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From Metal to Code: Comparative Reflections on the Repair Clause in the Automotive Aftermarket

Yan Li, LLM 2024-2025

 Imagine a simple scenario: your car wheel rim is damaged. Can you repair or replace it, and from whom may you lawfully buy the part? Must the replacement be identical, or can a newer version be used? This everyday question captures a deeper conflict at the heart of the automotive aftermarket: the tension between intellectual property (IP) exclusivity and consumers’ freedom to repair. This debate is not merely about car parts, however, it is about rethinking ownership, sustainability, and innovation in a world where climate change compels industries to embrace circular design and extend product lifecycle.

 The question of how to allocate rights in the lucrative spare-parts market remains politically and legally contested. When IP protection allows original manufacturers (OEMs) to monopolise spare parts, consumers lose meaningful choice, and risks of inflated pricing or refusal to supply older models become real.[1] Independent manufacturers have therefore long called for liberalisation to restore competition. Europe responded by introducing special IP regimes that carve out exceptions for spare parts, while other jurisdictions, such as China, have instead expanded protection through partial design rights without adopting a comparable repair clause.

The EU Path to the Repair Clause

To address the question above, the EU repair clause has travelled a long and politically charged road. The idea first appeared in the 1993 draft Regulation on Community Designs, where the European Commission inclined to liberalise the spare parts market by allowing third-party suppliers to produce identical visible components, such as car doors or bumpers, after a short exclusivity period.[2] Yet, resistance from the automotive industry turned this liberal ambition into a temporary compromise: Article 110 of the 2002 Community Design Regulation, which left Member States free to maintain divergent national rules, known as the “freeze plus clause”.[3] This compromise entrenched fragmentation and prolonged uncertainty in the aftermarket.

 After nearly two decades of deadlock, in 2022, the EU finally adopted Article 19 of the recast Directive, transforming the transitional clause into a permanent exception that excludes design protection for visible parts used solely to restore a product’s original appearance.[4] Although this reform marks a clear step toward harmonisation, its eight-year transitional period means full liberalisation remains distant.[5]  In that period, rapid advances in design, technology and repair practices could further reshape the industry, potentially impacting the reforms’ success.

 Judicial interpretation within the EU has also shaped the repair debate. The German Federal Court in Palettenbehälter II and the UK Supreme Court in Schütz v Werit both treated the replacement of worn parts as lawful repair rather than remanufacture, stressing where the line between legitimate repair and impermissible making should be drawn.[6] Both cases ultimately left the distinction between repair and “making” to judicial interpretation, yet what qualifies as repair in everyday understanding may differ across contexts, especially in complex products such as automobiles or electronics, thereby reducing legal certainty and leaving room for dispute.[7]

The Acacia Cases and the ‘Must Match’ Approach

Yet, the Acacia cases unified and clarified the EU repair clause. As noted in the example at the beginning of this article, the Acacia cases precisely concerned a repair dispute over Porsche wheel rims. It introduced a design law-based ‘must-match’ statutory approach, which represents progress toward harmonisation but whose narrow interpretation raises new challenges. One may ask whether, if an owner could replace a damaged entry-level Porsche rim with a premium version without breaching the clause. This highlights uncertainty over whether even small variations, such as colour or optional styling, fall outside the statutory repair exception. While design law offers a statutory basis for limiting monopoly rights, its practical effectiveness seems to depend on how strictly “restoring the original appearance”[8] is interpreted.

 Amid the globalised circulation of auto parts, the EU repair clause marks a shift toward limiting certain design rights to advance the broader “right to repair” agenda, raising the question of whether other jurisdictions, most notably China, have taken a different path, and how such regulatory fragmentation may shape international market order, legal alignment, and the global discourse on repairability.

China’s Divergent Approach: Expanding Partial Design Protection

The 2020 amendment to the Chinese Patent Law introduced partial design protection for the first time. In 2022, China acceded to the Hague Agreement, becoming the second-largest user of the system with 3,758 filings in 2023.[9] These developments show how China aligns with international IP frameworks while simultaneously strengthening domestic enterprises’ capacity to secure design rights.

