Source: EURLEX
Language: en
Format: md

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

**Interinstitutional File:**

**2022/0392(COD)**

**COVER NOTE**

**Brussels, 29 November 2022**
**(OR. en)**

**15400/22**

**PI 170**
**COMPET 968**
**MI 884**
**IND 520**
**IA 208**
**CODEC 1864**

From: Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director

date of receipt: 28 November 2022

To: Ms Thérèse BLANCHET, Secretary-General of the Council of the
European Union

No. Cion doc.: COM(2022) 667 final

Subject: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL on the legal protection of designs (recast)

Delegations will find attached document COM(2022) 667 final.

Encl.: COM(2022) 667 final

15400/22 AF/BM/ob

### COMPET.1 EN

EUROPEAN

COMMISSION

Brussels, 28.11.2022
COM(2022) 667 final

2022/0392 (COD)

Proposal for a

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on the legal protection of designs (recast)**

(Text with EEA relevance)

{SEC(2022) 422 final} - {SWD(2022) 367 final} - {SWD(2022) 368 final} 
{SWD(2022) 369 final}

## **EN EN**

**EXPLANATORY MEMORANDUM**

**1.** **CONTEXT** **OF** **THE** **PROPOSAL**

**•** **Reasons for and objectives of the proposal**

Industrial design rights protect the appearance of a product. Industrial design is what makes a
product appealing. Visual appeal is one of the key factors that influence consumers' choice of
one product over another. Well-designed products create a significant competitive advantage
for producers. To encourage innovation and the creation of new product design in the digital
age, there is an increasing need for accessible, future-proofed, effective and consistent legal
protection of design rights.

The design protection system in Europe is more than 20 years old. The laws of the Member
States relating to industrial designs were partially harmonised by Directive 98/71/EC of the
European Parliament and of the Council of 13 October 1998 (‘the Directive’). Alongside the
national design protection systems, Council Regulation (EC) No 6/2002 of 12 December 2001
(‘the Regulation’) set up a stand-alone system for the protection of unitary rights having equal
effect throughout the EU. The Regulation has only been amended once so far, in 2006, to give
effect to the EU’s accession to the international Hague registration system.

In addition, a transitional legal regime still exists in relation to design protection for repair
spare parts. As no agreement could be reached on that point, the Directive includes a ‘freezeplus’ clause allowing Member States to retain their existing laws on whether spare parts
should benefit from protection until amendments to the Directive are adopted on a proposal
from the Commission. They are however permitted to introduce changes to those laws only,
provided the purpose is to liberalise the spare parts market.

A proposal presented by the Commission in 2004 [1] to harmonise design protection of visible
spare parts by introducing a ‘repair clause’ into the Directive (as already contained in the
Regulation), did not receive sufficient support in the Council, despite overwhelming support
from the European Parliament [2] . The proposal was withdrawn in 2014.

In line with the Commission’s Better Regulation agenda [3] to review EU policies regularly, in
2014, the Commission launched an evaluation of the functioning of design protection systems
in the EU, involving a comprehensive economic and legal assessment, supported by a series
of studies. On 11 November 2020, the Council of the European Union adopted conclusions on
intellectual property policy and the revision of the industrial designs system in the EU [4] . The
Council called on the Commission to present proposals for the revision of the EU’s designs
legislation with a view to modernising the design protection systems and making design
protection more attractive for individual designers and businesses, especially small and
medium-sized enterprises (SMEs).

1 Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC
on the legal protection of designs, COM(2004) 582 (final).
2 European Parliament legislative resolution of 12 December 2007 on the proposal for a directive of the
European Parliament and of the Council amending Directive 98/71/EC on the legal protection of
designs (COM(2004)0582-C6-0119/2004-2004/0203(COD)).
3 Communication from the Commission: Better regulation for better results - An EU agenda,
COM(2015)215, European Commission, 19 May 2015, p. 4.
4 Council document 2020/C 379 I/01.

## EN 1 EN

Based on the final results of the evaluation [5], the Commission announced in its communication
of 25 November 2020 entitled ‘Making the most of the EU’s innovative potential – An
intellectual property action plan to support the EU’s recovery and resilience’ [6] that it would
revise EU legislation on design protection, following the successful reform of EU trade mark
legislation. On 25 June 2021, the Council adopted further conclusions on intellectual property
policy [7], urging the Commission to prioritise the timely presentation of a proposal as soon as
possible to revise and modernise the legislation on industrial designs. Furthermore, in its
supportive Opinion on the IP action plan, the European Parliament stressed the need for
revision of the now 20-year-old design protection system [8] .

Considered together as a package within the regulatory fitness programme (REFIT), the main
common objective of this initiative and of the parallel proposal for the amendment to the
Regulation is to promote design excellence, innovation and competitiveness in the EU. This is
to be done by ensuring that the design protection system is fit for purpose in the digital age
and becomes substantially more accessible and efficient for individual designers, SMEs and
design intensive industries in terms of lower costs and complexity, increased speed, greater
predictability and legal certainty.

Specifically, the present initiative to recast the Directive is driven by the following objectives:

–
modernising and improving the existing provisions of the Directive, by amending
outdated provisions, increasing legal certainty and clarifying design rights in terms of
scope and limitations;

–
achieving greater approximation of national design laws and procedures to
strengthen interoperability and complementarity with the Community design system,
by adding further substantive rules and introducing principal procedural rules into the
Directive in accordance with provisions contained in the Regulation.

–
completing the single market in repair spare parts by introducing a repair clause into
the Directive as already contained in the Regulation.

**•** **Consistency with existing policy provisions in the policy area**

This proposal repeals and replaces the existing Directive 98/71/EC. Together with the parallel
proposal for the amendment to Regulation (EC) No 6/2002, this proposal forms a coherent
package in implementation of the IP action plan, and with the purpose of modernising and
further harmonising the current EU legislation on design protection.

In order to achieve a greater alignment of national provisions on design protection with the
rules governing the successful EU design regime, this proposal involves introducing certain
provisions from Regulation (EC) No 6/2002 into the Directive, to be mirrored there and to
increase the degree of coherence between these two instruments. This proposal is also
consistent with Directive (EU) 2015/2436 of the European Parliament and of the Council to
approximate the laws of the Member States on trade marks. This applies in particular to the
provisions on counterfeit goods in transit and the provisions on procedures such as application
and filing date requirements and on administrative invalidity procedures.

