New ECJ reference on design copyright

The UK IPO mentions a new reference to the ECJ, link here. Polish readers may prefer this link. The case relates to Articles 17 and 19 of the Design Directive 98/71; the former enshrines the principle of "cumulation" of copyright and design protection, and the latter is the implementation provision.

In implementing Art 17 without explicit transitional provisions, Italy did away with the principle of separability, and reintroduced copyright protection. Some Italian cases have precluded copyright protection for pre-existing works, whereas others have held copyright to exist in even those pre-existing works which have been around for many years.

This reference will, hopefully, enable the ECJ to sort out the Italian dilemma at their usual stately speed. It is, however, pretty outrageous to legislate with such flimsy transitional provisions, and the EU knows full well it is not meant to do this; Art 20 of the Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation states that "Provisions laying down ... transitional provisions (in particular those relating to the effects of the act on existing situations) ... shall be drawn up in precise terms."

Parliament, the Commission and the Council all signed up to that, so when were they thinking of applying it?