Whether and to which extent spare parts – particularly car spare parts – should be protected by European design law has been discussed intensely and controversially throughout the 1990s; it was one of the main causes for delayed adoption of the Designs Directive and the Community Designs Regulation and nearly prevented the harmonisation of the national design laws of the EU Member States.

The temporary outcome of this controversy (which took place mainly between the institutions of the EU and the European car manufactures) resulted in the “freeze-plus” solution laid down in Article 14 Designs Directive and the implementation of the “repair clause” regarding Community designs in Article 110 (1) Community Designs Regulation. According to the latter provision, “protection as a Community design shall not exist for a design which constitutes a component part of a complex product used […] for the purpose of the repair of that complex product so as to restore its original appearance”. On the national level, the “freeze-plus” solution became part of the Designs Directive. According to Article 14 Designs Directive, the 28 Member States of the EU are allowed to “maintain in force their existing legal provisions” but if they should wish to change their nationals laws, this must be in favour of liberalisation, i.e.changes to existing provisions may be introduced “only if the purpose is to liberalise the market for such parts”. Today, eleven of the 28 Member States have liberalised their national spare parts markets.

II.

In a new round of negotiations, revision of Article 14 Designs Directive (required by Article 18 Designs Directive) led to the European Commission’s proposal to amend the Designs Directive by introducing a “repair clause” as well. The European Parliament adopted this proposal with amendments on December 12, 2007, and forwarded it to the Council. Rather unsurprisingly, until now the Council had neither taken nor even scheduled a decision – “unsurprisingly”, because it is well-known that major car-manufacturing countries in the EU, notably Germany and France, were opposed to the proposed liberalisation of the spare-parts market.

Now, according to Volume 57 of the Official Journal of the European Union, published on May 21, 2014, it is reported, under the Section “Withdrawal of obsolete Commission Proposals” (OJEU 2014 No C 153 page 6), that the European Commission’s “Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs” has been withdrawn. As a consequence, efforts to harmonize European design law further and to establish a Europe-wide “repair clause” must be considered terminated, at least for the time being.

National design laws which do not provide for such a clause (such as, for instance, Germany) will continue to allow protection and enforcement of design rights covering spare parts; no infringer, under that scenario, will be allowed, in return, to raise the defence of legitimate use for repair reasons. Different from Germany and other countries (e.g. France), Member States such as Belgium, Italy, the Netherlands, Poland, Portugal, Spain and the United Kingdom have introduced the “repair clause”, providing for a defence when using car spare parts for the purpose of repair.

III.

Not much to our surprise, first reactions from national and European aftermarket supplier associations show that these lobby groups will continue to fight, from their perspective, for liberalising the spare parts market. In return, Germany and France, in particular, being the home of strong and important car industries will continue supporting the interests of original equipment manufacturers. There seems to be little hope, from the suppliers’ perspective, that these countries will opt for the “plus” solution and introduce changes to their existing national provisions in order to liberalise the market for spare parts. As a consequence of thisstatus quo, original manufacturers of spare parts should continue to file nationally in those countries providing design protection for spare parts, including the right to prevent the use of such designs for the purpose of repair.

Interestingly, and as a final remark, while the “repair clause” discussions largely focus on the battle between car makers and car suppliers, the spare part issue is not limited to that industry. Rather, given that the relevant terminology (“design which constitutes a component part of a complex product used for the purpose of the repair of that complex product so as to restore its original appearance”) is not further qualified, any part of a “complex product” including, for instance, smartphones, tablets, vacuum cleaners and coffeemakers, can be the subject of the “repair clause”.