5 SWD(2020) 264 final.
6 COM(2020) 760 final.
7 Council document 2021/C 247/02.
8 Report on an intellectual property action plan to support the EU’s recovery and resilience, as adopted by
the Legal Affairs Committee on 30 September 2021 (A9-0284/2021), para 32.

## EN 2 EN

**•** **Consistency with other EU policies**

This proposal is consistent with and complementary to Regulation (EU) 461/2010 (the Motor
Vehicle Block Exemption Reguation or ‘MVBER’) in the field of antitrust policy. The
proposed liberalisation of the spare parts market may help that antitrust regime to protect
effective competition in the entire market for vehicle spare parts, service and repair and thus
achieve its full benefits for businesses and consumers in the automotive aftermarket. The
proposal is also consistent with and complements efforts put forward in the sustainable
product initiative aimed at promoting repairs and the circular economy.

**2.** **LEGAL** **BASIS,** **SUBSIDIARITY** **AND** **PROPORTIONALITY**

**•** **Legal basis**

The proposal is based on Article 114(1) of the Treaty on the Functioning of the European
Union (TFEU) empowering the European Parliament and the Council to adopt measures for
the approximation of the provisions laid down by law, regulation or administrative action in
Member States, which have as their object the establishment and functioning of the internal
market.

**•** **Subsidiarity (for non-exclusive competence)**

The problems identified relate to the significant divergences of the regulatory framework,
which either do not allow, or notably distort, a level playing field for EU companies with
further negative consequences for their competitiveness and that of the EU as a whole (e.g. for
spare parts). It is therefore advisable to adopt measures that can improve the relevant
conditions for the functioning of the single market. Such measures aimed at extending the
current level of approximation through the Directive can only be taken at EU level, not least,
given the need to ensure consistency with the Community design system.

It must be considered in this context that the Community design system is embedded in the
European design system which is built on the principle of coexistence and complementarity
between national and EU-wide design protection. While the Regulation provides a complete
system where all issues of substantive and procedural law are provided for, the current level
of legislative approximation reflected in the Directive is limited to selected provisions of
substantive law. To ensure effective and sustainable coexistence and complementarity
between the components involved, it is necessary to create an overall harmonious design
protection system in Europe with similar substantive rules and at least principal procedural
provisions which are compatible. As regards the issue of design protection for spare parts
specifically, it needs to be added that the completion of the internal market for spare parts can
only be achieved at EU level. Over 20 years of experience with the freeze-plus clause in the
Directive have shown no strong trend towards harmonisation among Member States on a
voluntary basis (despite the introduction of a repair clause in a few more Member States) or
through self-regulation by the industry.

Action at EU level would make the design protection system in Europe as a whole
substantially more accessible and efficient for businesses, in particular SMEs and individual
designers. It would further close the remaining gaps in the single market for repair spare parts
to the substantial benefit of consumers, who would be able to choose between competing parts
at lower prices.

## EN 3 EN

**•** **Proportionality**

The addition of targeted harmonisation, particularly for registration and invalidity procedures,
focuses on principal provisions in procedural areas identified by stakeholders as being in
greatest need of alignment with relevant provisions of the Regulation. The impact assessment
also looked at the option of a full-scale harmonisation of all design provisions (option 4.2) but
considered it disproportionate to the actual needs (see Section 6.4 of the impact assessment).

As regards the issue of spare parts protection, the insertion of a repair clause by means of
preferred option 1.2 is considered to be most proportional way of completing the single
market on the principle of liberalisation. Such action at EU level does not incur any
immediate costs. Aftermarket liberalisation requires legal acts only in those Member States
that currently protect spare parts, to lift this protection. It therefore incurs the lowest
administrative costs of all options considered. Furthermore, by providing for a transitional
period of 10 years during which existing design rights will continue to be protected, vehicle
manufacturers will be allowed to adjust their market conduct with minimum risk or disruption
to investment and innovation. This option is also adequately prudent when it comes to the
issue of fundamental rights and international obligations (see Section 8.1 of the impact
assessment).

**•** **Choice of the instrument**

This proposal is intended to provide for targeted amendments to Directive 98/71/EC to
address certain shortcomings. Since the proposed instrument is to recast the Directive, the
same legal instrument is the most appropriate.

**3.** **RESULTS** **OF** **EX** **POST** **EVALUATIONS,** **STAKEHOLDER**
**CONSULTATIONS** **AND** **IMPACT** **ASSESSMENTS**

**•** **Ex post evaluations/fitness checks of existing legislation**

The Commission carried out an overall evaluation of the current Directive and Regulation,
which was published in November 2020 [9] . It concluded that the EU legislation on design
protection had met the objectives and was still largely fit for purpose.

However, with respect to Directive 98/71/EC, the evaluation identified certain shortcomings,
in particular a still strongly fragmented spare parts market as consequence of the nonharmonisation of provisions on design protection for component parts used for the repair of
complex products. This was found to cause considerable legal uncertainty and to severely
distort competition while adding costs for consumers. The evaluation also found
inconsistencies both between the Member States’ design laws and in relation to the
Regulation regarding design registration and invalidity procedures. These have a negative
impact on the interoperability of the design protection systems in the EU.

Based on the findings of the evaluation, the European Commission conducted an impact
assessment and decided afterwards to revise the legislation. The various steps of the impact
assessment, from the definition of problems and their drivers to the identification of
objectives and possible policy options, relied on the findings of the evaluation report.

9 SWD(2020) 264 final.

## EN 4 EN

**•** **Stakeholder consultations**

A comprehensive first public consultation was conducted between 18 December 2018 and 30
April 2019 [10] with the aim of gathering sufficient stakeholder evidence and views in order to
support the evaluation of the EU’s designs legislation and establishing the degree to which
that legislation works as intended and can still be considered fit for purpose. Almost two
thirds of the respondents considered that the design protection system in the EU (national
design system under the Directive and the Community design regime altogether) works well.
At the same time, almost half of the respondents pointed to unintended consequences or
shortcomings of the Directive and/or the Regulation.

In addition to the extensive consultation for the evaluation, the Commission carried out a
second public consultation between 29 April and 22 July 2021 [11] to obtain additional
stakeholder evidence and views on selected issues and potential options and their impacts, to
support the review of the legislation on designs.

The shortcomings identified in the consultations have been taken into account and addressed
in the proposal.

