting a request for surrender of the EU design in accordance with

Article 51 at the latest 3 months before expiry of the period of deferment. Any requests for the

entry of the surrender in the Register that do not comply with the requirements set out in

Article 51 and the implementing acts adopted pursuant to Article 51a, or that are submitted

after the time limit referred to in the first sentence, shall be rejected.

12714/23 ADD 2 BM/AF/ps 51
# ANNEX COMPET.1 EN

6. In the case of a registration on the basis of a multiple application, the holder shall, together

with the request for earlier publication referred to in paragraph 4 or the request for surrender

referred to in paragraph 5, clearly indicate which of the designs contained in the application

are to be published earlier or surrendered and for which designs deferment of publication is to

be continued.

7. If the holder fails to comply with the requirement set out in paragraph 6, the Office shall

request the holder to remedy the deficiency within a specified time limit, which shall in no

case expire after the 30-month deferment period.

8. Failure to remedy the deficiency referred to in paragraph 7 within the specified time limit

shall result in the request for early publication being deemed not to have been filed or the

request for surrender being rejected.

9. The institution of legal proceedings on the basis of a registered EU design during the period

of deferment of publication shall be subject to the condition that the information contained in

the Register and in the file relating to the application has been communicated to the person

against whom the action is brought.’;

(46) the following Article 50a is inserted:

_‘Article 50a_

**Publication after the period of deferment**

The Office shall, at the expiry of the period of deferment referred to in Article 50 or, in the

case of a request for earlier publication, as soon as technically possible:

(a) publish the registered EU design in the EU Designs Bulletin, with the indications set

out in the rules adopted pursuant to Article 49a, together with an indication of the

fact that the application contained a request for deferment of publication pursuant to

Article 50;

12714/23 ADD 2 BM/AF/ps 52
# ANNEX COMPET.1 EN

(b) make available for public inspection any file relating to the design;

(c) open to public inspection all the entries in the Register, including any entries

withheld from inspection pursuant to Article 74(5).’;

(47) the following Article 50b is inserted:

_‘Article 50b_

**Registration certificates**

After publication of the registered EU design, the Office shall issue a certificate of

registration. The Office shall provide certified or uncertified copies of the certificate ~~subject~~

~~to the payment of a fee, where those copies are issued by other than electronic means~~ . **The**

**certificates and copies shall be issued by electronic means.** ’;

(48) The following Articles 50c and 50d are inserted:

_‘Article 50c_

**Conferral of implementing powers**

The Commission shall adopt implementing acts specifying the details to be contained in and

the form of the certificate of registration referred to in Article 50b. Those implementing acts

shall be adopted in accordance with the examination procedure referred to in Article 109(2).

_Article 50d_

**Renewal**

1. The registration of the EU design shall be renewed at the request of the right holder or of

any person expressly authorised by the right holder, provided that the renewal fees have been

paid.

12714/23 ADD 2 BM/AF/ps 53
# ANNEX COMPET.1 EN

2. The Office shall inform the right holder of the registered EU design and any person having

a registered right in respect of the EU design of the expiry of the registration at least 6 months

before the date of such expiry. Failure to give such information shall not involve the

responsibility of the Office and shall not affect the expiry of the registration.

3. The request for renewal shall be submitted within a 6 months period prior to the expiry of

the registration. The renewal fee shall also be paid within that period. Failing this, the request

may be submitted and the fee paid within a further period of 6 months following the expiry of

the registration, provided that an additional fee for late payment of the renewal fee or late

submission of the request for renewal is paid within this further period.

4. The request for renewal referred to in paragraph 1 shall include:

(a) the name of the person requesting renewal;

(b) the registration number of the EU design to be renewed;

(c) in case of a registration on the basis of a multiple application, an indication of the

designs for which renewal is requested.

If the renewal fees are paid, the payment shall be deemed to constitute a request for renewal

provided that it contains all necessary indications to establish the purpose of the payment.

5. In the case of a registration on the basis of a multiple application, where the fees paid are

insufficient to cover all the designs for which renewal is requested, registration shall be

renewed ~~if~~ **for those designs in respect of which** it is clear ~~which designs~~ the amount paid is

intended to cover. In the absence of other criteria for determining which designs are intended

to be covered, the Office shall treat the designs in the numerical order in which they are

represented in accordance with the rules adopted under Article 37a.

6. Renewal shall take effect from the day following the date on which the existing registration

expires. The renewal shall be entered in the Register.

12714/23 ADD 2 BM/AF/ps 54
# ANNEX COMPET.1 EN

7. Where the request for renewal is filed within the periods provided for in paragraph 3, but

the other conditions governing renewal provided for in this Article are not satisfied, the Office

shall inform the applicant of the deficiencies found.

8. Where a request for renewal is not submitted or is submitted after the expiry of the period

provided for in paragraph 3, or where the fees are not paid or are paid only after the period in

question has expired, or where the deficiencies referred to in paragraph 7 are not remedied

within that period, the Office shall determine that the registration has expired and shall notify

the holder of the EU design accordingly. Where the determination has become final, the

Office shall cancel the design from the Register. The cancellation shall take effect from the

day following the date on which the existing registration expired. Where the renewal fees

have been paid but the registration is not renewed, those fees shall be refunded.

9. A single request for renewal may be submitted for two or more designs provided that the

holder or the representative is the same for all designs covered by the request. The required

renewal fee shall be paid in respect of each design to be renewed.’;

(49) the following Article 50e is inserted:

_‘Article 50e_

**Alteration**

1. The representation of the registered EU design shall not be altered in the Register during

the period of registration or on renewal thereof except in immaterial details.

2. A request by the holder for alteration shall include the representation of the registered EU

design in its altered version.

12714/23 ADD 2 BM/AF/ps 55
# ANNEX COMPET.1 EN

3. A request for alteration shall be deemed not to have been filed until the required fee has

been paid. If the fee has not been paid or has not been paid in full, the Office shall inform the

holder accordingly. A single request may be made for the alteration of the same element in

two or more registrations, provided that the holder is the same for all designs. The required

alteration fee shall be paid in respect of each registration to be altered. If the requirements

governing the alteration of the registration set out in this Article and the implementing acts

adopted pursuant to Article 50f are not fulfilled, the Office shall communicate the deficiency

to the holder. If the deficiency is not remedied within a period to be specified by the Office,

the Office shall reject the request for alteration.

4. The publication of the registration of the alteration shall contain a representation of the

registered EU design as altered.’;

(50) the following Article 50f is inserted:

_‘Article 50f_

**Conferral of implementing powers regarding alteration**

The Commission shall adopt implementing acts specifying the details to be contained in the

request for alteration referred to in Article 50e(2). Those implementing acts shall be adopted

in accordance with the examination procedure referred to in Article 109(2).’;

(51) the following Article 50g is inserted:

_‘Article 50g_

**Change of name or address**

1. The holder of an EU design shall inform the Office about a change of its name or address,

which is not the consequence of a transfer or a change of ownership of the registered EU

design.

12714/23 ADD 2 BM/AF/ps 56
# ANNEX COMPET.1 EN

2. A single request may be made for a change of the name or address in respect of two or

more registrations of the same holder.

3. If the requirements for a change of name or address set out in this Article and in the

implementing acts adopted pursuant to Article 50h are not fulfilled, the Office shall

communicate the deficiency to the holder of the EU design. If the deficiency is not remedied

within the time limit specified by the Office, the Office shall reject the request.

4. Paragraphs 1, 2 and 3 shall also apply to a change of the name or address of the registered

representative.

5. The Office shall enter the particulars referred to in Article 72(3), points (a) and (b), in the

Register.

6. Paragraphs 1 to 4 shall apply to applications for EU designs. The change shall be entered in

the files kept by the Office concerning the EU design application.’;

(52) The following Article 50h is inserted:

_‘Article 50h_

**Conferral of implementing powers regarding change of name or address**

The Commission shall adopt implementing acts specifying the details to be contained in a

request for a change of name or address pursuant to Article 50g(1). Those implementing acts

shall be adopted in accordance with the examination procedure referred to in Article 109(2).’;

12714/23 ADD 2 BM/AF/ps 57
# ANNEX COMPET.1 EN

(53) Article 51 is replaced by the following:

_‘Article 51_

**Surrender**

1. The surrender of a registered EU design shall be declared to the Office in writing by the

right holder. It shall not have effect until it has been entered in the Register.

2. If an EU design which is subject to deferment of publication is surrendered it shall be

deemed from the outset not to have had the effects specified in this Regulation.

3. A surrender shall be registered only with the agreement of the proprietor of a right entered

in the Register. If a licence has been registered, a surrender shall be entered in the Register

only if the holder of the registered EU design proves that the licensee has been informed

about his intention to surrender. The entry of the surrender shall be made on expiry of the

three-month period after the date on which the holder satisfies the Office that the licensee has

been informed of the intention to surrender, or before the expiry of that period, as soon as the

holder proves that the licensee has given his consent.

4. If an action pursuant to Article 15 relating to the entitlement to a registered EU design has

been brought before the competent court or authority, the Office shall not enter the surrender

in the Register without the agreement of the claimant.

