Joint call for a clear, unequivocal and immediately applicable EU Repair Clause to create an accessible and affordable right to repair

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On the 28th of November 2022, the European Commission published proposals for the revision of the EU Design Directive (COM(2022) 667) and the EU Design Regulation (COM(2022) 666). We appreciate the proposals, especially the introduction of an EU-wide Repair Clause in the Design Directive (Art. 19) and the confirmation of a permanent Repair Clause in the Design Regulation (Art. 20a), but believe that the intention behind this inclusion could materialise more efficiently with some targeted improvements.
 
Both legislative proposals ensure on one side full protection to manufacturers’ design rights over their products (such as a vehicle), and avoid on the other side monopolies in after-sales markets on visible spare parts (such as vehicle body panels, headlights, and windscreens) by excluding those for the purpose of repair and replacement from such protection. Today such Repair Clauses exist only in some Member States. We strongly support the intention of the European Commission to deploy this approach throughout the entire European Union. Harmonised rules for design protection and exemptions are a major step forward to simplify the EU regulatory framework, and a well-rounded Repair Clause would ensure competition and consumer’s choice for visible spare parts, submit their prices to competition, promote innovation and make the right to repair becoming a reality for all European consumers1.
 
Therefore, we call on the European Parliament and the Council to pay attention to the following issues:

• An efficient Repair Clause needs to cover both new and existing designs to fully benefit the consumers. The European Commission itself recognised that there is “no broad economic justification” for maintaining design protection on visible spare parts2. Therefore, the European Commission’s proposal of a compulsory 10-year transition period for Member States to implement a Repair Clause in national law is not justified. This will prevent the EU-wide Repair Clause in the Design Directive from having any effect on all existing products for another 10 years, denying consumers the benefit of a right to an affordable and accessible vehicle repair. We urgently call on the European Parliament and the Council to agree on a shorter and flexible transition period, leaving to Member States the choice of applying the Repair Clause to all designs in advance. A maximum transition period of up to 3 years would provide sufficient time for Member States to transpose the Directive into national law, while still being able to apply the Repair Clause to existing designs at an earlier date.3
• It is also important to ensure clarity and legal certainty in the wording of the Repair Clause, so that it applies uniformly and unequivocally to the benefit of all European consumers and businesses. The undue restriction of the Repair Clause to “form-dependent component parts of complex products only” (Recital 35), “upon whose appearance the design of the component part is dependent” (Art. 19(1))4, and the unclear and redundant consumers information requirements5, should be removed.