**•** **Collection and use of expertise**

The impact assessment on the revision of Directive 98/71/EC and Regulation (EC) No 6/2002
drew on two major external studies, considering both economic [12] and legal [13] aspects of the
functioning of design protection systems in the EU. In addition, on the issue of spare parts
protection specifically, the impact assessment was supported by two further studies on the
effect of protection on price and price dispersion [14] and on the market structure of motor
vehicle spare parts in the EU [15] . Further information in support was drawn from close
collaboration with the European Union Intellectual Property Office (EUIPO) and several
EUIPO studies and reports, as well as other available studies and data collections produced by
national or international public authorities, including national IP offices, academics or other
stakeholders.

**•** **Impact assessment**

As this proposal is presented in a package alongside the proposal to revise Regulation (EC)
No 6/2002, the Commission conducted a joint impact assessment for this proposal and the
parallel proposal for the amendment to Regulation (EC) No 6/2002 [16] . The impact assessment
was submitted to the Regulatory Scrutiny Board on 27 October and received a positive
opinion from the Board on 26 November 2021. The final impact assessment takes into
account comments contained in that opinion.

In the impact assessment the Commission considered two main problems:

10 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-3527248/public-consultation_en
11 https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12609-Intellectual-propertyreview-of-EU-rules-on-industrial-design-Design-Directive-/public-consultation_en
12 https://ec.europa.eu/growth/content/economic-review-industrial-design-europe-0_en
13 https://ec.europa.eu/growth/content/legal-review-industrial-design-protection-europe-0_en
14 Herz, B., & Mejer, M. (2020). The effect of design protection on price and price dispersion: Evidence
from automotive spare parts.
15 Nikolic, Z. (September, 2021). Market structure of motor vehicle visible spare parts in the EU. Study
commissioned to Wolk After Sales Experts GmbH. Available at https://op.europa.eu/s/sMA8
16 Add link to IA and Executive summary

## EN 5 EN

1. The disruption in intra-EU trade and barriers to competition in some Member States with
regard to repair spare parts.

2. The discouragement of businesses, in particular, SMEs and individual designers from
seeking for registered design protection at EU or national level - due to the high costs,
burdens and delays in obtaining protection and the limited predictability around it.

Some aspects of the second problem (outdated procedures for the registration of registered
Community designs (RCDs) and sub-optimal fees to be paid for the RCD), are due to be
addressed in the parallel revision of Regulation (EC) No 6/2002, but the spare parts issue
(first problem) and the issue of divergent (procedural) provisions must be dealt with in the
revision of Directive 98/71/EC.

The **following options** were considered **for resolving the spare parts issue** and tackling the
objective of opening up the spare parts aftermarket for competition:

    - **Option 1.1: Full liberalisation for all designs, i.e. the market of ‘must-match’**
**spare parts should be opened for competition across the entire EU, extending it**
**to both existing and new designs** . This option would involve inserting into the
Directive a ‘repair clause’, as contained in Article 110(1) of Regulation (EC) No
6/2002, and allowing the identical reproduction of protected parts of complex
products for the purpose of repair. The inserted repair clause would have legal effect
for both the future and the past (i.e. be applicable to designs granted before and after
its entry into force).

    - **Option 1.2: Instant full liberalisation for new designs followed by full**
**liberalisation for old designs after transitional 10-year period** . This option would
involve the same changes as the previous option, except that the repair clause to be
inserted into the Directive would have instant legal effect only for the future (i.e. be
applicable only to designs applied for after entry into force). Designs already granted
before entry into force should continue to be protected for a transitional period of 10

years.

    - **Option 1.3: Full liberalisation for new designs** . As in the previous option, in this
option, the repair clause to be inserted into the Directive would have legal effect only
for the future. Existing design rights granted before the entry into force would not
change and could thus be protected for up to 25 years.

The **following options** were considered **for resolving the issue of divergent procedural**
**rules** and enhancing complementarity and interoperability between the Community and
national design systems:

    - **Option 4.1: Partial further approximation of national laws and their coherence**
**with the RCD system.** This option would involve adding provisions to the Directive
on selected design law aspects not yet addressed in therein and identified by
stakeholders as being in greatest need of harmonisation, in particular procedures, in
line with relevant provisions in Regulation (EC) No 6/2002. The addition of principal
procedural rules to the Directive should be combined with the further alignment of a
few selected substantive law aspects (apart from the spare parts issue) in accordance
with the provisions of Regulation (EC) No 6/2002.

## EN 6 EN

    - **Option 4.2: Full approximation of national design laws and procedures.** This
option would cover option 4.1 but also include remaining aspects of substantive
design laws and procedures which are part of Regulation (EC) No 6/2002 but not of
the Directive.

In this context it was also assessed how such further approximation could be pursued: on a
voluntary basis ( **sub-options 4.1a** and **4.2a** ), or on a mandatory basis, i.e. driven by an EU
legislative measure requiring Member States to align their design laws ( **sub-options 4.1b** and
**4.2b** ).

Based on the outcome of the impact assessment, the preferred set of options includes **option**
**1.2** and **option 4.1b** .

**Option 1.2** promises, after the 10-year transition period, to bring potential savings to
consumers in markets where currently no repair clause is in place ranging from EUR 340
million and to EUR 544 million annually due to price competition (during the 10-year
transition period, benefits will increase by EUR 4 m to 13 m a year to reach EUR 40 m to
EUR 130 m in the last year). During the 10-year transition period, full liberalisation for new
designs will promote competition and market entry in collision parts for new cars. After the
10-year transition period, both original equipment suppliers (OESs) and independent suppliers
(non-OESs) will benefit from significantly greater operational freedom, which will allow
them to strengthen their market position and to consolidate.

**Option 4.1b** will make it easier and less costly for firms and designers to obtain design
protection across Member States, in particular by adding principal procedural rules into the
Directive in line with the Regulation. This will further increase predictability, help reduce
costs in managing multinational IP portfolios, and make it easier and cheaper to have invalid
designs removed from the register. Such further approximation of laws will also have
additional positive impacts on cooperation between the EUIPO and national IP offices under
the existing framework laid down in Article 152 of Regulation (EU) 2017/1001 in the
European Union trade mark.

**•** **Regulatory fitness and simplification**

This proposal to recast Directive 98/71/EC and the parallel proposal for the amendment to
Regulation (EC) No 6/2002 was included in Annex II to the 2022 Commission work
programme [17] . They are therefore part of the regulatory fitness programme (REFIT).