5. If the requirements governing surrender set out in this Article and in the implementing acts

adopted pursuant to Article 51a are not fulfilled, the Office shall communicate the

deficiencies to the declarant. If the deficiencies are not remedied within the time limit

specified by the Office, the Office shall not enter the surrender in the Register.’;

12714/23 ADD 2 BM/AF/ps 58
# ANNEX COMPET.1 EN

(54) the following Article 51a is inserted:

_‘Article 51a_

**Conferral of implementing powers regarding surrender**

The Commission shall adopt implementing acts specifying:

(a) the details to be contained in a declaration of surrender pursuant to Article 51(1);

(b) the kind of documentation required to establish the agreement of a third party

pursuant to Article 51(3) and that of a claimant pursuant to Article 51(4).

Those implementing acts shall be adopted in accordance with the examination procedure

referred to in Article 109(2).’;

(55) Article 52 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘1. Subject to Article 25(2) to (5), any natural or legal person, as well as a public authority

empowered to do so, may submit to the Office an application for a declaration of invalidity of

a registered EU design.’;

(b) paragraph 3 is replaced by the following:

‘3. An application for a declaration of invalidity shall not be admissible if an application

relating to the same subject matter and cause of action, and involving the same parties, has

been adjudicated on its merits, either by the Office or by an EU design court as referred to in

Article 80, and the decision of the Office or the EU design court on such application has

become final.’;

12714/23 ADD 2 BM/AF/ps 59
# ANNEX COMPET.1 EN

(56) Article 53 is replaced by the following:

_‘Article 53_

**Examination of the application**

1. If the Office finds that the application for a declaration of invalidity is admissible, the

Office shall examine whether the grounds for invalidity referred to in Article 25 prejudice the

maintenance of the registered EU design.

2. When examining the application for a declaration of invalidity, the Office shall invite the

parties, as often as necessary, to file observations, within a period to be fixed by the Office, on

communications from the other parties or issued by the Office itself.

3. If the holder of the registered EU design so requests, an applicant for a declaration of

invalidity invoking an earlier EU or national trade mark as a distinctive sign within the

meaning of Article 25(1), point (e), shall furnish proof of genuine use of such mark in

accordance with Article 64(2) and (3) of Regulation (EU) 2017/1001 and the rules adopted

pursuant to Article 53a of this Regulation.

4. A record of the Office's decision on the application for a declaration of invalidity shall be

entered in the Register once it has become final.

5. The Office may invite the parties to make a friendly settlement.’;

12714/23 ADD 2 BM/AF/ps 60
# ANNEX COMPET.1 EN

(57) the following Article 53a is inserted:

_‘Article 53a_

**Delegation of powers regarding the declaration of invalidity**

The Commission is empowered to adopt delegated acts in accordance with Article 109a to

supplement this Regulation by specifying the details of the procedure for the declaration of

invalidity of an EU design as referred to in Articles 52 and 53, including the possibility to

examine an application for a declaration of invalidity as a matter of priority where the holder

of the registered EU design does not contest the grounds of invalidity or the relief sought.’;

(58) Article 55 is replaced by the following:

_‘Article 55_

**Decisions subject to appeal**

1. An appeal shall lie from the decisions of the Office referred to in Article 102, points (a),

(b), (c), and (e).

2. Articles 66 to 72 of Regulation (EU) 2017/1001 shall apply to appeals dealt with by the

Boards of Appeal under this Regulation, unless otherwise provided in this Regulation.’;

(59) the following Article 55a is inserted:

_‘Article 55a_

**Delegation of powers regarding appeal proceedings**

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.’;

12714/23 ADD 2 BM/AF/ps 61
# ANNEX COMPET.1 EN

(60) Articles 56 to 61 are deleted;

(61) Article 62 is replaced by the following:

_‘Article 62_

**Decisions and communications of the Office**

1. Decisions of the Office shall state the reasons on which they are based. They shall be based

only on reasons or evidence on which the parties concerned have had an opportunity to

present their comments. Where oral proceedings are held before the Office, the decision may

be given orally. Subsequently, the decision shall be notified in writing to the parties.

2. Any decision, communication or notice from the Office shall indicate the department or

division of the Office as well as the name or the names of the official or officials responsible.

They shall be signed by that official or those officials, or, instead of a signature, carry a

printed or stamped seal of the Office. The Executive Director may determine that other means

of identifying the department or division of the Office and the name of the official or officials

responsible or an identification other than a seal may be used where decisions,

communications or notices are transmitted by any technical means of communication.

3. Decisions of the Office which are open to appeal shall be accompanied by a written

communication indicating that any notice of appeal is to be filed in writing at the Office

within 2 months of the date of notification of the decision in question. The communications

shall also draw the attention of the parties to the provisions laid down in Articles 66, 67, 68,

71 and 72 of Regulation (EU) 2017/1001, which also apply to appeals under this Regulation

pursuant to Article 55(2) of this Regulation. The parties may not plead any failure on the part

of the Office to communicate the availability of appeal proceedings.’;

12714/23 ADD 2 BM/AF/ps 62
# ANNEX COMPET.1 EN

(62) in Article 63, paragraph 1 is replaced by the following:

‘1. In proceedings before it the Office shall examine the facts of its own motion. However, in

proceedings relating to a declaration of invalidity, the Office shall be restricted in this

examination to the grounds, facts, evidence and arguments provided by the parties and the

relief sought.’;

(63) Article 64 is replaced by the following:

_‘Article 64_

**Oral proceedings**

1. If the Office considers that oral proceedings would be expedient, they shall be held either at

the instance of the Office or at the request of any party to the proceedings.

2. Oral proceedings before the examiners and the Department in charge of the Register shall

not be public.

3. Oral proceedings, including delivery of the decision, before the Invalidity Divisions and the

Boards of Appeal shall be public, unless the department before which the proceedings are

taking place decides otherwise in cases where admission of the public could have serious and

unjustified disadvantages, in particular for a party to the proceedings.’;

(64) the following Article 64a is inserted:

_‘Article 64a_

**Delegation of powers regarding oral proceedings**

The Commission is empowered to adopt delegated acts in accordance with Article 109a to

supplement this Regulation by setting out the detailed arrangements for oral proceedings

referred to in Article 64, including the detailed arrangements for the use of languages in

accordance with Article 98.’;

12714/23 ADD 2 BM/AF/ps 63
# ANNEX COMPET.1 EN

(65) Article 65 is amended as follows:

(a) in paragraph 3, the following sentence is added:

‘The period of notice provided in such summons shall be at least one month, unless the

party, witness or expert agrees to a shorter period.’;

(b) the following paragraph 5 is added:

‘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.’;

(66) the following Article 65a is inserted:

_‘Article 65a_

**Delegation of powers regarding the taking of evidence**

The Commission is empowered to adopt delegated acts in accordance with Article 109a to

supplement this Regulation by setting out the detailed arrangements for the taking of evidence

referred to in Article 65.’;

12714/23 ADD 2 BM/AF/ps 64
# ANNEX COMPET.1 EN

(67) Article 66 is replaced by the following:

_‘Article 66_

**Notification**

1. The Office shall, as a matter of course, notify those concerned of decisions and summonses

and of any notice or other communication from which a time limit is reckoned, or of which

those concerned are to be notified under other provisions of this Regulation or of acts adopted

pursuant to this Regulation, or of which notification has been ordered by the Executive

Director.

2. Notification shall be effected by electronic means. The details regarding electronic means

shall be determined by the Executive Director.

3. Where notification has proved to be impossible by the Office, notification shall be effected

by public notice. The Executive Director shall determine how the public notice is to be given

and shall fix the beginning of the 1-month period on the expiry of which the document shall

be deemed to have been notified.’;

(68) the following Article 66a is inserted:

_‘Article 66a_

**Delegation of powers regarding notification**

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.’;

12714/23 ADD 2 BM/AF/ps 65
# ANNEX COMPET.1 EN

(69) the following Articles 66b and 66c are inserted:

_‘Article 66b_

**Notification of loss of rights**

Where the Office finds that the loss of any rights results from this Regulation or acts adopted

pursuant to this Regulation, without any decision having been taken, it shall communicate this

to the persons concerned in accordance with Article 66. The persons concerned may apply for

a decision on the matter within 2 months of notification of the communication, if they

consider that the finding of the Office is incorrect. The Office shall adopt such a decision only

where it disagrees with the persons requesting it. If that is not the case, the Office shall amend

its finding and inform the persons requesting the decision hereof.

_Article 66c_

**Communications to the Office**

Communications addressed to the Office shall be effected by electronic means. The Executive

Director shall determine the electronic means to be used and the manner and technical

conditions under which such electronic means shall be used.’;

(70) the following Article 66d is inserted:

_‘Article 66d_

**Delegation of power regarding communications to the Office**

The Commission is empowered to adopt delegated acts in accordance with Article 109a

supplementing this Regulation by specifying the rules on communications addressed to the

Office as referred to in Article 66c and the forms for such communication that shall be made

available by the Office.’;

12714/23 ADD 2 BM/AF/ps 66
# ANNEX COMPET.1 EN

(71) the following Article 66e is inserted:

_‘Article 66e_

**Time limits**

1. Time limits shall be laid down in terms of full years, months, weeks or days. Calculation

shall start on the day following the day on which the relevant event occurred. The duration of

time limits shall be no less than one month and no more than 6 months, unless otherwise set

out in this Regulation or in any acts adopted pursuant to this Regulation.

2. The Executive Director shall determine, before the commencement of each calendar year,

the days on which the Office is not open for receipt of documents.

3. The Executive Director shall determine the duration of the period of interruption in the case

of an actual interruption of the Office's connection to admitted electronic means of

communication.