For Chinese automotive enterprises, the partial design regime offers distinct advantages. First, as the industry has matured, design space for many vehicle components has narrowed. The new regime therefore allows firms to protect incremental or localised design improvements that were previously ineligible.[10] Second, it also facilitates the safeguarding of so-called “family design genes”, whereby a recognisable brand style is carried across a series of models, and later models incorporate partial design variations.[11] Third, in view of the rapid expansion of the global NEV market, this protection strengthens the ability of Chinese OEMs to claim priority rights abroad, thereby enhancing their international competitiveness.[12]

However, from a consumer and competition standpoint, the absence of a repair clause risks monopolising the Chinese automotive aftermarket. The well-known Liu Dahua v Dongfeng Nissan case illustrates this. The plaintiff, denied the purchase of individual parts and forced to pay inflated fees at an authorised dealership, alleged abuse of dominance under antitrust law. The court rejected the claim for lack of evidence, revealing the difficulties of challenging OEM control through competition law alone.[13]

Therefore, when considering why China has not introduced a statutory repair clause, it is essential to look beyond a mere disregard for repair rights and instead examine the country’s industrial policy orientation and the structural characteristics of its NEV market[14]. First, industrial policy remains focused on supporting domestic OEMs and enhancing their design-led competitiveness[15], making the limitation of design rights politically counterintuitive. Moreover, as NEVs follow an upgrade-oriented lifecycle[16] akin to consumer electronics, the traditional rationale for spare parts monopolies is fading, reducing the policy incentive to legislate for repair rights.  

From Metal to Code:Towards a Genuine Right to Repair

At this stage, the discussion can no longer be confined to traditional metal components. The rapid rise of NEVs introduces fresh challenges to consumers’ right to repair. These vehicles increasingly follow a “replacement over repair” model, characterised by high integration and limited modularity. Moreover, OEMs’ control over battery packs and embedded software effectively excludes independent repairers from the market, posing new questions for the future development of law. The 2024 criminal case in Shanghai against two mechanics who unlocked a BYD EV battery highlights how software control transforms repair into a data-access issue.[17] Similar concerns arise in other common law jurisdictions, where BYD and several Chinese NEV brands faced multimillion-dollar fines for withholding repair data, exemplifying how OEMs use technological lock-ins to restrict independent repair and challenge emerging right-to-repair norms.

In the NEV sector, a design-specific repair clause may no longer be sufficient. The real battleground increasingly lies in software, data, and interoperability, all of which are tightly controlled by OEMs. First, while European case law has typically classified car doors and wheels as spare parts, this assumption is undermined by integrated design trends. Flush door handles now incorporate light sensors[18], and wheels often form part of smart systems with embedded electronic control modules[19]. This raises the question of whether the repair clause can still adequately cover the replacement of such multifunctional parts without triggering IP infringement concerns.

Secondly, the growing shift toward design-driven customisation in NEVs undermines the effectiveness of the repair clause. Non-standardised components, such as wheels, lights, and decorative trims, are prohibitively costly for third parties to replicate, leaving consumers de facto dependent on OEM-authorised repairs.

Thirdly, as NEV brands proliferate and vehicles begin to follow an upgrade-oriented lifecycle similar to consumer electronics, the aftermarket is losing its role as a monopolised profit centre. This development weakens the traditional economic justification for long-term design protection and limiting the relevance of the repair clause.

Revisiting the crucial concept of ‘must match’ spare parts, it is striking that legal debates still focus on liberalising repair access for visible components precisely because they are assumed to be modular and replaceable. Yet manufacturing innovations, most notably gigacasting by OEMs like Tesla and BYD have already disrupted this assumption[20]. Gigacasting collapses multiple ‘must match’ elements into a single integrated casting that cannot be modularly replaced. It enables nearly the entire complex underbody of an EV to be die-cast in one piece rather than assembled from about 400 separate parts in a conventional car, radically transforming how vehicles are designed and manufactured[21].

