Changes from plenary report to adopted text

Added3a. Any benefits granted to SMEs under this Regulation may be withheld or withdrawn in cases of circumvention or misuse. [Am. 252]

AddedTitle IX Fees and Charges

AddedArticle 63 Fees and charges

Added1. The competence centre may charge administrative fees for the services it renders under this Regulation.

Added2. Fees may be charged at least in respect of the following matters:

Added(a) for the conciliators facilitating agreements on aggregate royalty determinations in accordance with Article 17;

Added(b) for the expert opinion on aggregate royalty in accordance with Article 18;

Added(c) for the essentiality check carried out by the evaluator in accordance with Article 31 and by the peer evaluator in accordance with Article 32;

Added(d) for the conciliators for the FRAND determination in accordance with Title VI.

Added3. Where the competence centre charges fees in accordance with paragraph 2, the fees shall be borne as follows:

Added(a) the fees referred to in paragraph (2), point (a) by the SEP holders that participated in the process based on their estimated percentage of SEPs from all SEPs for the standard;

Added(b) the fees referred to in paragraph (2), point (b) equally by the parties that participated in the procedure of the expert opinion on aggregate royalty, unless they agree otherwise, or the panel suggests a different apportionment based on the size of the parties determined on the basis of their turnover;

Added(c) the fees referred to in paragraph (2), point (c) by the SEP holder that requested an essentiality check pursuant to Article 29(5) or peer evaluation pursuant to Article 32(1) and the implementer that requested an essentiality check pursuant to Article 29(6);

Added(d) the fees referred to in paragraph (2), point (d) equally by the parties, unless they agree otherwise, or the conciliator suggests a different apportionment based on the level of participation of the parties in the FRAND determination.

Added4. The level of the fees shall be reasonable and shall correspondlimited to the costs of the services. It shall take into account the situation of micro, small and medium-sized enterprises. [Am. 253]

Added5. By [OJ: please insert the date = 18 months from entry into force of this Regulation], the Commission shall adopt an implementing act determining the amounts of the fees referred to in Article 63, the arrangement concerning the payment methods related to the rules set out in paragraph (3) and paragraph (4) of this Article. The implementing act shall be adopted in accordance with the examination procedure referred to in Article 68(2).

AddedArticle 64 Payment of fees

Added1. Fees shall be paid to the EUIPO. All payments shall be made in euro. The Executive Director of the EUIPO may establish which specific payment methods may be used.

Added2. If the amounts requested are not paid in full within 10 days after the date of the request, the competence centre may notify the defaulting party and give it the opportunity to make the required payment within [5] days. It shall submit a copy of the request to the other party, in case of an aggregate royalty or FRAND determination.

Added3. The date on which the payment shall be considered to have been made to the EUIPO shall be the date on which the amount of the payment or of the transfer is actually entered in a bank account held by EUIPO.

Added4. If any part of the required payment remains outstanding after the deadline in paragraph (2), the competence centre may suspend access to the database of the defaulting party, until payment is made.

AddedArticle 65 Financial provisions

Added1. The expenses incurred by the EUIPO or the evaluators or conciliators selected by the EUIPO pursuant to Articles 26 and 27 in carrying out the tasks conferred to it in accordance with this Regulation shall be covered by the administrative fees to be paid to the EUIPO by the users of the services of the competence centre.

Added2. Regarding costs incurred by the EUIPO for activities entrusted to it by this Regulation which are not covered by the fees under this Regulation, the EUIPO shall finance those activities from its own budgetary means.

AddedArticle 65a Reasoned request to the Commission

AddedA SEP holder or a SEP implementer may submit a reasoned request to the Commission to determine whether:

Added(a) the SEP licensing negotiations on FRAND terms and conditions do not give rise to significant difficulties or inefficiencies affecting the functioning of the internal market as regards identified implementations of certain standards or parts thereof within 1 month of the publication of the standard by the Standard Development Organisation;

Added(b) the functioning of the internal market is severely distorted due to significant difficulties or inefficiencies in the licensing of SEPs for particular existing implementations of standards or parts thereof within 12 months of the entry into force of this Regulation. [Am. 254]

AddedArticle 65b Delegated acts with respect to new standards

Added1. Within 4 months of the receipt of the request referred to in Article 65a, the Commission is empowered to adopt delegated acts in accordance with Article 67 and after an appropriate consultation process including all relevant stakeholders and to establish a list of implementations, standards or parts thereof, where SEP licensing negotiations on FRAND terms do not give rise to significant difficulties or inefficiencies affecting the functioning of the internal market.

Added2. The Commission shall review the list referred to in paragraph 1 once a year in order to determine if it needs to be updated.