4. If an exceptional occurrence, such as a natural disaster or strike, interrupts or interferes

with proper communication from the parties to the proceedings to the Office or vice-versa, the

Executive Director may determine that for parties to the proceedings that have their residence

or registered office in the geographical area affected by the exceptional occurrence, or who

have appointed a representative with a place of business in that area, all time limits that

otherwise would expire on or after the date of commencement of such occurrence shall be

extended until a certain date. When determining that date, the Executive Director shall assess

when the exceptional occurrence comes to an end. If the occurrence affects the seat of the

Office, such determination of the Executive Director shall specify that it applies in respect of

all parties to the proceedings.’;

12714/23 ADD 2 BM/AF/ps 67
# ANNEX COMPET.1 EN

(72) the following Article 66f is inserted:

_‘Article 66f_

**Delegation of power regarding calculation and duration of time limits**

The Commission is empowered to adopt delegated acts in accordance with Article 109a to

supplement this Regulation by specifying the details regarding the calculation and duration of

time limits referred to in Article 66e.’;

(73) the following Articles 66g and 66h are inserted:

_‘Article 66g_

**Correction of errors and manifest oversights**

1. The Office shall correct any linguistic errors or errors of transcription and manifest

oversights in its decisions, errors in registering an EU design or errors in publishing the

registration of its own motion or at the request of a party.

2. Where the correction of errors in the registration of an EU design or the publication of the

registration is requested by the holder, Article 50g shall apply mutatis mutandis.

3. Corrections of errors in the registration of an EU design and in the publication of the

registration shall be published.

12714/23 ADD 2 BM/AF/ps 68
# ANNEX COMPET.1 EN

_Article 66h_

**Cancellation of entries in the Register and revocation of decisions**

1. Where the Office has made an entry in the Register or taken a decision which contains an

obvious error attributable to the Office, it shall ensure that the entry is cancelled or the

decision is revoked. Where there is only one party to the proceedings and the entry or the act

affects its rights, cancellation or revocation shall be determined even if the error was not

evident to the party.

2. Cancellation or revocation as referred to in paragraph 1 shall be determined, _ex officio_ or at

the request of one of the parties to the proceedings, by the department which made the entry

or took the decision. The cancellation of the entry in the Register or the revocation of the

decision shall be effected within one year of the date on which the entry was made or the

decision was taken, after consultation with the parties to the proceedings and any proprietor of

rights to the EU Design in question that are entered in the Register. The Office shall keep

records of any such cancellation or revocation.

~~4~~ ~~**3**~~ . This Article shall be without prejudice to the right of the parties to submit an appeal

under Articles 55 and 55a or to the possibility of correcting errors and manifest oversights

under Article 66g. Where an appeal has been filed against a decision of the Office containing

an error, the appeal proceedings shall become devoid of purpose upon revocation by the

Office of its decision pursuant to paragraph 1 of this Article. In the latter case, the appeal fee

shall be reimbursed to the appellant.’;

12714/23 ADD 2 BM/AF/ps 69
# ANNEX COMPET.1 EN

(74) the following Article 66i is inserted:

_‘Article 66i_

**Delegation of power regarding cancellation of entries and revocation of decisions**

The Commission is empowered to adopt delegated acts in accordance with Article 109a to

supplement this Regulation by setting out the procedure for the cancellation of an entry in the

Register or the revocation of a decision as referred to in Article 66h.’;

(75) Article 67 is amended as follows:

(a) in paragraph 2, the fourth sentence is replaced by the following:

‘In the case of non-submission of the request for renewal of registration or of non

payment of a renewal fee, ~~the application shall be filed and the omitted act completed~~

~~within 12 months from the date of expiration of the further period of 6 months~~

~~following the expiry of registration provided in the third sentence of Article 50d(3)~~ **the**

**further period of 6 months following the expiry of registration provided in the**

**third sentence of Article 50d(3) shall not be deducted from the period of one year** .’;

(b) in paragraph 3, the following sentence is added:

‘If the request for restitutio in integrum is granted, the fee shall be reimbursed.’;

(c) paragraph 5 is replaced by the following:

‘5. Non-observance of the time limits laid down in paragraph 2 and in Article 67a shall

not give rise to re-establishment of rights as referred to in paragraph 1 of this Article.’;

12714/23 ADD 2 BM/AF/ps 70
# ANNEX COMPET.1 EN

(76) the following Articles 67a and 67b are inserted:

_‘Article 67a_

**Continuation of proceedings**

1. An applicant for or a holder of a registered EU design or any other party to proceedings

before the Office who has not observed a time limit vis-à-vis the Office may, upon request,

obtain the continuation of proceedings, provided that at the time the request is made the

omitted act has been carried out. The request for continuation of proceedings shall be

admissible only if it is submitted within 2 months of the expiry of the unobserved time limit.

The request shall not be deemed to have been filed until the fee for continuation of the

proceedings has been paid.

2. Continuation of proceedings shall not be granted in case of non-observance of the time

limits laid down in:

(a) Article 38 and Articles 41(1), 44(1), 45(3), 50d(3), and Article 67(2);

(b) Article 68 and Article 72(5) of Regulation (EU) 2017/1001 in conjunction with

Article 55(2) of this Regulation;

(c) paragraph 1 of this Article.

3. The department competent to decide on the omitted act shall decide upon the request for

continuation.

4. If the Office accepts the request for continuation, the consequences of having failed to

observe the time limit shall be deemed not to have occurred. If a decision has been taken

between the expiry of that time limit and the request for the continuation of proceedings, the

department competent to decide on the omitted act shall review the decision and, where

completion of the omitted act itself is sufficient, take a different decision. If, following the

review, the Office concludes that the original decision does not require to be altered, it shall

confirm that decision in writing.

12714/23 ADD 2 BM/AF/ps 71
# ANNEX COMPET.1 EN

5. If the Office rejects the request for continuation, the fee shall be refunded.

_Article 67b_

**Interruption of proceedings**

1. Proceedings before the Office shall be interrupted:

(a) in the event of the death or legal incapacity of the applicant for, or holder of, a

registered EU design or of the person authorised by national law to act on behalf of

the applicant or holder.

(b) in the event of the applicant for, or holder of, a registered EU design being

prevented, for legal reasons resulting from action taken against his property, from

continuing the proceedings before the Office;

(c) in the event of the death or legal incapacity of the representative of an applicant for,

or holder of, a registered EU design, or of that representative being prevented, for

legal reasons resulting from action taken against his property, from continuing the

proceedings before the Office.

To the extent that the death or incapacity referred to in the first subparagraph, point (a), does

not affect the authorisation of a representative appointed under Article 78, proceedings shall

be interrupted only on application by such representative.

2. Proceedings before the Office may be resumed as soon as the identity of the person

authorised to continue them has been established or the Office has exhausted all reasonable

attempts to establish the identity of such person.’;

12714/23 ADD 2 BM/AF/ps 72
# ANNEX COMPET.1 EN

(77) the following Article 67c is inserted:

_‘Article 67c_

**Delegation of power regarding the resumption of proceedings**

The Commission is empowered to adopt delegated acts in accordance with Article 109a to

supplement this Regulation by setting out the detailed arrangements for the resumption of

proceedings before the Office referred to in Article 67b(2).’;

(78) Article 68 is replaced by the following:

‘ _Article 68_

**Reference to general principles**

In the absence of procedural provisions in this Regulation or in acts adopted pursuant to this

Regulation, the Office shall take into account the principles of procedural law generally

recognised in the Member States.’;

(79) in Article 69, paragraphs 1 and 2 are replaced by the following:

‘1. Rights of the Office to the payment of fees shall be extinguished after four years from the

end of the calendar year in which the fee fell due.

2. Rights against the Office for the refunding of fees or sums of money paid in excess of a fee

shall be extinguished after four years from the end of the calendar year in which the right

arose.’;

12714/23 ADD 2 BM/AF/ps 73
# ANNEX COMPET.1 EN

(80) Article 70 is replaced by the following:

_‘Article 70_

**Apportionment of costs**

1. The losing party in proceedings for a declaration of invalidity of a registered EU design or

appeal proceedings shall bear the fees paid by the other party for the application for a

declaration of invalidity and for appeal. The losing party shall also bear the costs incurred by

the other party that are essential to the proceedings, including travel and subsistence and the

remuneration of a representative within the meaning of Article 78(1), within the maximum

rates set for each category of costs in the implementing act adopted pursuant to Article 70a.

2. Where each party succeeds on some and fails on other heads, or where reasons of equity so

dictate, the Invalidity Division or Board of Appeal shall decide on another apportionment of

costs than the one set out in paragraph 1.

3. The party who terminates the proceedings by withdrawing ~~the EU design application,~~ the

application for a declaration of invalidity or the appeal, by not renewing the registration of the

EU design, or by surrendering the registered EU design, shall bear the fees and the costs

incurred by the other party as set out in paragraphs 1 and 2.

4. Where a case does not proceed to judgment, the costs shall be at the discretion of the

Invalidity Division or Board of Appeal.

5. Where the parties conclude before the Invalidity Division or Board of Appeal a settlement

of costs differing from that provided for in paragraphs 1 to 4, the body concerned shall take

note of that agreement.