This proposal aims to update design protection systems in the EU for the digital age and make
them more accessible and efficient for applicants and those seeking to cancel invalid designs.
In terms of digitalisation, the proposed harmonisation of the requirements for the
representation of designs will allow applicants to reproduce their designs anywhere in a clear
and precise way, using generally available technology. This will facilitate in particular the
filing of new digital designs. In terms of simplification, proposed further harmonisation will
allow businesses to file multiple applications anywhere at national level by combining several
designs in one application, and without being restricted to products of the same nature. While
this will clearly make life easier for design applicants, benefits could not be quantified as they
will essentially depend on fees set at national level. In addition, the abandonment of ex-officio
examination of prior art at national level (to provide for the same level of accessibility to
protection as at EU level) promises to significantly reduce the duration of registration

17 –
2022 Commission Work Programme key documents | European Commission (europa.eu)

## EN 7 EN

proceedings in those Member Stares where it is still carried out. Businesses will thus be able
to obtain protection much faster and at lower costs. Furthermore, the (mandatory) introduction
of office-based invalidity proceedings to get an invalid design registration cancelled without
having to go to court should be clearly beneficial for both competitors and right holders as
being less complex and less costly.

This proposal also aims to complete the single market in repair spare parts by introducing a
repair clause exempting those parts from design protection. The full liberalisation of the spare
parts market promises to bring substantial benefits to consumers in terms of greater choice
and lower prices.

Relevant cost savings are specified and summarised in Table 8.1 of the impact assessment.

**•** **Fundamental rights**

The initiative should improve the possibilities for designers to protect their rights, with a
positive impact for the fundamental rights such as the right to property and the right to an
effective remedy. With a view to making the design protection system in the EU more
balanced, it also aims to provide for a more robust catalogue of limitations of the design rights
and the insertion of a repair clause, taking account of fairness- and competition-based
considerations.

**4.** **BUDGETARY** **IMPLICATIONS**

This proposal will not have an impact on the European Union budget and is therefore not
accompanied by the financial statement provided for under Article 35 of the Financial
Regulation (Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the
Council of 18 July 2018 on the financial rules applicable to the general budget of the Union
and repealing Regulation (EU, Euratom) No 966/2012).

**5.** **OTHER** **ELEMENTS**

**•** **Implementation plans and monitoring, evaluation and reporting arrangements**

The Commission will be monitoring the EU market for spare parts to see whether introducing
an EU-wide repair clause does indeed result in the savings predicted. It will also consider the
launch of specific studies and surveys to follow developments in pricing and customer
behaviour in particular.

As for further approximation of national laws, the Commission will scrutinise Member States’
notifications of transposing measures and react to any delays or inconsistencies. A set of
pertinent indicators as referred to in Section 9 of the impact assessment will be considered for
evaluation when all rules are properly transposed.

**•** **Explanatory documents (for directives)**

Explanatory documents are not required as the provisions of the Directive are not of a
complex nature for their target recipients.

## EN 8 EN

**•** **Detailed explanation of the specific provisions of the proposal**

As this is a proposal for the recast of Directive 98/71/EC, the detailed explanation below
focuses solely on new provisions or provisions that are to be amended.

Chapter 1: General provisions

     - Definition of design and product (Article 2)

Updated and more detailed definitions of the product and design notions are proposed to be
part of the general provisions. This update, clarification and broadening of the current
definitions aim to future-proof the proposal for a recast Directive against technological
advances and provide greater legal certainty and transparency as to the eligible subject matter
of design protection.

Chapter 2: Substantive law on designs

     - Design protection through registration only (Article 3)

The current Directive permits Member States to provide design protection also in unregistered
form [18] . It is proposed to remove that discretion by limiting design protection to registered
protection only. Unitary protection in the form of the unregistered EU design is available such
that there is no actual need for parallel (potentially diverging) unregistered protection.

    - Commencement of protection (Article 10)

To iron out existing inconsistencies, it is clarified that design protection commences only with
the registration in the register.

     - Right to a registered design (Articles 11 and 12)

New provisions on the right to the registered design, including presumption of ownership, are
proposed, to be added in line with Articles 14 and 17 of Regulation (EC) No 6/2002.

     - Grounds for non-registrability and scope of substantive examination (Articles 13 and 29)

In order to fully align the scope of substantive examination across the EU with that carried out
at EUIPO level (Article 47 of Regulation (EC) No 6/2002), the grounds for non-registrability
should be set out in an exhaustive manner, ensuring that the procedure for obtaining a
registered design presents the minimum cost and difficulty to applicants, as with the EUIPO.

     - Grounds for invalidity (Article 14)

It is proposed to convert optional provisions into mandatory ones to increase predictability
and consistency with the EU design system.

     - Object of protection (Article 15)

For greater legal certainty in relation to the ‘visibility requirement’, a specific provision is
proposed, to be added to the Directive (in addition to recital 17) whereby design protection is

18 There is however no Member State providing for such protection in unregistered form.

## EN 9 EN

conferred on those features of appearance (only), which are shown visibly in the application
for registration.

It is further clarified (in new recital 18) that design features otherwise do not need to be
visible at any particular time or in any particular situation to attract protection, except for
component parts being not visible during normal use of a complex product.

     - Scope of rights conferred by a registered design (Article 16)

To enable design right holders to more effectively address the challenges brought by the
increased deployment of 3D printing technologies, it is proposed to adjust the scope of design
rights accordingly.

In addition, following the reform of the EU legislation on trade marks (new Article 10(4) of
Directive (EU) 2015/2436), it is considered important, for the effective fight against everincreasing counterfeiting activities, to also add to the legal framework on industrial designs a
corresponding provision permitting right holders to prevent counterfeit products from
transiting EU territory or from being placed in another customs situation without being
released for free circulation there.

     - Presumption of validity (Article 17)

For the sake of greater consistency with Regulation (EC) No 6/2002 (Article 85(1)), it is
proposed that a provision on presumption of validity be added also to the Directive.

     - Limitation of the rights conferred (Article 18)

In order to ensure a better balance of legitimate interests involved and taking account of the
case law of the Court of Justice of the European Union (CJEU) [19], it is proposed to
complement the list of permissible uses by the addition of referential use and critique and
parody.

