On 6 February 2013, the Romanian Competition Council (RCA) published its final report on the results of its sector inquiry into the automotive spare parts market.
The RCA launched its sector inquiry into the automotive spare parts market in February 2009. The RCA published its preliminary findings in April 2012, paying particular attention to the impact on competition of IP rights on the market for visible spare parts (e.g., body panels, windscreens, lights and mirrors). The RCA's report noted that the design of visible spare parts is protected by industrial design rights. Consequently, each vehicle manufacturer holds a legal monopoly in relation to such spare parts since these can only be produced by or with the permission of the holder of the respective design rights. In the view of the RCA, competition has therefore been completely excluded since consumers have no access to spare parts other than those supplied by the holder of the IP rights. The RCA proposed to rectify this situation by the introduction of a so-called "repair clause". Such a clause would stipulate that the "legal protection of designs shall not apply to a design which constitutes a component part of a complex product for the purpose of the repair of that product that aims at restoring its original appearance". In other words, parts intended for new vehicles would be protected by IP law, but not those intended for the repair market.
Following the RCA's preliminary report, observations were submitted by the main players in the Romanian automotive market. Vehicle manufacturers and importers argued that it was necessary to maintain the protection for visible spare parts, considering that the introduction of a repair clause would raise concerns about safety and serve as a disincentive to investments in innovation and R&D. The Romanian Ministry for Inventions and Trademarks (OSIM) was also opposed to the introduction of the repair clause, considering that such a clause was not required by existing EU legislation (particularly Directive 98/71/EC on the protection of design rights) nor by TRIPS (the Agreement on Trade Related Aspects of Intellectual Property Rights administered by the WTO that sets down minimum standards for many forms of IP regulation). In contrast, vehicle distributors were largely in favour of a repair clause, noting that vehicle manufacturers had a legal monopoly in this area.
The RCA has now published its final report and responded to the observations of third parties. The RCA considers that OSIM's interpretation of the relevant legislation is excessively restrictive and exaggerates the importance of IP rights over the interests of other players in the market, particularly independent spare parts producers and end consumers. The RCA notes that Directive 98/71/EC expressly provides for the liberalisation of national markets for spare parts and that 10 Member States have already enacted the repair clause. Moreover, none of these Member States has been found to have infringed the TRIPS agreement by implementing the repair clause.
The report goes on to emphasise that the liberalisation of the aftermarket for visible spare parts would not deprive vehicle manufacturers of legal design protection on the primary market (i.e., the production and sale of new vehicles). Responding to arguments raised by vehicle manufacturers that the use of non-original body repair parts is unsafe, the RCA refers to a 2006 study of the European Parliament which found that there was no general safety risk resulting from the use of non-original spare parts. The RCA also points out that the Romanian body responsible for the approval and certification of spare parts would be able to refuse certification if the parts in question presented a serious risk to road safety or public health. The RCA further considers that the introduction of the repair clause would have the effect of reducing the price of visible spare parts.
In light of the foregoing, the RCA concludes its report by reiterating its preliminary recommendation that a repair clause be introduced. However, due to the "economic difficulties" experienced by vehicle manufacturers, the RCA acknowledges that one option would be to implement a "progressive and controlled removal" of the monopoly on visible spare parts, in order to give vehicle manufacturers sufficient time to prepare for the liberalisation of the market.
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