12714/23 ADD 2 BM/AF/ps 74
# ANNEX COMPET.1 EN

6. The Invalidity Division or Board of Appeal shall fix _ex officio_ the amount of the costs to be

paid pursuant to paragraphs 1 to 5 of this Article when the costs to be paid are limited to the

fees paid to the Office and the representation costs. In all other cases, the registry of the Board

of Appeal or Invalidity Division shall fix, on request, the amount of the costs to be paid. The

request shall be admissible only for a period of 2 months following the date on which the

decision for which an application was made for the costs to be fixed becomes final and shall

be accompanied by a bill and supporting evidence. For the costs of representation pursuant to

Article 78(1), an assurance by the representative that the costs have been incurred shall be

sufficient. For other costs, it shall be sufficient if their plausibility is established. Where the

amount of the costs is fixed pursuant to the first sentence of this paragraph, representation

costs shall be awarded at the level laid down in the implementing act adopted pursuant to

Article 70a and irrespective of whether they have been actually incurred.

7. Decisions on the fixing of costs adopted in accordance with paragraph 6 shall state the

reasons on which it is based and may be reviewed by the Invalidity Division or Board of

Appeal on a request filed within 1 month of the date of notification of the decision. It shall not

be deemed to be filed until the fee for reviewing the amount of the costs has been paid. The

Invalidity Division or the Board of Appeal, as the case may be, shall take a decision on the

request for a review of the decision on the fixing of costs without oral proceedings.’;

12714/23 ADD 2 BM/AF/ps 75
# ANNEX COMPET.1 EN

(81) the following Article 70a is inserted:

_Article 70a_

**Conferral of implementing powers regarding maximum rates for costs**

The Commission shall adopt implementing acts specifying the maximum rates for costs

essential to the proceedings and actually incurred by the successful party as referred to in

Article 70(1). Those implementing acts shall be adopted in accordance with the examination

procedure referred to in Article 109(2).

When specifying the maximum rates with respect to travel and subsistence costs, the

Commission shall take into account the distance between the place of residence or business of

the party, representative or witness or expert and the place where the oral proceedings are

held, the procedural stage at which the costs have been incurred, and, as far as costs of

representation within the meaning of to Article 78(1) are concerned, the need to ensure that

the obligation to bear the costs may not be misused for tactical reasons by the other party. In

addition, subsistence expenses shall be calculated in accordance with the Staff Regulations of

Officials of the Union and the Conditions of Employment of Other Servants of the Union, laid

down in Council Regulation (EEC, Euratom, ECSC) No 259/68*. The losing party shall bear

the costs for one party in the proceedings only and, where applicable, one representative only.

**______**

   - Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying

down the Staff Regulations of Officials and the Conditions of Employment of Other Servants

of the European Commission and instituting special measures temporarily applicable to

officials of the Commission (OJ L 56, 4.3.1968, p. 1.)’;

12714/23 ADD 2 BM/AF/ps 76
# ANNEX COMPET.1 EN

(82) in Article 71, paragraph 2 is replaced by the following:

‘2. Enforcement shall be governed by the rules of civil procedure in force in the Member State

in the territory of which it is carried out. Each Member State shall designate a single authority

responsible for verifying the authenticity of the decision referred to in paragraph 1 and shall

communicate its contact details to the Office, the Court of Justice and the Commission. The

order for enforcement shall be appended to the decision by that authority, with the verification

of the authenticity of the decision as the sole formality.’;

(83) Article 72 is replaced by the following:

_‘Article 72_

**Register of EU designs**

1. The Office shall keep a Register of registered EU designs which it shall keep up to date.

2. The Register shall contain the following entries relating to EU design registrations:

(a) the date of filing **and registration of** the application **, pursuant to Article 48(3)** ;

(b) the file number of the application and the file number of each individual design

included in a multiple application;

(c) the date of the publication of the registration;

(d) the name and city and country of the applicant;

(e) the name and business address of the representative, other than a representative

referred to in Article 77(3), first sentence;

(f) the representation of the design;

(g) the names of the products, preceded by the numbers of the classes and subclasses of

the Locarno classification;

12714/23 ADD 2 BM/AF/ps 77
# ANNEX COMPET.1 EN

(h) particulars of claims of priority pursuant to Article 42;

(i) particulars of claims of exhibition priority pursuant to Article 44;

(j) the citation of the designer or of the team of designers pursuant to Article 18, or a

statement that the designer or the team of designers has waived the right to be cited;

(k) the language in which the application was filed and the second language which the

applicant has indicated in his application, pursuant to Article 98(3);

(l) the date of registration of the design in the Register and the registration number

pursuant to Article 48 **(1)** ;

(m) an indication of any request for deferment of publication pursuant to Article 50(3),

specifying the date of expiry of the period of deferment;

(n) an indication that a description was filed pursuant to Article 36(3), point (a).

3. The Register shall also contain the following entries, each accompanied by the date of their

recording:

(a) changes in the name or the city and country of the holder pursuant to Article 50g;

(b) changes in the name or business address of the representative, other than a

representative referred to in Article 77(3), first sentence;

(c) where a new representative is appointed, the name and business address of that

representative;

(d) changes in the name of the designer or the team of designers pursuant to Article 18;

(e) ~~withdrawals, amendments and corrections of the design, pursuant to Article 47a and~~

corrections of errors and manifest oversights pursuant to Article 66g;

12714/23 ADD 2 BM/AF/ps 78
# ANNEX COMPET.1 EN

(f) alterations of the design pursuant to Article 50e;

(g) an indication that entitlement proceedings have been instituted before the competent

court under Article 15(5), point (a);

(h) the date and particulars of the final decision of the competent court or other

termination of proceedings pursuant to Article 15(5), point (b);

(i) a change of ownership pursuant to Article 15(5), point (c);

(j) a transfer pursuant to Article 28;

(k) the creation or transfer of a right in rem pursuant to Article 29 and the nature of the

right in rem;

(l) a levy of execution pursuant to Article 30 and insolvency proceedings pursuant to

Article 31;

(m) the grant or transfer of a licence pursuant to Article 16(2) or Article 32 and, where

applicable, the type of licence pursuant to Article 32a(3);

(n) the renewal of the registration pursuant to Article 50d and the date from which that

renewal takes effect;

(o) the determination of the expiry of the registration pursuant to Article 50d(8);

(p) a declaration of surrender by the holder pursuant to Article 51(1);

(q) the date of submission and the particulars of an application for a declaration of

invalidity under Article 52, of a counterclaim for a declaration of invalidity pursuant

to Article 84(5) or of an appeal pursuant to Article 55;

12714/23 ADD 2 BM/AF/ps 79
# ANNEX COMPET.1 EN

(r) the date and particulars of the final decision on the application for a declaration of

invalidity pursuant to Article 53, of the final decision on a counterclaim for a

declaration of invalidity pursuant to Article 86(3), of the final decision on an appeal

pursuant to Article 55, or of any other termination of proceedings pursuant, to those

Articles;

(s) the cancellation of the representative recorded pursuant to paragraph 2, point (e);

(t) the modification or cancellation from the Register of the items referred to in

paragraph 3, points (l), (m) and (n).

(u) the revocation of a decision or an entry in the Register pursuant to Article 66h, where

the revocation concerns a decision or entry which has been published.

4. The Executive Director may determine that items other than those referred to in paragraphs

2 and 3 shall be entered in the Register.

5. The Register may be maintained in electronic form. The Office shall collect, organise,

make public and store the items referred to in paragraphs 1, 2 and 3, including any personal

data, for the purposes laid down in paragraph 8. The Office shall keep the Register easily

accessible for public inspection.

6. The holder of a registered EU design shall be notified of any change in the Register.

7. The Office shall, where access to the Register is not restricted pursuant to Article 74(5),

provide **, by electronic means,** certified or uncertified extracts from the Register on request ~~,~~

~~subject to the payment of a fee where those extracts are issued other than by electronic means~~ .

8. The processing of the data concerning the entries set out in paragraphs 2 and 3, including

any personal data, shall take place for the purposes of:

(a) administering the applications and/or registrations as described in this Regulation

and any acts adopted pursuant to it;

12714/23 ADD 2 BM/AF/ps 80
# ANNEX COMPET.1 EN

(b) maintaining a public Register for inspection by, and the information of, public

authorities and economic operators, in order to enable them to exercise the rights

conferred on them by this Regulation and be informed about the existence of prior

rights belonging to third parties;

(c) producing reports and statistics enabling the Office to optimise its operations and

improve the functioning of the system for registration of EU designs.

9. All the data, including personal data, concerning the entries in paragraphs 2 and 3 shall be

considered to be of public interest and may be accessed by any third party except to the extent

that Article 50(2) provides otherwise. The entries in the Register shall be kept for an

indefinite period of time.’;

(84) the following Articles 72a and 72b are inserted:

_‘Article 72a_

**Database**

1. In addition to the obligation to keep a Register as set out in Article 72, the Office shall

collect and store in an electronic database all the particulars provided by holders or any other

party to the proceedings pursuant to this Regulation or acts adopted pursuant to it.

2. The electronic database may include personal data, beyond those included in the Register

pursuant to Article 72, to the extent that such data is required by this Regulation or by acts

adopted pursuant to it. The collection, storage and processing of personal data shall serve the

purposes of:

(a) administering the applications and/or registrations as described in this Regulation

and in acts adopted pursuant to it;

(b) accessing the information necessary for conducting the relevant proceedings more

easily and efficiently;

12714/23 ADD 2 BM/AF/ps 81
# ANNEX COMPET.1 EN

(c) communicating with the applicants and other parties to the proceedings;

(d) producing reports and statistics enabling the Office to optimise its operations and

improve the functioning of the system.