     - Repair clause (Article 19)

In order to eventually terminate the existing transitional regime and complete the single
market in repair spare parts, it is proposed to insert into the Directive a repair clause similar to
that already contained in Article 110 of Regulation (EC) No 6/2002. This clause is explicitly
limited to (form-dependent) ‘must match’ parts of complex products, to make allowance for
the judgment of the CJEU in the Acacia case [20] .

In addition, it should be made explicit that the repair clause can be used as a defence against
infringement claims only if consumers are duly informed of the origin of the product to be
used for the purpose of the repair of the complex product.

To address the legitimate interests of the holders of existing design rights, the repair clause
would have (unlimited) instant legal effect only for the future, while safeguarding protection
of existing rights for a transitional 10-year period.

     - Prior use defence (Article 21)

19 Judgment in Joined Cases C-24/16 and C-25/16, _Nintendo_, ECLI:EU:C:2017:724.
20 Judgment in Joined Cases C-397/16 and C-435/16, Acacia, ECLI:EU:C:2017:992.

## EN 10 EN

A right of prior use is introduced in line with Article 22 of Regulation (EC) No 6/2002. This
defence against infringement will protect those who invested in good faith in a product design
before the priority date of a registered design and therefore have a legitimate interest in
marketing the products even if their appearance falls within the scope of protection of the
registered design.

     - Principle of cumulation (Article 23)

The principle of cumulation of design and copyright protection is maintained, while taking
account of the fact that, since the original legislation was adopted, harmonisation has
progressed in the copyright area.

     - Design notice (Article 24)

A design notice is made available to holders of registered designs permitting them to inform
the public about the registration of a design.

Chapter 3: Procedures

A set of principal rules on procedures are added to the Directive in line with Directive (EU)
2015/2436 to approximate the laws of the Member States on trade marks.

     - Requirements of representation (Article 26)

To ensure that the representation of designs is subject to the same future-proofed requirements
for clear and precise representation of designs throughout the EU, a set of detailed provisions
is proposed, to be added to the Directive.

     - Multiple applications (Article 27)

It is proposed to provide for the possibility to combine several designs in one application as
currently also provided for by Article 37 of Regulation (EC) No 6/2002, and without requiring
that the combined designs concern products of the same class of the Locarno Classification, as
also proposed in the corresponding amendment to the Regulation.

     - Deferment of publication (Article 30)

In line with Article 50 of Regulation (EC) No 6/2002, it is proposed to provide for the option
of requesting deferment of the publication of a design application for a period of 30 months
from the date of filing the application.

     - Administrative invalidity proceedings (Article 31)

As introduced for trade mark cancellation proceedings under Article 45 of Directive (EU)
2015/2436, Member States should provide for an administrative procedure for challenging the
validity of a design registration to be handled by their intellectual property offices. In some
Member States, the validity of a registered design can be contested only in court proceedings.
These systems are more cumbersome and expensive.

## EN 11 EN

 98/71/EC (adapted)
2022/0392 (COD)

Proposal for a

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on the legal protection of designs (recast)**

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty ~~establishing~~  on the functioning of  the European
~~Community~~  Union,  and in particular Article ~~100a~~  114(1)  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],

Acting in accordance with the ordinary legislative procedure,

Whereas:

 98/71/EC recital 1 (adapted)

~~Whereas the objectives of the Community, as laid down in the Treaty, include laying the~~
~~foundations of an ever closer union among the peoples of Europe, fostering closer relations~~
~~between Member States of the Community, and ensuring the economic and social progress of~~
~~the Community countries by common action to eliminate the barriers which divide Europe;~~

1 OJ C […], […], p. […].

## EN 12 EN

~~whereas to that end the Treaty provides for the establishment of an internal market~~
~~characterised by the abolition of obstacles to the free movement of goods and also for the~~
~~institution of a system ensuring that competition in the internal market is not distorted;~~
~~whereas an approximation of the laws of the Member States on the legal protection of designs~~
~~would further those objectives;~~

 98/71/EC recital 2 (adapted)

~~Whereas the differences in the legal protection of designs offered by the legislation of the~~
~~Member States directly affect the establishment and functioning of the internal market as~~
~~regards goods embodying designs; whereas such differences can distort competition within~~
~~the internal market;~~

 98/71/EC recital 3 (adapted)

~~Whereas it is therefore necessary for the smooth functioning of the internal market to~~
~~approximate the design protection laws of the Member States;~~

 98/71/EC recital 4 (adapted)

~~Whereas, in doing so, it is important to take into consideration the solutions and the~~
~~advantages with which the Community design system will provide undertakings wishing to~~
~~acquire design rights;~~

 98/71/EC recital 5 (adapted)

~~Whereas it is unnecessary to undertake a full-scale approximation of the design laws of the~~
~~Member States, and it will be sufficient if approximation is limited to those national~~
~~provisions of law which most directly affect the functioning of the internal market; whereas~~
~~provisions on sanctions, remedies and enforcement should be left to national law; whereas the~~
~~objectives of this limited approximation cannot be sufficiently achieved by the Member States~~
~~acting alone;~~

 98/71/EC recital 6 (adapted)

~~Whereas Member States should accordingly remain free to fix the procedural provisions~~
~~concerning registration, renewal and invalidation of design rights and provisions concerning~~
~~the effects of such invalidity;~~

## EN 13 EN

## EN 14 EN

 98/71/EC recital 7 (adapted)

(11) This Directive does not exclude the application to designs of national or  Union 
~~Community~~ legislation providing for protection other than that conferred by
registration or publication as design, such as legislation relating to unregistered design
rights, trade marks, patents and utility models, unfair competition or civil liability.

(12) ~~Whereas, in the absence of harmonisation of copyright law, Ii~~ t is important to establish
the principle of cumulation of protection under specific registered design protection

(13) The attainment of the objectives of the internal market requires that the conditions for
obtaining a registered design right be identical in all the Member States.

## EN 15 EN

(14) To ~~that~~  this  end it is necessary to give ~~a~~ unitary ~~definition~~  definitions  of

(15) ~~and~~  Furthermore, there is a need for a unitary definition  of the requirements ~~as~~
~~to~~  regarding  novelty and individual character with which registered design
rights must comply.

 98/71/EC recital 10 (adapted)

(16) ~~It is essential,~~ ~~iI~~ n order to facilitate the free movement of goods,  it is necessary 
to ensure in principle that registered design rights confer upon the right holder
equivalent protection in all Member States.

