(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2004)0582),

–   having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0119/2004),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Economic and Monetary Affairs and the Committee on the Internal Market and Consumer Protection (A6-0453/2007),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission ║,

Having regard to the opinion of the European Economic and Social Committee(1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(2),

Whereas:

1)   ║ The sole purpose of design protection is to grant exclusive rights to the appearance of a product, but not a monopoly over the product as such. Protecting designs for which there is no practical alternative would lead in fact to a product monopoly. Such protection would come close to an abuse of the design regime. If third parties are allowed to produce and distribute spare parts, competition is maintained. If design protection is extended to spare parts, such third parties infringe those rights, competition is eliminated and the holder of the design right is de facto given a product monopoly.

2)   ║ The differences in 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, directly affect the establishment and functioning of the internal market as regards goods embodying designs. Such differences can distort competition within the internal market.

3)   ║ It is therefore necessary, for the smooth functioning of the internal market, to approximate the design protection laws of the Member States as concerns the use of protected designs for the purpose of repair of a complex product so as to restore its original appearance.

4)   ║ To complement the provisions of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector(3) concerning the ability of a manufacturer to place its trade mark or logo on components or spare parts visibly and in an effective manner, it must be ensured that consumers are duly informed about the origin of spare parts, by means such as information about trade marks or logos placed on the parts concerned.

(5)  Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles(4) includes provisions for the testing of spare parts manufactured by independent producers to ensure that they meet safety and environmental criteria. The new procedures which it prescribes will provide enhanced consumer safeguards in a fully deregulated market.

(6)  Directive 98/71/EC(5) should be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Article 14 of Directive 98/71/EC shall be replaced by the following:

"Article 14

Designs incorporated in component parts used for repair purposes

1.  Protection as a design shall not exist for a design that is incorporated in or applied to a product which constitutes a component part of a complex product and is used within the meaning of Article 12(1) ║for the sole purpose of the repair of that complex product so as to restore its original appearance. This provision shall not apply where the primary purpose of putting the aforesaid component part on the market is other than the repair of the complex product.

2.  Paragraph 1 shall apply provided that consumers are duly informed about the origin of the product used for the repair by the use of a marking, such as a trade mark or a trade name, or in another appropriate form so that they can make an informed choice between competing products offered for use in effecting the repair.

3.  Paragraph 1 shall apply only in respect of visible component parts in the after market once the complex product is marketed in the primary market by the holder of the design right therein or with his consent."

Article 2

Member States under whose existing legislation protection as a design exists for a design that is incorporated in or applied to a product which constitutes a component part of a complex product and is used within the meaning of Article 12(1) of Directive 98/71/EC for the sole purpose of the repair of that complex product so as to restore its original appearance, may retain that design protection until …(6).

Article 3

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by …(7). They shall forthwith inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States║.

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

Article 4

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 5

This Directive is addressed to the Member States.

Done at ║

For the European Parliament For the Council

The President The President

(1) OJ C 286, 17.11.2005, p. 8. (2) Position of the European Parliament of 12 December 2007. (3) OJ L 203, 1.8.2002, p. 30. Regulation as amended by the 2003 Act of Accession. (4) OJ L 263, 9.10.2007, p. 1. (5) OJ L 289, 28.10.1998, p. 28. (6) * Five years after the date of entry into force of this Directive. (7) * Two years after the date of adoption of this Directive.