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.

4. Access to the personal data referred to in paragraph 2 shall be restricted and such data shall

not be made publicly available unless the party concerned has given his express consent.

5. All data shall be kept indefinitely. However, the party concerned may request the removal

of any personal data from the database after 18 months from the expiry of the registered EU

design or the closure of the relevant inter partes procedure. The party concerned shall have the

right to obtain the correction of inaccurate or erroneous data at any time.

_Article 72b_

**Online access to decisions**

1. The decisions of the Office regarding registered EU designs shall be made available online

for the information and consultation of the general public. Any party to the proceedings that

led to the adoption of the decision may request the removal of any personal data included in

the decision.

2. The Office may provide online access to judgments of national and Union courts related to

its tasks in order to raise public awareness of intellectual property matters and promote

convergence of practices. The Office shall respect the conditions of the initial publication

with regard to personal data.’;

12714/23 ADD 2 BM/AF/ps 82
# ANNEX COMPET.1 EN

(85) Article 73 is replaced by the following:

_‘Article 73_

**Periodical publications**

1. The Office shall periodically publish:

(a) an European Union Designs Bulletin containing publications of entries made in the

Register, as well as other particulars relating to registrations of EU designs the

publication of which is required under this Regulation or by acts adopted pursuant to

it;

(b) an Official Journal of the Office containing notices and information of a general

character issued by the Executive Director, as well as any other information relevant

to this Regulation or its implementation.

The publications referred to in the first subparagraph, points (a) and (b), may be effected by

electronic means.

2. The European Union Designs Bulletin shall be published in a manner and at a frequency to

be determined by the Executive Director.

3. The Official Journal of the Office shall be published in the languages of the Office.

However, the Executive Director may determine that certain items shall be published in the

Official Journal of the Office in the official languages of the Union.’;

12714/23 ADD 2 BM/AF/ps 83
# ANNEX COMPET.1 EN

(86) the following Article 73a is inserted:

_‘Article 73a_

**Conferral of implementing powers regarding periodical publications**

The Commission shall adopt implementing acts specifying:

(a) the date to be considered as the date of publication in the European Union Designs

Bulletin;

(b) the manner of publication of entries regarding the registration of a design which do

not contain changes as compared to the publication of the application;

(c) the forms in which editions of the Official Journal of the Office may be made

available to the public.

Those implementing acts shall be adopted in accordance with the examination procedure

referred to in Article 109(2).’;

(87) Article 74 is amended as follows:

(a) paragraph 4 is replaced by the following:

‘4. Where the files are inspected pursuant to paragraph 2 or 3, the following parts of the

file shall be excluded from inspection:

(a) documents relating to exclusion or objection pursuant to Article 169 of

Regulation (EU) 2017/1001;

(b) draft decisions and opinions, and all other internal documents used for the

preparation of decisions and opinions;

12714/23 ADD 2 BM/AF/ps 84
# ANNEX COMPET.1 EN

(c) parts of the file which the party concerned showed a special interest in keeping

confidential before the request for inspection of the files was made, unless

inspection of such part of the file is justified by overriding legitimate interests

of the party seeking inspection.’;

(b) the following paragraph 5 is added:

‘5. Where the registration is subject to a deferment of publication pursuant to Article

50(1), access to the Register for persons other than the holder shall be limited to the

name of the holder, the name of any representative, the date of filing and registration,

the file number of the application and the indication that publication is deferred. In such

cases, the certified or uncertified extracts from the register shall contain only the name

of the holder, the name of any representative, the date of filing and registration, the file

number of the application and the indication that publication is deferred, except where

the request for extracts has been made by the holder or by his representative.’;

(88) the following Articles 74a, 74b and 74c are inserted:

_‘Article 74a_

**Procedures for the inspection of files**

1. Inspection of the files of registered EU designs shall be of the ~~original document, or of~~

~~copies thereof, or of~~ technical means of storage ~~if~~ **of** the files ~~are stored in that way~~ . **Such**

**inspection shall take place online.** ~~The request for inspection of the files shall not be deemed~~

~~to have been made until the required fee has been paid. No fee shall be payable if inspection~~

~~of technical means of storage takes place online.~~ The Executive Director shall determine the

means of inspection.

12714/23 ADD 2 BM/AF/ps 85
# ANNEX COMPET.1 EN

2. Where the request for inspection of the files relates to an application for a registered EU

design or to a registered EU design which has been subject to deferment of publication and

which has been surrendered before or on the date of expiry of the period of deferment, the

request shall contain evidence to the effect that:

(a) the applicant for or holder of the EU design has consented to the inspection; or

(b) the person requesting the inspection has established a legitimate interest in the

inspection of the file.

3. ~~Inspection of the files shall take place on the premises of the Office. O~~ n request, inspection

of the files shall be effected by means of **electronic** copies of file documents. ~~The issuing of~~

~~such copies shall be conditional on the payment of a fee.~~ The Office shall also, on request,

issue certified or uncertified copies of the application for an EU design ~~upon payment of a fee~~

**by electronic means** .

_Article 74b_

**Communication of information contained in the files**

Subject to the restrictions provided for in Article 74 of this Regulation, the Office may, upon

request, communicate information from any file of any procedure relating to an EU design

application or to a registered EU design ~~, subject to payment of a fee. However, if the Office~~

~~finds it appropriate due to the quantity of information to be supplied, it may require the person~~

~~requesting the inspection to inspect the file in situ on the premises of the Office~~ .

_Article 74c_

**Keeping of files**

1. The Office shall keep the files of any procedure relating to EU design applications and to

registered EU designs. The Executive Director shall determine the form in which those files

shall be kept.

12714/23 ADD 2 BM/AF/ps 86
# ANNEX COMPET.1 EN

2. Where the files are kept in electronic format, the electronic files, or back-up copies thereof,

shall be kept indefinitely. The original documents filed by parties to the proceedings, and

forming the basis of such electronic files, shall be disposed of after a period following their

reception by the Office, which shall be determined by the Executive Director.

3. Where, and to the extent that, files or parts of the files are kept in any form other than

electronically, documents or items of evidence constituting part of such files shall be kept for

at least five years from the end of the year in which:

(a) the application is rejected or withdrawn;

(b) the registration of the EU design expires definitively;

(c) the surrender of the registered EU design is entered in the Register pursuant to

Article 51 of this Regulation;

(d) the registered EU design is definitively removed from the Register.’;

(89) Article 75 is replaced by the following:

_‘Article 75_

**Administrative cooperation**

1. Unless otherwise provided in this Regulation or in national laws, the Office and the courts

or authorities of the Member States shall on request give assistance to each other by

communicating information or opening files for inspection. Where the Office opens files to

inspection by courts, Public Prosecutors' Offices or central industrial property offices, the

inspection shall not be subject to the restrictions laid down in Article 74.

2. The Office shall not charge fees for the communication of information or the opening of

files for inspection.’;

12714/23 ADD 2 BM/AF/ps 87
# ANNEX COMPET.1 EN

(90) the following Article 75a is inserted:

_‘Article 75a_

**Conferral of implementing powers regarding administrative cooperation**

The Commission shall adopt implementing acts setting out the detailed arrangements for the

exchange of information between the Office and the authorities of the Member States and for

the opening of files for inspection as referred to in Article 75, taking into account the

restrictions to which the inspection of files relating to EU design applications or registrations

is subject, pursuant to Article 74, when they are opened to third parties. Those implementing

acts shall be adopted in accordance with the examination procedure referred to in Article

109(2).’;

(91) Article 76 is deleted;

(92) Article 77 is replaced by the following:

_‘Article 77_

**General principles of representation**

1. Subject to paragraph 2, no person shall be compelled to be represented before the Office.

2. Without prejudice to the second sentence of paragraph 3 of this Article, natural or legal

persons having neither their domicile nor their principal place of business or a real and

effective industrial or commercial establishment in the EEA shall be represented before the

Office in accordance with Article 78(1) in all proceedings provided for by this Regulation,

other than the filing of an application for a registered EU design.

12714/23 ADD 2 BM/AF/ps 88
# ANNEX COMPET.1 EN

3. Natural or legal persons having their domicile or principal place of business or a real and

effective industrial or commercial establishment in the EEA may be represented before the

Office by an employee. An employee of a legal person to which this paragraph applies may

also represent other legal persons which have economic connections with the first legal

person, even if those other legal persons have neither their domicile nor their principal place

of business nor a real and effective industrial or commercial establishment within the EEA.

Employees who represent persons within the meaning of this paragraph shall, at the request of

the Office or, where appropriate, of the party to the proceedings, provide the Office with a

signed authorisation for insertion in the files.

4. Where there is more than one applicant or more than one third party acting in common, a

common representative shall be appointed.’;

(93) Article 78 is amended as follows:

(a) paragraphs 1 to 6 are replaced by the following:

‘1. Representation of natural or legal persons in proceedings before the Office under this

Regulation may only be undertaken by any of the following:

(a) a legal practitioner qualified in one of the Member States of the EEA and

having his place of business within the EEA, to the extent that he is entitled,

within that Member State, to act as a representative in industrial property

matters;

(b) professional representatives whose names appear on the list of professional

representatives referred to in Article 120(1)(b) of Regulation (EU) 2017/1001;

(c) professional representatives whose names appear on the special list of

professional representatives for design matters referred to in paragraph 4.

