Statement on the European Commission Proposal for a Directive amending 98/71/EC on the Legal Protection of Designs, adopted 14 September 2004
Publication date: 17 March 2005
Inclusion of a “repairs clause” in the Directive on the Legal Protection of Designs (98/71/EC)
The EuroCouncil of the Fédération Internationale de l’Automobile (FIA) represents through its affiliated members, national motoring and touring organisations in Europe, more than 43 million citizens in the European Union (EU). With regard to the proposed draft Directive amending 98/71/EC on the Legal Protection of Designs intended to liberalise the automotive aftermarket in spare parts, we expressly welcome the European Commission's decision to include the so-called "repairs clause" in a new Design Protection Directive. The clause clearly excludes visible spare parts intended for repairs from design protection from day one by vehicle manufacturers with effect throughout the EU.
We believe that the inclusion of a “repairs clause” in the Design Protection Directive is essential to ensure effective competition in the visible spare parts market. It is the only way to ensure that owners of vehicles in need of repair have a choice between the vehicle manufacturers’ original branded spare parts and the prices demanded for them by the automobile manufacturers and independently produced must-match spare parts.
Answers to arguments against a “repairs” clause
The counter-arguments raised by the automobile industry in defence of design protecting the individual spare parts (integrated into the complex whole product) covered by this piece of legislation – that is those spare parts that make up the “skin” of the care and which account for the parts most frequently damage in accidents and in need of repair from the moment of purchase are not convincing.
“Design Protection Prevents Product Piracy”
The risk of product piracy due to the exemption from design protection is invariably mentioned in this context and is misleading. The introduction of a “repairs clause” does not imply the loss of design protection for the visible component parts and the whole visible car bodies. It merely permits the lawful reverse engineering of component spare parts needed and used exclusively for repair purposes. The design protection of the complex whole product itself is reasonable and necessary because this provides the customer with choice e.g. between buying a VW Golf and an Opel Astra. Indeed European Community legislation already protects the vehicle manufacturers by giving them the right to stop competitors from copying the designs of car bodies or car body parts if they are intended for use in competing car models.
For repair spare parts, however, choice does not exist because there is no room for alternative designs of the repair spare part. It must match the damaged component to be properly integrated into the vehicle whole. If the manufacturer enjoys comprehensive design protection, the customer will be forced to pay premium prices for original parts from the vehicle manufacturer’s network. Consequently, in the case of older vehicles in particular, minor repairs could entail disproportionately high costs which make a repair economically unreasonable. This would affect less well off motorists in particular.
“Design Protection is best for the Consumer as regards Price, Quality and Safety”
A major objective of the proposed Design Directive is to enhance the European Union’s automotive spare parts aftermarket with a view to providing citizens/consumers with greater choice in terms of price and quality. The argument that the absence competition in this market as a result of no “repairs clause” would not impair the lot of the consumer is not convincing.
Given the global nature of the automotive industry, and the fact that there is no design protection in the United States nor Australia, it is curious that the argument prevails in Europe that protection is good for consumers.
A repairs clause will enhance competition in what is one of the most profitable automotive market segments, the visible spare parts market and will allow for certain price reductions. According to statistics prices for spare parts are lower in countries without design protection. Lower costs of spare parts for accident repair may have an additional positive impact on vehicle insurance premiums, thus again reducing the burden of costs for consumers.
It is well known that most European automobile manufacturers already import a considerable percentage of vehicle spare parts from low-wage countries (and indeed third countries outside the EU). Therefore their warnings against cheap imports from such countries (which additionally deprive EU citizens of jobs) are inconsistent with their own practices.
Concerns raised about the safety of non-original repair spare parts cannot be responded to within the scope of a Directive dealing with design rights. Whether the design of a spare part is protected or not, it does not necessarily mean that the unprotected spare part design is less safe than the design protected spare part. Today vehicle manufacturers are increasingly “assemblers” of cars rather than manufacturers and increasingly dependent on suppliers themselves. Thus, the situation already exists where the same automotive supplier produces the original part for the care manufacturer and for the independent market, the only difference being that one is sold under vehicle manufacturers brand and the other under the supplier’s brand, generally for a lower price.
The purpose of design protection is to protect the visible innovative/novel appearance features of the product. Safety is derived from the capacity of the part to reduce serious and fatal injury to either the vehicle passenger or the pedestrians.
The safety of non-original as well as of original spare parts must be and in many cases is provided for by other legislation. The safety and quality of spare parts are safeguarded in EU and national laws. Over 90 Directives already regulate the construction and functioning of motor vehicles. EU type-approval is already required for many spare part components. To ensure a coherent approach to ensuring the safety of all original and independent repair spare parts we believe it would be desirable to include such parts in the existing type-approval system. To deal with the technical specifications necessary to ensure a satisfactory standard level of safety Design Protection legislation is inappropriate.
Design protection exclusively refers to the appearance of a product and does not imply any quality inspection. Moreover, only visible component parts are affected by the proposals in the Design Protection Directive. Thus, important safety relevant parts such as the components of the brake system and others found under the bonnet of the car do fall within the remit of this Directive.
17 March 2005
 Comité Europeen des Assurances, „Spare Parts Price Survey“, January 2004