This development shows that the repair clause, in its current ‘must match’ formulation, is increasingly inadequate and may even become an obstacle to the future realization of a genuine right to repair. The automobile spare parts dilemma has evolved from modular bumpers and fenders to integrated die-cast structures and software-locked modules. If the law is to remain effective, it must recognize this evolution and move the repair debate beyond physical parts to the digital and systemic level.

Further reform should therefore move beyond a narrow design-specific exception. What is required is a coordinated framework that integrates consumer law, competition law, and sustainability goals, ensuring that the right to repair remains meaningful in the new age of gigacasting, software-driven vehicle and next generation automobile designs.

References:

Addcarlights, ‘Car Door Light Projector’ <https://www.addcarlights.com/car-door-light-projector> accessed 4 September 2025

Anna H, ‘Harmonising the Acts of Patent Infringement in Europe’ (Doctoral thesis, Stockholm University 2020)

BYD, ‘BYD Reveals DiSus Intelligent Body Control System, Exclusively for New Energy Vehicles’ <https://en.byd.com/news/byd-reveals-disus-intelligent-body-control-system-exclusively-for-new-energy-vehicles/> accessed 4 September 2025

Case C-397/16 and C-435/16 Acacia Srl v Audi AG and Acacia Srl and Rolando D’Amato v Porsche AG EU:C:2017:992, Judgment of the Court (Second Chamber), 20 December 2017

China National Intellectual Property Administration (CNIPA), How to Seek Protection for Designs in China (2024)

Commission of the European Communities, ‘Proposal for a European Parliament and Council Directive on the Legal Protection of Designs’ COM(93) 344 final, 3 December 1993

European Commission, ‘Commission Staff Working Document: Evaluation of EU Legislation on Design Protection’ SWD(2020) 264 final, 6 November 2020

EUIPO, ‘Design Reform Hub: Terminology & Procedural Changes’ (EUIPO) <https://www.euipo.europa.eu/en/designs/design-reform-hub/terminology-procedural-changes> accessed 1 August 2025

EUIPO, ‘EU Designs Legislative Reform Webinar’ (Webinar, 4 December 2024) <https://euipo.europa.eu/knowledge/course/view.php?id=5213> accessed 1 August 2025

FutureBridge, From Foundry to Future: How Gigacasting Is Redefining Electric Vehicle (EV) Production? Report 2025

Global Times, ‘China Launches New Consumption Campaign to Boost NEV Adoption in Rural Regions’ (24 June 2025) <https://www.globaltimes.cn/page/202506/1336870.shtml> accessed 7 September 2025

Liu Dahua v Hunan Huayuan Industrial Co Ltd and Dongfeng Motor Co Ltd Dongfeng Nissan Passenger Vehicle Company (2012) Xiang Gao Fa Min San Zhong Zi No 22 (Hunan High People’s Court, China), listed in Supreme People’s Court, Top 10 Innovative IP Judicial Cases of 2012

Liu Mou and others, Criminal Judgment for the Crime of Damaging Computer Information Systems [2024] Hu 0114 Xing Chu 797 (Shanghai Jiading District People’s Court, China) First Instance

Nurton J, ‘UK Container Case Clarifies Patent Law’ (2013) Managing Intellectual Property 14

Nurton J, ‘UK Supreme Court Defines “Makes” in Schütz v Werit’ (2013) Managing Intellectual Property (London, March)

Roland Berger and China Automotive News, China Automotive Supply Chain Report 2024 (August 2024, in Chinese)

Shirouzu N, ‘Tesla Reinvents Carmaking with Quiet Breakthrough’ Reuters (14 September 2023) <https://www.reuters.com/technology/gigacasting-20-tesla-reinvents-carmaking-with-quiet-breakthrough-2023-09-14/> accessed 7 September 2025

Torremans P, Holyoak and Torremans Intellectual Property Law (9th edn, Oxford University Press 2019)

Xinhua News Agency, ‘Chinese NEVs’ Competitive Advantages Depend on Large Market and Rapid Technology Upgrade’ (Xinhua, edited by Huaxia, 10 April 2024) <https://english.news.cn/20240410/87dad60b36b140658dffda9c4ccb23c7/c.html> accessed 6 September 2025

Zheng W, Study on the Impact of the System to the Chinese Automobile Industry and Preventive Solution (unpublished manuscript, in Chinese)

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[1] Paul Torremans, Holyoak and Torremans Intellectual Property Law (9th edn, OUP 2019) 366.