2. The persons referred to in paragraph 1, point (c), shall only be entitled to represent

third persons in proceedings on design matters before the Office.

12714/23 ADD 2 BM/AF/ps 89
# ANNEX COMPET.1 EN

3. Representatives acting before the Office shall, at the request of the Office or, where

appropriate, of the other party to the proceedings, provide the Office with a signed

authorisation for insertion on the files.

4. The Office shall establish and maintain a special list of professional representatives in

design matters (the ‘list of professional representatives in design matters’). Any natural

person who fulfils all the following conditions may be included in that list:

(a) being a national of one of the Member States of the EEA;

(b) having his place of business or employment in the EEA;

(c) being entitled to represent natural or legal persons in design matters before the

Benelux Office for Intellectual Property or before the central industrial

property office of a Member State of the EEA.

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.

5. Entry on the list of professional representatives in design matters shall be effected upon

request, accompanied by a certificate furnished by the Benelux Office for Intellectual

Property or the central industrial property office of the Member State concerned, indicating

that the conditions laid down in paragraph 4 are fulfilled. The entries in the list of professional

representatives in design matters shall be published in the Official Journal of the Office.

12714/23 ADD 2 BM/AF/ps 90
# ANNEX COMPET.1 EN

6. The Executive Director may grant an exemption from any of the following:

(a) the requirement set out in paragraph 4, point (a), in the case of highly qualified

professionals, provided that the requirements set out in paragraph 4, points (b)

and (c), are fulfilled;

(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.’;

(b) paragraph 7 is replaced by the following:

‘7. A person may be removed from the list of professional representatives in design matters at

the request of the person or when that person is no longer in a capacity to act as a professional

representative. The amendments of the list of professional representatives in design matters

shall be published in the Official Journal of the Office.’;

(c) the following paragraph is added:

‘8. Representatives acting before the Office shall be entered in the database referred to in

Article 72a and obtain an identification number. The Office may require the representative to

prove the real and effective nature of their establishment or employment at any of the

addresses identified. The Executive Director may determine the formal requirements for

obtaining an identification number, in particular for associations of representatives, and for

the entries of the representatives in the database.’;

12714/23 ADD 2 BM/AF/ps 91
# ANNEX COMPET.1 EN

(94) the following Article 78a is inserted:

_‘Article 78a_

**Delegation of powers regarding professional representation**

The Commission is empowered to adopt delegated acts in accordance with Article 208 to

supplement this Regulation by specifying:

(a) the conditions and the procedure for the appointment of a common representative as

referred to in Article 77(4);

(b) the conditions under which employees referred to in Article 77(3) and professional

representatives referred to in Article 78(1) shall file with the Office a signed

authorisation in order to undertake representation, and the content of that

authorisation;

(c) the circumstances in which a person may be removed from the list of professional

representatives in design matters referred to in Article 78(7).’;

12714/23 ADD 2 BM/AF/ps 92
# ANNEX COMPET.1 EN

(95) Article 79 is replaced by the following:

_‘Article 79_

**Application of Union rules on jurisdiction and the recognition and enforcement of judgments**

**in civil and commercial matters**

1. Unless otherwise specified in this Regulation, the Union rules on jurisdiction and the

recognition and enforcement of judgments in civil and commercial matters shall apply to

proceedings relating to EU designs and applications for registered EU designs, as well as to

proceedings relating to simultaneous and successive actions on the basis of EU designs and

national designs.

2. In the case of proceedings in respect of the actions and claims referred to in Article 81:

(a) Articles 4 and 6, Article 7, points 1, 2, 3 and 5, and Article 35 of Regulation (EU) No

1215/2012 of the European Parliament and of the Council* shall not apply;

(b) Articles 25 and 26 of Regulation (EU) No 1215/2012 shall apply subject to the

limitations set out in Article 82(4) of this Regulation;

(c) the provisions of Chapter II of Regulation (EU) No 1215/2012 which are applicable

to persons domiciled in a Member State shall apply also to persons who do not have

a domicile in any Member State but have an establishment therein.

12714/23 ADD 2 BM/AF/ps 93
# ANNEX COMPET.1 EN

3. References in this Regulation to Regulation (EU) No 1215/2012 shall include, where

appropriate, the Agreement between the European Community and the Kingdom of Denmark

on jurisdiction and the recognition and enforcement of judgments in civil and commercial

matters done on 19 October 2005.

   - Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12

December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and

commercial matters (OJ L 351, 20.12.2012, p.1).’;

(96) in Article 80, paragraph 5 is deleted;

(97) Article 82 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘1. Subject to the provisions of this Regulation and to any provisions of Regulation

(EU) No 1215/2012 applicable by virtue of Article 79, proceedings in respect of the

actions and claims referred to in Article 81 shall be brought in the courts of the Member

State in which the defendant is domiciled or, if the defendant is not domiciled in any of

the Member States, in any Member State in which the defendant has an establishment.’;

~~(a~~ ~~**b**~~ ) paragraph 4 is replaced by the following:

‘4. By way of derogation from paragraphs 1, 2 and 3:

(a) Article 25 of Regulation (EU) No 1215/2012 shall apply if the parties agree

that a different EU design court shall have jurisdiction;

(b) Article 26 of Regulation (EU) No 1215/2012 shall apply if the defendant enters

an appearance before a different EU design court.’;

12714/23 ADD 2 BM/AF/ps 94
# ANNEX COMPET.1 EN

(98) in Article 84, the following paragraphs 5 and 6 are added:

‘5. The EU design court with which a counterclaim for a declaration of invalidity of a

registered EU design has been filed shall not proceed with the examination of the

counterclaim, until either the interested party or the court has informed the Office of the date

on which the counterclaim was filed. The Office shall record that information in the Register

in accordance with Article 72(3), point (q). If an application for a declaration of invalidity of

the registered EU design had been filed with the Office before the counterclaim was filed, the

court shall be informed thereof by the Office and stay the proceedings in accordance with

Article 91(1) until the decision on the application is final or the application is withdrawn.

6. The EU design court hearing a counterclaim for a declaration of invalidity of a registered

EU design may, on application by the right holder of the registered EU design and after

hearing the other parties, stay the proceedings and request the defendant to submit an

application for a declaration of invalidity to the Office within a time limit which the court

shall determine. If the application is not made within the time limit, the proceedings shall

continue; the counterclaim shall be deemed withdrawn. Article 91(3) shall apply.’;

(99) Article 86 is replaced by the following:

_‘Article 86_

**Judgments of invalidity**

1. Where in a proceeding before an EU design court the EU design has been put in issue by

way of a counterclaim for a declaration of invalidity:

(a) if any of the grounds mentioned in Article 25 are found to prejudice the maintenance

of the EU design, the court shall declare the EU design invalid;

(b) if none of the grounds mentioned in Article 25 is found to prejudice the maintenance

of the EU design, the court shall reject the counterclaim.

12714/23 ADD 2 BM/AF/ps 95
# ANNEX COMPET.1 EN

2. An EU design court shall reject a counterclaim for a declaration of invalidity of a registered

EU design if a decision taken by the Office relating to the same subject matter and cause of

action and involving the same parties has already become final.

3. Where an EU design court has given a judgment which has become final on a counterclaim

for a declaration of invalidity of a registered EU design, a copy of the judgment shall be sent

to the Office without delay, either by the court or by any of the parties to the national

proceedings. The Office or any other interested party may request information about such

judgment. The Office shall enter the judgment in the Register in accordance with Article

72(3), point (r).’;

(100) in Article 88, paragraph 2 is replaced by the following:

‘2. On all matters not covered by this Regulation, an EU design court shall apply the

applicable national law.’;

(101) Article 89 is replaced by the following:

_‘Article 89_

**Sanctions in actions for infringement**

1. Where an EU design court finds that the defendant has infringed or threatened to infringe

an EU design, it shall, unless there are special reasons for not doing so, issue an order

prohibiting the defendant from proceeding with the acts which infringed or would infringe the

EU design. It shall also take such measures in accordance with its national law as are aimed at

ensuring that this prohibition is complied with.

2. The EU design court may also apply measures or orders available under the applicable law

which it deems appropriate in the circumstances of the case.’;

12714/23 ADD 2 BM/AF/ps 96
# ANNEX COMPET.1 EN

(102) in Article 90, paragraph 3 is replaced by the following:

‘3. An EU design court whose jurisdiction is based on Article 82(1), (2), (3) or (4) shall have

jurisdiction to grant provisional measures, including protective measures, which, subject to

any necessary procedure for recognition and enforcement pursuant to Chapter III of

Regulation (EU) No 1215/2012, are applicable in the territory of any Member State. No other

court shall have such jurisdiction.’;

(103) Article 93 is replaced by the following:

_‘Article 93_

**Supplementary provisions on the jurisdiction of national courts other than EU design courts**

1. Within the Member State whose courts have jurisdiction under Article 79(1), the courts

which would have jurisdiction ratione loci and ratione materiae in the case of actions relating

to a national design right in that Member State shall have jurisdiction for actions relating to

EU designs other than the actions referred to in Article 81.

