Swedish presidency of the Council of the European Union affecting IP rights

The presidency of the Council of the European Union (EU) rotates among the EU member states every six months.

Each member state belongs to a group formed of three member states that work closely together in an 18-month Trio Programme. During the first half of 2023, Sweden held the EU presidency, after France and the Czech Republic, which are member states forming part of the same trio.

The presidency involved, among other duties, leading different working groups in which proposals are negotiated before they are considered at the ministerial level.

According to the EU Council, the presidency has further involved focusing on a number of priorities including competitiveness within the EU, in which the area of intellectual property (IP) rights has an important role. Within this focus on IP, some of the objectives of the presidency were to highlight the entry into force of the unitary patent system, review the design protection legislation and support measures to promote open science, which were adopted at the Competitiveness Council meeting on May 23, 2023.

The working group on IP negotiated in March 2023 a working document with both a proposal for amending the Council regulation No 6/2002 on community designs—including repealing Commission Regulation No 2246/2002—and a proposal for a directive of the European Parliament and of the Council on the legal protection of designs, published in November 2022.
These proposals were the first real substantive review of EU design law in more than 20 years.

This working document describes two main problems of importance for all EU member states. One of the mentioned problems is related to the discouragement of business—especially small and medium enterprises (SMEs), and individual designers seeking to register their design nationally or at the EU Intellectual Property Office (EUIPO) due to high costs, complexity and delays in obtaining protection.

Proposed solutions are, therefore, lower fees, and harmonisation in design representation, new technology acceptance and procedures between member states.

"Both Germany and France have amended their design law towards a harmonised repair clause exemption."

The second main problem is the lack of harmonisation between EU member states with respect to intra-EU trade and competition barriers in relation to must-match visible repair spare parts, especially in the automotive industry.

According to the European Campaign for the Freedom of the Automotive Parts and Repair Market (ECAR), there are still 14 member states lacking a repair exception clause in their national design law. This means that member states that do not
have a repair exception clause in their design law allow protection and enforcement of the design rights on visible must-match repair parts.

On the other hand, for member states with a repair exception clause in their design law, competition between suppliers of copied repair parts and original repair parts is allowed.

As part of the ‘trio’, France has recently revised its design law, which involves a partial and sectorial repair exception clause allowing vehicle glazing components as an exclusion of the spare parts while other visible spare parts will still be protected for a period of ten years.

Sweden also offers a shorter protection period for the visible spare parts (Law (2002:570)) but does not seem persuaded to apply the repair exception clause to any visible must-match repair part.

According to ECAR, in 2014, Sweden was one of the member states together with Germany and France, among others, to block the implementation of a Europe-wide repair clause.

However, both Germany and France have amended their design law towards a harmonised repair clause exemption.
Before the presidency, there was a series of governmental meetings in Sweden on the repair exempt clause discussing both its advantages—lower prices for consumers and broader competitiveness—and its disadvantages, such as the lack of a guarantee by suppliers for the quality and safety of spare parts.

A solution could be to improve safety regulations nationally for all product designs, and implement a minimum quality on spare parts. However, the latter may be a difficult task when the EU is importing spare parts from countries with less rigorous laws.

Vanessa Bélec is a patent attorney at Fenix Legal. She can be contacted at: info@fenixlegal.eu