 98/71/EC recital 11

(17) Protection is conferred by way of registration upon the right holder for those design
features of a product, in whole or in part, which are shown visibly in an application
and made available to the public by way of publication or consultation of the relevant
file.

which are not visible when the part is mounted, or which would not, in themselves,
fulfil the requirements as to novelty and individual character.  Therefore, those 
features of design  of component parts of a complex product  which are excluded
from protection for these reasons should not be taken into consideration for the
purpose of assessing whether other features of the design fulfil the requirements for
protection.

## EN 16 EN

(20) The assessment as to whether a design has individual character should be based on
whether the overall impression produced on an informed user viewing the design
~~clearly~~ differs from that produced on him by  any other design that forms part of 
the existing design corpus, taking into consideration the nature of the product to which
the design is applied or in which it is incorporated, and in particular the industrial
sector to which it belongs and the degree of freedom of the designer in developing the
design.

(21) Technological innovation should not be hampered by granting design protection to
 designs consisting exclusively of  features  or the arrangement of features 
dictated solely by a technical function. It is understood that this does not entail that a

(22) Likewise, the interoperability of products of different makes should not be hindered by

 98/71/EC recital 15

(23) The mechanical fittings of modular products may nevertheless constitute an important
element of the innovative characteristics of modular products and present a major
marketing asset and therefore should be eligible for protection.

## EN 17 EN

 98/71/EC recital 16 (adapted)

(24) A design right ~~shall~~  should  not subsist in a design which is contrary to public
policy or to accepted principles of morality. This Directive does not constitute a
harmonisation of national concepts of public policy or accepted principles of morality.

 98/71/EC recital 17

(25) It is fundamental for the smooth functioning of the internal market to unify the term of
protection afforded by registered design rights.

 98/71/EC recital 18 (adapted)

(26) The provisions of this Directive are without prejudice to the application of the
competition rules under Articles  101  ~~85~~ and  102  ~~86~~ of the Treaty  on
the Functioning of the European Union  .

 98/71/EC recital 19 (adapted)

~~Whereas the rapid adoption of this Directive has become a matter of urgency for a number of~~
~~industrial sectors; whereas full-scale approximation of the laws of the Member States on 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 product incorporating the design or to which the~~
~~design is applied constitutes a component part of a complex product upon whose appearance~~
~~the protected design is dependent, cannot be introduced at the present stage; whereas the lack~~
~~of full-scale approximation of the laws of the Member States on the use of protected designs~~
~~for such repair of a complex product should not constitute an obstacle to the approximation of~~
~~those other national provisions of design law which most directly affect the functioning of the~~
~~internal market; whereas for this reason Member States should in the meantime maintain in~~
~~force any provisions in conformity with the Treaty relating to the use of the design of a~~
~~component part used for the purpose of the repair of a complex product so as to restore its~~
~~original appearance, or, if they introduce any new provisions relating to such use, the purpose~~
~~of these provisions should be only to liberalise the market in such parts; whereas those~~
~~Member States which, on the date of entry into force of this Directive, do not provide for~~
~~protection for designs of component parts are not required to introduce registration of designs~~
~~for such parts; whereas three years after the implementation date the Commission should~~
~~submit an analysis of the consequences of the provisions of this Directive for Community~~
~~industry, for consumers, for competition and for the functioning of the internal market;~~
~~whereas, in respect of component parts of complex products, the analysis should, in particular,~~
~~consider harmonisation on the basis of possible options, including a remuneration system and~~
~~a limited term of exclusivity; whereas, at the latest one year after the submission of its~~
~~analysis, the Commission should, after consultation with the parties most affected, propose to~~
~~the European Parliament and the Council any changes to this Directive needed to complete~~
~~the internal market in respect of component parts of complex products, and any other changes~~
~~which it considers necessary;~~

## EN 18 EN

 98/71/EC recital 20 (adapted)

~~Whereas the transitional provision in Article 14 concerning the design of a component part~~
~~used for the purpose of the repair of a complex product so as to restore its original appearance~~
~~is in no case to be construed as constituting an obstacle to the free movement of a product~~
~~which constitutes such a component part;~~

in all the Member States ~~, must~~  should  be exhaustively enumerated.

## EN 19 EN

## EN 20 EN

## EN 21 EN

 98/71/EC (adapted)

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER 1

 **GENERAL PROVISIONS** 

## EN 22 EN

_Article 1_ ~~_2_~~

**Scope** ~~**of application**~~

1. This Directive ~~shall apply~~  applies  to:

(a) design rights registered with the central industrial property offices of the
Member States;

(b) design rights registered at the Benelux ~~Design~~ Office  for Intellectual
Property  ;

(c) design rights registered under international arrangements which have effect in a
Member State;

(d) applications for  the  design rights referred to under points (a), (b) and
(c).

2. For the purpose of this Directive, design registration shall also comprise the
publication following filing of the design with the industrial property office of a
Member State in which such publication has the effect of bringing a design right into
existence.

_Article 2_ ~~_1_~~

**Definitions**

For the ~~purpose~~  purposes  of this Directive , the following definitions apply  :

(2) ‘register’ means the register of designs kept by an office;

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

the features ~~of,~~ in particular, the lines, contours, colours, shape, texture, ~~and/or~~

(4 ~~b)~~ ‘product’ means any industrial or handicraft item  other than computer

## EN 23 EN

assembled into a complex product; 

~~computer programs~~ ;

(5 ~~c)~~ ‘complex product’ means a product ~~which~~  that  is composed of multiple

components which can be replaced permitting disassembly and reassembly of
the product.

CHAPTER 2

 **SUBSTANTIVE LAW ON DESIGNS** 

_Article 3_

**Protection requirements**

1. Member States shall protect designs  solely through the  ~~by~~ registration  of
the designs , and shall confer exclusive rights upon their holders in accordance
with the provisions of this Directive.

2. A design shall be protected by a design right ~~to the extent that~~  if  it is new and
has individual character.

3. A design applied to or incorporated in a product which constitutes a component part
of a complex product shall only be considered to be new and to have individual
character:

(a) if the component part, once it has been incorporated into the complex product,
remains visible during normal use of the latter; ~~,~~ and

(b) to the extent that those visible features of the component part fulfil in
themselves the requirements as to novelty and individual character.

4. ‘Normal use’ within the meaning of paragraph (3), point (a), shall mean use by the
end user, excluding maintenance, servicing or repair work.