2. Actions relating to an EU design, other than the actions referred to in Article 81, for which

no court has jurisdiction pursuant to Article 79(1) and paragraph 1 of this Article may be

heard before the courts of the Member State in which the Office has its seat.’;

(104) in Article 96, paragraph 2 is replaced by the following:

‘2. A design protected as an EU design shall also be eligible for protection by copyright as

from the date on which the design was created or fixed in any form, provided that the

requirements of ~~Union~~ copyright law are met.’;

12714/23 ADD 2 BM/AF/ps 97
# ANNEX COMPET.1 EN

(105) Article 97 is replaced by the following:

_‘Article 97_

**Application of Regulation (EU) 2017/1001**

Unless otherwise provided in this Title, Articles 142 to 146, Articles 148 to 158, Article 162,

and Articles 165 to 177 of Regulation (EU) 2017/1001 shall apply to the Office with regard to

its tasks under this Regulation.’;

(106) Article 98 is amended as follows:

(a) the following paragraph 4a is inserted:

‘4a. Without prejudice to paragraph 4:

(a) any application or declaration relating to an application for a registered EU

design may be filed in the language used for filing the application for a

registered EU design or in the second language indicated by the applicant in

that application;

(b) any application or declaration relating to a registered EU design other than an

application for declaration of invalidity pursuant to Article 52 or a declaration

of surrender pursuant to Article 51 may be filed in one of the languages of the

Office.

However, when any of the forms provided by the Office as referred to in Article 66d is

used, such forms may be used in any of the official languages of the Union, provided

that the form is completed in one of the languages of the Office, as far as textual

elements are concerned.’;

12714/23 ADD 2 BM/AF/ps 98
# ANNEX COMPET.1 EN

(b) the following paragraphs 6 and 7 are added:

‘6. Without prejudice to paragraphs 3 and 5 and unless provided otherwise, in written

proceedings before the Office a party may use any language of the Office. If the

language chosen is not the language of the proceedings, the party shall supply a

translation into that language within 1 month of the date of the submission of the

original document. Where the applicant for a registered EU design is the sole party to

proceedings before the Office and the language used for the filing of the application for

the registered EU design is not one of the languages of the Office, the translation may

also be filed in the second language indicated by the applicant in the application.

7. The Executive Director shall determine the manner in which translations are to be

certified.’;

(107) the following Article 98a is inserted:

_‘Article 98a_

**Conferral of implementing powers regarding need and standards of translation**

The Commission shall adopt implementing acts specifying:

(a) the extent to which supporting documents to be used in written proceedings before the

Office may be filed in any language of the Union, and the need to supply a translation;

(b) the requisite standards of translations to be filed with the Office.

Those implementing acts shall be adopted in accordance with the examination procedure

’
referred to in Article 109(2) _._ ;

12714/23 ADD 2 BM/AF/ps 99
# ANNEX COMPET.1 EN

(108) Article 99 is replaced by the following:

_‘Article 99_

**Publication and entries in the Register**

1. All information the publication of which is prescribed by this Regulation or an act adopted

pursuant to this Regulation shall be published in all the official languages of the Union.

2. All entries in the Register shall be made in all the official languages of the Union.

3. In cases of doubt, the text in the language of the Office in which the application for the

registered EU design was filed shall be authentic. If the application was filed in an official

language of the Union other than one of the languages of the Office, the text in the second

language indicated by the applicant shall be authentic.’;

(109) Article 100 is replaced by the following:

_‘Article 100_

**Supplementary powers of the Executive Director**

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.’;

(110) Article 101 is deleted;

12714/23 ADD 2 BM/AF/ps 100
# ANNEX COMPET.1 EN

(111) Articles 102, 103 and 104 are replaced by the following:

_‘Article 102_

**Competence**

For taking decisions in connection with the procedures laid down in this Regulation the

following shall be competent:

(a) examiners;

(b) the Department in charge of the Register;

(c) Invalidity Divisions;

(d) Boards of Appeal;

(e) any other unit or person appointed by the Executive Director to that effect.

_Article 103_

**Examiners**

The examiners shall be responsible for taking decisions on behalf of the Office in relation to

an application for a registered EU design.

_Article 104_

**The Department in charge of the Register**

1. In addition to the powers conferred upon it by Regulation (EU) 2017/1001, the Department

in charge of the Register shall be responsible for taking decisions in respect of entries in the

Register under this Regulation and other decisions required by this Regulation which do not

fall within the competence of the examiners or an Invalidity Division.

12714/23 ADD 2 BM/AF/ps 101
# ANNEX COMPET.1 EN

2. The Department in charge of the Register shall also be responsible for maintaining the list

of professional representatives in design matters.’;

(112) in Article 105, the following paragraph 3 is added:

‘3. Decisions relating to costs or to procedures shall be taken by a single member of the

Invalidity Division.’;

(113) the following Article 105a is inserted:

_‘Article 105a_

**Conferral of implementing powers regarding decisions taken by a single member**

The Commission shall adopt implementing acts specifying the exact types of decisions that

are to be taken by a single member as referred to in Article 105(3). Those implementing acts

shall be adopted in accordance with the examination procedure referred to in Article 109(2).’;

(114) Article 106 is replaced by the following:

_‘Article 106_

**Boards of Appeal**

In addition to the powers conferred upon it by Article 165 of Regulation (EU) 2017/1001, the

Boards of Appeal shall be responsible for deciding on appeals of decisions of the instances of

the Office referred to in Article 102, points (a), (b) and (c), and, where appropriate, Article

102, point (e), in connection with the procedures laid down in this Regulation.’;

12714/23 ADD 2 BM/AF/ps 102
# ANNEX COMPET.1 EN

(115) the following Article -106a is inserted:

_‘Article -106a_

**Delegation of power regarding the Boards of Appeal**

The Commission is empowered to adopt delegated acts in accordance with Article 109a

specifying the details concerning the organisation of the Boards of Appeal in proceedings

relating to designs under this Regulation where such proceedings require a different

organisation than what is laid down in the delegated acts adopted pursuant to Article 168 of

Regulation (EU) 2017/1001.’;

(116) the following Section 3 is added in Title XI:

‘Section 3

**Fees and their payment**

_Article -106aa_

**Fees and charges and due date**

1. The Executive Director shall lay down the amount to be charged for any services rendered

by the Office other than those set out in Annex, as well as the amount to be charged for

publications issued by the Office. The amounts of charges shall be set in euros and shall be

published in the Official Journal of the Office. The amount of each charge shall not exceed

what is necessary to cover the costs of the specific service rendered by the Office.

12714/23 ADD 2 BM/AF/ps 103
# ANNEX COMPET.1 EN

2. Fees and charges in respect of which the due date is not specified in this Regulation shall be

due on the date of receipt of the request for the service for which the fee or the charge is

incurred.

With the consent of the Budget Committee, the Executive Director may determine which of

the services mentioned in the first subparagraph shall not be dependent upon the advance

payment of the corresponding fees or charges.

_Article -106ab_

**Payment of fees and charges**

1. Fees and charges due to the Office shall be paid by the methods of payment determined by

the Executive Director with the consent of the Budget Committee.

Determinations made pursuant to the first subparagraph shall be published in the Official

Journal of the Office. All payments shall be made in euros.

2. Payments through means of payment other than those referred to in paragraph 1 shall be

considered not to have been made and the amount which has been paid shall be refunded.

3. Payments shall contain the necessary information to enable the Office to establish

immediately the purpose of the payment.

4. If the purpose of the payment referred to in paragraph 2 cannot immediately be established,

the Office shall require the person making the payment to notify it in writing of that purpose

within a certain period. If the person does not comply with the request within that period, the

payment shall be considered not to have been made and the amount which has been paid shall

be refunded.

12714/23 ADD 2 BM/AF/ps 104
# ANNEX COMPET.1 EN

_Article -106ac_

**Deemed date of payment**

The Executive Director shall establish the date on which payments shall be considered to have

been made.

_Article -106ad_

**Insufficient payments and refund of insignificant amounts**

1. A time limit for payment shall be considered to have been observed only if the full amount

of the fee or charge has been paid in due time. If the fee or charge is not paid in full, the

amount which has been paid shall be refunded after the period for payment has expired.

2. The Office may, however, in so far as is possible within the time remaining before the end

of the period for payment, give the person making the payment the opportunity to pay the

amount lacking or, where this is considered justified, overlook any small amounts lacking,

without prejudice to the rights of the person making the payment.

3. With the consent of the Budget Committee, the Executive Director may waive action for

the enforced recovery of any sum due where the sum to be recovered is minimal or where

such recovery is too uncertain.

4. Where an excessive sum is paid to cover a fee or a charge, the excess shall not be refunded

if the amount is insignificant and the party concerned has not expressly requested a refund.

With the consent of the Budget Committee, the Executive Director may determine the amount

below which an excessive sum paid to cover a fee or a charge shall not be refunded.

Determinations pursuant to the second subparagraph shall be published in the Official Journal

of the Office.’;

12714/23 ADD 2 BM/AF/ps 105
# ANNEX COMPET.1 EN

(117) in Article 106d, paragraph 3 is replaced by the following:

‘3. The Office shall provide information on international registrations referred to in paragraph

2 in the form of an electronic link to the searchable database of international registrations of

designs maintained by the International Bureau.’;

(118) Article 106e is replaced by the following:

_‘Article 106e_

**Examination of grounds for refusal**

1. Where the Office finds, in the course of carrying out an examination of an international

registration, that the design for which protection is sought does not correspond to the

definition in Article 3, point (1), or that the design is contrary to public policy or to accepted

principles of morality, **or that the design constitutes an improper use of any of the items**

**listed in Article 6ter of the Paris Convention, or of badges, emblems and escutcheons**

**other than those covered by the said Article 6ter and which are of particular public**

**interest in a Member State,** it shall send to the International Bureau a notification of refusal

not later than 6 months from the date of publication of the international registration,

specifying the grounds for refusal pursuant to Article 12(2) of the Geneva Act.