[2] European Commission, ‘Commission Staff Working Document: Evaluation of EU legislation on design protection’ SWD(2020) 264 final, 6 November 2020, 64.

[3] Commission of the European Communities, ‘Proposal for a European Parliament and Council Directive on the Legal Protection of Designs’ COM(93) 344 final, 3 December 1993, art 14.

[4] EUIPO, ‘Design Reform Hub: Terminology & Procedural Changes’ (EUIPO) <https://www.euipo.europa.eu/en/designs/design-reform-hub/terminology-procedural-changes> accessed 1 August 2025.

[5] EUIPO, 'EU Designs Legislative Reform Webinar' (Webinar, 4 December 2024) <https://euipo.europa.eu/knowledge/course/view.php?id=5213> accessed 1 August 2025.

[6] Anna Horn, ‘Harmonising the Acts of Patent Infringement in Europe’ (Doctoral thesis, Stockholm University 2020) 207-208.

[7] James Nurton, ‘UK Container Case Clarifies Patent Law’ (2013) Managing Intellectual Property 14. Also see James Nurton, ‘UK Supreme Court Defines “Makes” in Schütz v Werit’ (2013) Managing Intellectual Property (London, March).

[8] Case C-397/16 and C-435/16 Acacia Srl v Audi AG and Acacia Srl and Rolando D’Amato v Porsche AG EU:C:2017:992, Judgment of the Court (Second Chamber), 20 December 2017, para 83.

[9] China National Intellectual Property Administration (CNIPA), How to Seek Protection for Designs in China (2024).

[10] Zheng WanTing, Study on the Impact of the System to the Chinese Automobile Industry and Preventive Solution (unpublished manuscript, in Chinese).

[11] Ibid.

[12] CNIPA (n 9).

[13] Liu Dahua v Hunan Huayuan Industrial Co Ltd and Dongfeng Motor Co Ltd Dongfeng Nissan Passenger Vehicle Company (2012) Xiang Gao Fa Min San Zhong Zi No 22 (Hunan High People’s Court, China), listed in Supreme People’s Court, Top 10 Innovative IP Judicial Cases of 2012.

[14] Xinhua News Agency, ‘Chinese NEVs’ Competitive Advantages Depend on Large Market and Rapid Technology Upgrade’ (Xinhua, edited by huaxia, 10 April 2024) <https://english.news.cn/20240410/87dad60b36b140658dffda9c4ccb23c7/c.html> accessed 6 September 2025.

[15] Roland Berger and China Automotive News, China Automotive Supply Chain Report 2024 (August 2024, in Chinese).

[16] Global Times, ‘China Launches New Consumption Campaign to Boost NEV Adoption in Rural Regions’ (24 June 2025) <https://www.globaltimes.cn/page/202506/1336870.shtml> accessed 7 September 2025.

[17] Liu Mou and others, Criminal Judgment for the Crime of Damaging Computer Information Systems [2024] Hu 0114 Xing Chu 797 (Shanghai Jiading District People’s Court, China) First Instance.

[18] Addcarlights, ‘car door light projector’ <https://www.addcarlights.com/car-door-light-projector> accessed 4 September 2025.

[19] BYD, ‘BYD Reveals DiSus Intelligent Body Control System, Exclusively for New Energy Vehicles’ <https://en.byd.com/news/byd-reveals-disus-intelligent-body-control-system-exclusively-for-new-energy-vehicles/> accessed 4 September 2025.

[20] Norihiko Shirouzu, ‘Tesla Reinvents Carmaking with Quiet Breakthrough’ Reuters (14 September 2023) <https://www.reuters.com/technology/gigacasting-20-tesla-reinvents-carmaking-with-quiet-breakthrough-2023-09-14/> accessed 7 September 2025.

[21] FutureBridge, From Foundry to Future: How Gigacasting Is Redefining Electric Vehicle(EV) Production? Report 2025.