Flos Opinion: can anyone help?

The Opinion of Advocate General Yve Bot in Case C-168/09 Flos SpA v Semeraro Casa e Famiglia SpA was published on the Curia website on Friday, in ten official languages of the European Union -- but not in English. The questions referred by the Tribunale di Milano for a preliminary ruling were as follows:

"Must Articles 17 and 19 of Directive 98/71/EC [on the legal protection of designs] be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which - albeit meeting the requirements for protection laid down in copyright law - fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force, in so far as they had never been registered as designs or in so far as the relevant registration had already expired by that date?

If the answer to the first question is in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which - albeit meeting the requirements for protection laid down in copyright law - fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party - without authorisation from the holder of the copyright on such designs - has already produced and marketed products based on such designs in that State?

If the answers to the first and second questions are in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which - albeit meeting the requirements for protection laid down in copyright law - fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party - without authorisation from the holder of the copyright on such designs - has already produced and marketed products based on such designs in that State, where protection is precluded for a substantial period (a period of 10 years)?".

According to the Advocate General, the court is advised to rule as follows (in French --but you can read it in Latvian too ...):

«1) L’article 17 de la directive 98/71/CE du Parlement européen et du Conseil, du 13 octobre 1998, sur la protection juridique des dessins ou modèles, doit être interprété en ce sens qu’il s’oppose à la législation d’un État membre qui prévoit que les dessins et les modèles tombés dans le domaine public avant l’entrée en vigueur des dispositions nationales transposant cette directive ne bénéficient pas de la protection par le droit d’auteur.

2) L’article 17 de la directive 98/71 ne s’oppose pas à l’instauration d’une période transitoire raisonnable durant laquelle les personnes, qui avaient pu légitimement produire et commercialiser un produit imitant les formes d’un modèle tombé dans le domaine public avant l’entrée en vigueur des dispositions nationales transposant cette directive, peuvent continuer à commercialiser ce produit.»

Can anyone provide information concerning the background to this dispute and as to what the Advocate General is generally advocating?