_Article 4_

**Novelty**

A design shall be considered new if no identical design has been made available to the public
before the date of filing of the application for registration or, if priority is claimed, the date of
priority. Designs shall be deemed to be identical if their features differ only in immaterial
details.

## EN 24 EN

_Article 5_

**Individual character**

1. A design shall be considered to have individual character if the overall impression it
produces on the informed user differs from the overall impression produced on such
a user by any design which has been made available to the public before the date of
filing of the application for registration or, if priority is claimed, the date of priority.

2. In assessing individual character, the degree of freedom of the designer in developing
the design shall be taken into consideration.

_Article 6_

**Disclosure**

1. For the purpose of applying Articles 4 and 5, a design shall be deemed to have been
made available to the public if it has been published following registration or
otherwise, or exhibited, used in trade or otherwise disclosed, except where these
events could not reasonably have become known in the normal course of business to
the circles specialised in the sector concerned, operating within the  Union 
~~Community,~~ before the date of filing of the application for registration or, if priority
is claimed, the date of priority. The design shall not, however, be deemed to have
been made available to the public for the sole reason that it has been disclosed to a
third person under explicit or implicit conditions of confidentiality.

2. A disclosure shall not be taken into consideration for the purpose of applying

registered design right of a Member State, has been made available to the public:

(a) by the designer, his successor in title, or a third person as a result of
information provided or action taken by the designer, or his successor in title;
and

(b) during the 12-month period preceding the date of filing of the application or, if
priority is claimed, the date of priority.

3. Paragraph 2 shall also apply if the design has been made available to the public as a
consequence of an abuse in relation to the designer or his successor in title.

_Article 7_

**Designs dictated by their technical function and designs of interconnections**

1. A design right shall not subsist in features of appearance of a product which are
solely dictated by its technical function.

2. A design right shall not subsist in features of appearance of a product which must
necessarily be reproduced in their exact form and dimensions in order to permit the
product in which the design is incorporated or to which it is applied to be

## EN 25 EN

mechanically connected to or placed in, around or against another product so that
either product may perform its function.

3. Notwithstanding paragraph 2, a design right shall, under the conditions set out in
Articles 4 and 5, subsist in a design serving the purpose of allowing multiple
assembly or connection of mutually interchangeable products within a modular
system.

_Article 8_

**Designs contrary to public policy or morality**

A design right shall not subsist in a design which is contrary to public policy or to accepted
principles of morality.

_Article 9_

**Scope of protection**

1. The scope of the protection conferred by a design right shall include any design
which does not produce on the informed user a different overall impression.

2. In assessing the scope of protection, the degree of freedom of the designer in
developing his design shall be taken into consideration.

_Article 10_

 **Commencement and**  ~~**tTe**~~ **rm of protection**

~~Upon registration,~~  1. Protection by a registered design right of  a design which meets
the requirements of Article 3(2) shall ~~be protected by a design right~~  arise with registration
by the office. 

 2. A registered design shall be registered  for ~~one or more periods~~  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 renewed 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  .

_Article 11_

**Right to the registered design**

1. The right to the registered design shall vest in the designer or his successor in title.

## EN 26 EN

_Article 12_

**Presumption in favour of the registered holder of the design**

_Article 13_ ~~_11_~~

~~**Invalidity or refusal of registration**~~  **Grounds for non-registrability** 

1. A design shall be refused registration ~~, or, if the design has been registered, the design~~
~~right shall be declared invalid~~  where  :

(a) ~~if~~ the design is not a design within the meaning of Article 2, point (3 ~~)l(a);~~ ~~or~~

(b) ~~if it~~  the design  does not fulfil the requirements of Article ~~s 3 to~~ 8. ~~; or~~

Article 14

 **Grounds for invalidity** 

 1. If the design has been registered, the design right shall be declared invalid in the
following situations: 

 (a) the design is not a design within the meaning of Article 2, point (3); 

 (b) the design does not fulfil the requirements laid down in Articles 3 to 8;


of the Member State concerned; ~~or~~

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

filing of the application, or if priority is claimed, the date of priority of the
design: 

## EN 27 EN

(i) by a registered ~~Community~~  EU  design or an application for a
registered ~~Community~~  EU  design  subject to its registration; 

(ii) ~~or~~ by a  registered  design right of the Member State concerned, or by
an application for such a right ~~.~~  subject to its registration; 

 98/71/EC (adapted)

( ~~ea)~~ ~~if~~ a distinctive sign is used in a subsequent design, and ~~Community~~
 Union  law or the law of the Member State concerned governing that sign
confers on the right holder of the sign the right to prohibit such use; ~~or~~

( ~~fb)~~ ~~if~~ the design constitutes an unauthorised use of a work protected under the
copyright law of the Member State concerned; ~~or~~

(g ~~c)~~ ~~if~~ the design constitutes an improper use of any of the items listed in Article
6te ~~r6b~~ of the Paris Convention for the Protection of Industrial Property, or of badges,
emblems and escutcheons other than those covered by Article 6te ~~r6b~~ of the said
Convention which are of particular public interest in the Member State concerned.

(a) any natural or legal person;

 98/71/EC (adapted)

3. The ground  for invalidity  provided for in paragraph 1, point (c), may be
invoked solely by the person who is entitled to the design right under the law of the Member
State concerned.

## EN 28 EN

4. The grounds  for invalidity  provided for in paragraph 1, points (d), ~~and in~~
~~paragraph 2(~~ e ~~a~~ ) and ( ~~fb)~~, may be invoked solely by  the following: 

(a) the applicant for or the holder of the conflicting right; ~~.~~

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

 98/71/EC (adapted)

5. The ground  for invalidity  provided for in paragraph 1, point (g), ~~2(c)~~ may be
invoked solely by the person or entity concerned by the  improper  use.

 98/71/EC

7 ~~9.~~ A design right may be declared invalid even after it has lapsed or has been
surrendered.

## EN 29 EN

 98/71/EC (adapted)

_Article 16_ ~~_12_~~

**Rights conferred by the design right**

1. The registration of a design shall confer on its holder the exclusive right to use it and
to prevent any third party not having ~~his~~  the  consent  of the holder  from using
it.