2. Where the holder of the international registration is obliged to be represented before the

Office pursuant to Article 77(2), the notification referred to in paragraph 1 of this Article shall

contain a reference to the obligation of the holder to appoint a representative as referred to in

Article 78(1).

3. The Office shall specify a time limit by which the holder of the international registration

may renounce the international registration in respect of the Union, limit the international

registration to one or some of the industrial designs in respect of the Union or submit

observations, and, where appropriate, shall appoint a representative. The time period shall

start on the day on which the Office issues the ~~provisional~~ ~~**n**~~ **otification of** refusal.

12714/23 ADD 2 BM/AF/ps 106
# ANNEX COMPET.1 EN

4. If the holder fails to appoint a representative within the time limit referred to in paragraph

3, the Office shall refuse the ~~protection~~ ~~**e**~~ **ffects** of the international registration.

5. Where the holder submits observations that satisfy the Office within the specified time

limit, the Office shall withdraw the refusal and notify the International Bureau in accordance

with Article 12(4) of the Geneva Act. Where, pursuant to Article 12(2) of the Geneva Act, the

holder does not submit observations that satisfies the Office within the specified time limit,

the Office shall confirm the decision refusing protection for the international registration. That

decision shall be subject to appeal in accordance with Articles 66 to 72 of Regulation (EU)

2017/1001 in conjunction with Article 55(2) of this Regulation.

6. Where the holder renounces the international registration or limits the international

registration to one or some of the industrial designs in respect of the Union, the holder shall

inform the International Bureau by way of the recording procedure in accordance with Article

16(1), points (iv) and (v), of the Geneva Act.’;

(119) the following Article 106g is added in Title XIa:

_‘Article 106g_

**Renewals**

The international registration shall be renewed directly at the International Bureau in

compliance with Article 17 of the Geneva Act.’;

(120) _deleted_

(121) Article 107 is deleted;

(122) Article 108 is deleted;

12714/23 ADD 2 BM/AF/ps 107
# ANNEX COMPET.1 EN

(123) Article 109 is replaced by the following:

_‘Article 109_

**Committee Procedure**

1. The Commission shall be assisted by the Committee on Implementation Rules established

by Regulation (EU) 2017/1001. That committee shall be a committee within the meaning of

Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall

apply.’;

(124) the following Article 109a is inserted:

_‘Article 109a_

**Exercise of the delegation**

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions

laid down in this Article.

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].

3. The delegation of power referred to in Articles 47b, 53a, 55a, 64a, 65a, 66a, 66d, 66f, 66i,

67c, 78a and -106a may be revoked at any time by the European Parliament or by the Council.

A decision to revoke shall put an end to the delegation of the power specified in that decision.

It shall take effect the day following the publication of the decision in the _Official Journal of_

_the European Union_ or at a later date specified therein. It shall not affect the validity of any

delegated acts already in force.

12714/23 ADD 2 BM/AF/ps 108
# ANNEX COMPET.1 EN

4. Before adopting a delegated act, the Commission shall carry out consultations with experts,

including experts designated by each Member State in accordance with the principles laid

down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the

European Parliament and to the Council.

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 2 months at the initiative of the European Parliament

or of the Council.’;

(125) Article 110 is deleted;

(126) in Article 110a, paragraph 5, the second sentence is deleted;

(127) the following Article 110b is inserted:

_‘Article 110b_

**Evaluation**

1. By [OP 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.

2. The Commission shall forward the evaluation report together with its conclusions drawn on

the basis of that report to the European Parliament, the Council and the Management Board.

The findings of the evaluation shall be made public.’;

12714/23 ADD 2 BM/AF/ps 109
# ANNEX COMPET.1 EN

(128) in Article 111, paragraph 2 is replaced by the following:

‘2. Applications for registered EU designs may be filed at the Office from 1 April 2003.’;

(129) the Annex as set out in Annex I to this Regulation is added.

12714/23 ADD 2 BM/AF/ps 110
# ANNEX COMPET.1 EN

_Article 2_

Regulation (EC) No 2246/2002 is repealed.

References to the repealed Regulation shall be construed as references to Regulation (EC) No

6/2002 and shall be read in accordance with the correlation table set out in Annex II.

_Article 3_

This Regulation shall enter into force on the twentieth day following that of its publication in the

_Official Journal of the European Union_ .

~~Article 1, points … and Article 2~~ ~~**I**~~ **t** shall apply from [OP: please insert the date = the first day of the

month following 3 months after the date of entry into force of this Regulation]

**However,** Article 1, points (18), (19), (22), (24), (26)(b), (28)(b), (31), (34), (36), (37)(b), (38),

(39), (40), (43), (47), (49), (51), (53), (56), (58), (60), (61), (65), (67), (69), (71), (73), (75)(c), (76),

(80), (85), (93)(b), (106 ~~),~~ **and** (108 ~~), and (121)~~ shall apply from [OP please insert the date = the first

day of the month following 18 months after the date of entry into force of this Regulation].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

_For the European Parliament_ _For the Council_

_The President_ _The President_

12714/23 ADD 2 BM/AF/ps 111
# ANNEX COMPET.1 EN

**ANNEX I**

**‘ANNEX**

**Amounts of fees as referred to in Article -106aa(1)**

The fees to be paid to the Office under this Regulation shall be as follows (in EUR):

1. Application fee referred to in Article 36(4):

EUR ~~250~~ **350** .

2. Individual designation fee for an international registration referred to in Article 106c:

EUR 62 per design.

3. Fee for deferment of publication referred to in Article 36(4):

EUR 40.

4. Additional application fee in respect of each additional design included in a multiple

application referred to in Article 37(2):

EUR ~~125~~ **150** .

5. Additional fee for deferment of publication in respect of each additional design included in

a multiple application that is subject to deferment of publication referred to in Article

37(2):

EUR 20.

12714/23 ADD 2 BM/AF/ps 112
# ANNEX I COMPET.1 EN

6. Renewal fee referred to in Article 50d(1), (3) and (9):

(a) for the first period of renewal: EUR ~~70~~ **120** per design;

(b) for the second period of renewal: EUR ~~140~~ **180** per design;

(c) for the third period of renewal: EUR 280 per design;

(d) for the fourth period of renewal: EUR 560 per design.

7. Individual renewal fee for an international registration referred to in Article 106c:

(a) for the first period of renewal : EUR 62 per design;

(b) for the second period of renewal: EUR 62 per design;

(c) for the third period of renewal: EUR 62 per design;

(d) for the fourth period of renewal: EUR 62 per design.

8. Fee for late payment of the renewal fee referred to in Article 50d(3):

25% of the renewal fee.

9. Fee for the application for a declaration of invalidity referred to in Article 52(2):

EUR ~~320~~ **350** .

10. Fee for continuation of proceedings referred to in Article 67a(1):

EUR 400.

11. Fee for restitutio in integrum referred to in Article 67(3):

EUR 200.

12714/23 ADD 2 BM/AF/ps 113
# ANNEX I COMPET.1 EN

12. Fee for the registration of a licence or another right in respect of a registered EU design

referred to in Article 32a(1) and (2) or for the registration of a licence or another right in

respect of an application for an EU design referred to in Article 32a(1) and (2) and Article

34:

(a) for a grant of a licence: EUR 200 per design;

(b) for a transfer of a licence: EUR 200 per design;

(c) for a creation of a right in rem: EUR 200 per design;

(d) for a transfer of a right in rem: EUR 200 per design;

(e) for a levy of execution: EUR 200 per design;

up to a maximum of EUR 1000 where multiple requests are submitted in the same application

for registration of a licence or another right or at the same time.

13. Fee for the alteration of a registered EU design referred to in Article 50e(3):

EUR 200.

14. _deleted_

15. _deleted_

16. _deleted_

17. _deleted_

18. Fee for review of the determination of the procedural costs to be refunded referred to in

Article 70(7):

EUR 100.

12714/23 ADD 2 BM/AF/ps 114
# ANNEX I COMPET.1 EN

19. Appeal fee referred to in Article 68(1) of Regulation (EU) 2017/1001, which also applies

to appeals under this Regulation pursuant to Article 55(2):

EUR ~~720~~ **800** .’

12714/23 ADD 2 BM/AF/ps 115
# ANNEX I COMPET.1 EN

**ANNEX II**

**CORRELATION TABLE**

|Regulation (EC) No 2246/2002|Regulation (EC) No 6/2002|
|---|---|
|Article 1|**--**|
|Article 2|Article -106aa(1)|
|Article 3|Article -106aa(1)|
|Article 4|Article -106aa(2)|
|Article 5|Article -106ab(1)|
|Article 6|Article -106ab(3) and (4)|
|Article 7|Article -106ac|
|Article 8|Article -106ad(1) and (2)|
|Article 9|Article -106ad(3) and (4)|
|Annex|Annex|

12714/23 ADD 2 BM/AF/ps 116
# ANNEX II COMPET.1 EN