Added3. The procedure under this Article shall not affect the time limits set out in Articles 17 and 18. [Am. 255]

AddedArticle 65c Delegated acts with respect to existing standards

Added1. The Commission shall conduct appropriate consultations including relevant stakeholders.

Added2. After considering all evidence and expert opinions, the Commission is empowered to adopt a delegated act in accordance with Article 67 to establish a list determining which of the existing implementations of standards or parts thereof can be notified in accordance with Article 66(1) or (2). By means of that delegated act, the Commission shall also determine which procedures, notification and publication requirements set out in this Regulation apply to those existing standards, parts thereof or relevant implementations. The delegated act shall be adopted by ... [OJ: please insert the date 18 months from entry into force of this Regulation]. The Commission shall check once a year if the list needs to be updated. [Am. 256]

AddedTitle X Final Provisions

AddedArticle 66 Opening registration for an existing standard

Added1. Until … [OJ: please insert the date = 28 months from the entry into force of this Regulation] holders of SEPs essential to a standard published before the entry into force of this Regulation (‘existing standards’), for which FRAND commitments have or have not been made, may notify the competence centre pursuant to Articles 14, 15 and 17 of any of the existing standards or parts thereof that will be determined in the delegated act in accordance with paragraph (4)Article 65c. The procedures, notification and publication requirements set out in this Regulation apply mutatis mutandis. [Am. 257]

Added2. Until [OJ: please insert the date = 28 months from entry into force of this regulation] implementers of a standard, standard published before the entry into force of this Regulation, for which FRAND commitments have been made may notify pursuant to Article 14(4) the competence centre of any of the existing standards or parts thereof, that will be determined in the delegated act in accordance with paragraph (4). The procedures, notification and publication requirements set out in this Regulation apply mutatis mutandis.

Added3. Until [OJ: please insert the date = 30 months from entry into force of this regulation] a SEP holder or an implementer may request an expert opinion pursuant to Article 18 regarding SEPs essential to an existing standard or parts thereof, that will be determined in the delegated act in accordance with paragraph (4). The requirements and procedures set out in Article 18 apply mutatis mutandis.

Added4. Where the functioning of the internal market is severely distorted due to inefficiencies in the licensing of SEPs, the Commission shall, after an appropriate consultation process, by means of a delegated act pursuant to Article 67, determine which of the existing standards, parts thereof or relevant use cases can be notified in accordance with paragraph (1) or paragraph (2), or for which an expert opinion can be requested in accordance with paragraph (3). The delegated act shall also determine which procedures, notification and publication requirements set out in this Regulation apply to those existing standards. The delegated act shall be adopted within [OJ: please insert the date = 18 months from entry into force of this regulation]. [Am. 258]

Added5. This article shall apply without prejudice to any acts concluded and rights acquired by [OJ: please insert the date = 28 months from entry into force of this regulation].

AddedArticle 67 Exercise of delegation of power

Added1. The power to adopt the delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

Added2. The power to adopt a delegated act referred to in Articles 1(4), 4(5), 65b and 65c and 66(4) shall be conferred on the Commission for an indeterminate period of time from the date of entry into force of this Regulation. [Am. 259]

Added3. The delegation of power referred to in Articles 1(4), 4(5), 65b and 65c and 66(4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. [Am. 260]

Added4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

Added5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

Added6. A delegated act adopted pursuant to Articles 1(4), 4(5), 65b and 65c and 66(4) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or of the Council. [Am. 261]

AddedArticle 68 Committee procedure

Added1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

Added2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

AddedArticle 69 Commission guidance

AddedThe Commission may issue guidance under this Regulation on matters covered by its scope, excluding matters related to the interpretation of Article 101 and Article 102 TFEU.

AddedArticle 70 Evaluation

Added1. By … [OJ: please insert the date = 5 years from entry into force of this Regulation], and every three years thereafter, the Commission shall evaluate the effectiveness and efficiency of the SEP registration and the essentiality check system.implementation of this Regulation. The evaluation shall assess the operation of this Regulation, in particular: [Am. 262]

Added(a) the impact, effectiveness and efficiency of the competence centre and its working methods; [Am. 263]

Added(b) the effectiveness and efficiency of the SEP registration and the essentiality check system; and [Am. 264]

Added(c) the impact that the essentiality check system, the aggregate royalties determination and the FRAND determination system have, in particular on the competitiveness of the Union SEP holders on a global level and on innovation in the Union. [Am. 265]

Added2. By [OJ: please insert the date = 8 years from entry into force of this regulation], and every five years thereafter, the Commission shall evaluate the implementation of this Regulation. The evaluation shall assess the operation of this Regulation, in particular the impact, effectiveness and efficiency of the competence centre and its working methods. [Am. 266]