2. The  following  ~~aforementioned use shall cover,~~ in particular,  may be
prohibited under paragraph 1: 

(a) ~~the~~ making, offering, putting on the market ~~, importing, exporting~~ or using of a product in
which the design is incorporated or to which it is applied; ~~,~~

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

(c) ~~or~~ stocking ~~such~~ a product  referred to in point (a)  for ~~those~~  the  purposes ~~.~~
 mentioned in points (a) and (b); 

 98/71/EC

## EN 30 EN

_Article 17_

**Presumption of validity**

 98/71/EC (adapted)

_Article 18_ ~~_13_~~

**Limitation of the rights conferred by the design right**

1. The rights conferred by a design right upon registration shall not be exercised in
respect of:

(a) acts  carried out  ~~done~~ privately and for non-commercial purposes;

(b) acts  carried out  ~~done~~ for experimental purposes;

## EN 31 EN

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

 98/71/EC

( ~~fa~~ ) the equipment on ships and aircraft registered in another country when these

temporarily enter the territory of the Member State concerned;

( ~~gb)~~ the importation in the Member State concerned of spare parts and accessories

for the purpose of repairing such craft;

(h ~~c)~~ the execution of repairs on such craft.

_Article 19_

**Repair clause**

## EN 32 EN

 98/71/EC (adapted)

~~_Article 14_~~

~~**Transitional provision**~~

~~Until such time as amendments to this Directive are adopted on a proposal from the~~
~~Commission in accordance with the provisions of Article 18, Member States shall maintain in~~
~~force their existing legal provisions relating to the use of the design of a component part used~~
~~for the purpose of the repair of a complex product so as to restore its original appearance and~~
~~shall introduce changes to those provisions only if the purpose is to liberalise the market for~~
~~such parts.~~

_Article 20_ ~~_15_~~

**Exhaustion of rights**

The rights conferred by a design right upon registration shall not extend to acts relating to a
product in which a design included within the scope of protection of the design right is
incorporated or to which it is applied, when the product has been put on the market in the
 Union  ~~Community~~ by the holder of the design right or with his consent.

_Article 21_

**Rights of prior use in respect of a registered design right**

_Article 22_ ~~_16_~~

**Relationship to other forms of protection**

## EN 33 EN

The provisions of this Directive shall be without prejudice to any provisions of  Union 
~~Community~~ law or of the law of the Member State concerned relating to unregistered design
rights, trade marks or other distinctive signs, patents and utility models, typefaces, civil
liability or unfair competition.

_Article 23_ ~~_17_~~

**Relationship to copyright**

A design protected by a design right registered in or in respect of a Member State in
accordance with this Directive shall also be eligible for protection  by  ~~under the law of~~
copyright ~~of that State~~ as from the date on which the design was created or fixed in any form

_Article 24_

**Registration symbol**

**PROCEDURES**

_Article 25_

**Application requirements**

1. An application for a registered design shall contain at least all of the following:

(a) a request for registration;

(b) information identifying the applicant;

## EN 34 EN

_Article 26_

**Representation of the design**

(a) magnified views showing part of the product separately in an enlarged scale;

(b) sectional views where a cutaway portion of the product is shown;

(d) partial views where parts of a product are shown separately in different views.

## EN 35 EN

_Article 27_

**Multiple applications**

_Article 28_

**Date of filing**

_Article 29_

**Scope of substantive examination**

_Article 30_

**Deferment of publication**

## EN 36 EN

_Article 31_

**Procedure for declaration of invalidity**

(b) in the case of paragraph 2, point (b), the person referred to in Article 14(3).

_Article 32_

**Renewal**

_Article 33_

**Communication with the office**

## EN 37 EN

CHAPTER 4

**ADMINISTRATIVE COOPERATION**

_Article 34_

**Cooperation in the area of design registration, administration and invalidity**

Article 35

_Cooperation_ _**in other areas**_

CHAPTER 5

 **FINAL PROVISIONS** 

~~_Article 18_~~

~~**Revision**~~

~~Three years after the implementation date specified in Article 19, the Commission shall~~
~~submit an analysis of the consequences of the provisions of this Directive for Community~~
~~industry, in particular the industrial sectors which are most affected, particularly~~
~~manufacturers of complex products and component parts, for consumers, for competition and~~
~~for the functioning of the internal market. At the latest one year later the Commission shall~~
~~propose to the European Parliament and the Council any changes to this Directive needed to~~
~~complete the internal market in respect of component parts of complex products and any other~~
~~changes which it considers necessary in light of its consultations with the parties most~~
~~affected.~~

_Article 36_ ~~_19_~~

~~**Implementation**~~  **Transposition** 

1. Member States shall bring into force the laws, regulations or administrative provisions
necessary to comply with  Articles 2 and 3, Articles 6, 10 to 19, 21, 23 to 33 by …[ _OP_

## EN 38 EN

the text of those measures to the Commission. 

When Member States adopt  those measures  ~~these provisions,~~ they shall contain a
reference to this Directive or ~~shall~~ be accompanied by such  a  reference on the
occasion of their official publication.  They shall also include a statement that references in
existing laws, regulations and administrative provisions to the Directive repealed by this
Directive shall be construed as references to this Directive.  ~~The methods of making such~~
~~reference shall be laid down by~~ Member States  shall determine how such reference is to
be made and how that statement is to be formulated  .

2. Member States shall communicate to the Commission  the text of  the
 main  provisions of national law which they adopt in the field ~~governed~~  covered 
by this Directive.

_Article 37_

 **Repeal** 

 Directive 98/71/EC is repealed with effect from … [ _OP please insert the date = the day_
_after the date in the first subparagraph of Article 36(1)_ ], without prejudice to the obligations
of the Member States relating to the time-limit for the transposition into national law of the
Directive set out in Annex I. 

 References to the repealed Directive shall be construed as references to this Directive and
shall be read in accordance with the correlation table in Annex II. 

_Article 38_ ~~_20_~~

**Entry into force**

This Directive shall enter into force on the ~~20th~~  twentieth  day following  that of 
its publication in the _Official Journal of the European_  _Union_  ~~_Communities_~~ .

 Articles 4 and 5, Articles 7 to 9, Articles 20 and 22 shall apply from …[ _OP please insert_
_the date = the day after the date in the first subparagraph of Article [38](1)_ ]. 

_Article 39_ ~~_21_~~

**Addressees**

This Directive is addressed to the Member States.

## EN 39 EN

Done at Brussels,

_For the European Parliament_ _For the Council_
_The President_ _The President_

## EN 40 EN