European Parliament (IMCO): Customs enforcement of intellectual property rights

After the introductory blog post about the proposed EU regulation about customs enforcement of intellectual property rights COM(2011) 285, we follow this future ”more robust enforcement tool” to the European Parliament.

The committee stage in the EP is soon closing for the new regulation. The Committee on the Internal Market and Consumer Protection (IMCO) is scheduled to vote on 29 February 2012 (agenda item No 21).

The draft report by Jürgen Creutzmann PE470.069 proposes 60 amendments to the Commission text.

The rapporteur wants to make the distinction between procedural and substantive intellectual property (IP) law even clearer. Thus, the regulation should not set out any criterion for determining an infringement of intellectual property rights (IPR).

The report does not subscribe to a simplified procedure only for counterfeit and pirated goods, but wants all IPR infringements to be treated in the same, simplified manner.

Small consignments are a special case. Creutzmann does not want the Commission to use a delegated act to define a small consignment. Hence, he introduces a definition into the regulation. A total weight of less than 2 kilograms seems clear enough, but does ”less than three items” mean a maximum of two?

The explanatory statement (from page 44) shows unwavering support for toughening customs control, welcoming the extension of the scope to all types of IPR infringements contemplated by the EU's and member states' substantive legislation, including parallel trade and overruns.

Since this regulation should remain procedural, Creutzmann calls for future substantive legislation, as in:

The rapporteur is of the opinion that the substantive IP law should recognise the principle that fake goods also constitute infringements of IPR when they are for private use and encourages the Commission to address this problem by revising the respective legislation.

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The principle of freedom of transit was never intended to apply to illicit trade, including goods which infringe IPRs. Therefore the rapporteur encourages the Commission to ensure in future revisions of substantive IP law that goods placed under suspensive procedures that are imitations or copies of goods protected in the EU by IPRs can always be classified as counterfeit and pirated goods.

Opinions

Marielle Gallo has prepared the opinion PE478.335 of the Committee on Legal Affairs (JURI) about the proposal to replace regulation 1383/2003. Some amendments were proposed.

The opinion PE476.120 of the Committee on International Trade (INTA) was prepared by Josefa Andrés Barea. The opinion discusses especially goods in transit, parallel trade and international cooperation.


Amendments

In addition to the sixty amendments proposed by the rapporteur, IMCO can look forward to voting on a number of other amendments (61 – 259), found in document PE480.583.

The preliminary date for the EP plenary debate is 22 May 2012.



Ralf Grahn
speaker on EU affairs, especially digital policy and law

P.S. 1: For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. More than 900 euroblogs are aggregated by multilingual Bloggingportal.eu. Is your blog already listed among them? Are you following the debates which matter for your future?

P.S. 2: A few moments ago, the petition launched by @Avaaz for the European Parliament (and the national parliaments) to reject #ACTA had already been signed by 2,363,595 netizens, but more are welcome until the official funeral of the anti-piracy treaty.

EU customs enforcement of intellectual property rights

The digital agenda and the intellectual property agenda of the EU are closely related.

On 24 May 2011, the same day the European Commission published its strategy paper A Single Market for Intelletual Property Rights COM(2011) 287, it also proposed new measures to toughen the control at the borders of the customs union.

For an overview, you can read MEMO/11/327 Customs enforcement of intellectual property rights – Frequently Asked Questions.


COM(2011) 285

The detailed proposal for a new regulation in English (pdf):

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning customs enforcement of intellectual property rights; Brussels, 24.5.2011 COM(2011) 285 final (32 pages)

This legislative proposal is available in all 23 official EU languages.

The Commission offers the following reasons for tightening the rules of IPR enforcement at the customs borders (page 1):

IPR infringements and the resulting trade in infringing goods are of growing concern, particularly in a globalised economy. In addition to the economic consequences for industry, the infringing products may pose serious health and safety risks to consumers. In its Communication on a Single Market Act [COM(2011) 206], the Commission therefore recalled that customs authorities should be able to provide greater protection for intellectual-property rights through revised legislation.

One thing the ACTA debate has demonstrated, is how the external and internal aspects of IPR protection are communicating vessels. The Commission clearly spells out the relationship (page 2):

The proposal is in line with the Union’s longstanding policy and strategy on the protection of IPR. This policy has been reflected in several Communications from the Commission, such as Europe 2020 and the Communication on a Single Market Act [COM(2010) 608]. Protection of intellectual property stimulates innovation and effective enforcement has a positive impact on employment, consumers and society as a whole.

The border enforcement of IPR by customs complements enforcement on the internal market, as well trade initiatives with third countries and in international fora. The proposal is an integral part of the strategic framework outlined in the new Communication from the Commission on a Single Market for Intellectual Property Rights of [24 May 2011, COM(2011) 287].

With regard to the legal basis, the Commission reasoned (page 3):

The Regulation concerns the commercial aspects of intellectual property rights in that it deals with measures enabling customs to enforce intellectual property rights at the border on goods that are internationally traded. Article 3(1) of the Treaty on the Functioning of the European Union provides exclusive competence on the European Union in the area of common commercial policy.

The new regulation is intended to repeal and replace the existing Council regulation No 1383/2003.

Among the proposed novelties meant to introduce new restrictions (page 4):

In order to strengthen enforcement, it is proposed to broaden the scope covered by Regulation (EC) No 1383/2003, by including trade names, topographies of semiconductor products and utility models. It is also proposed to widen the scope of the Regulation by including infringements resulting from parallel trade and devices to circumvent technological measures, as well as other infringements of rights already enforced by customs.

In some cases counterfeit or pirated goods could be more easily destroyed than currently. Small consignments are dealt with in this context, but with a specific light procedure.

The scope of intellectual property rights is also widened.

All in all, the directly applicable new regulation, with 37 Articles, is described as a ”more robust enforcement tool”.

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We are going to return to the legislative procedure for the proposed regulation in later blog posts.



Ralf Grahn
speaker on EU affairs, especially digital policy and law

P.S. 1: For better or for worse, between the global issues and the national level, the European Union shapes our digital future and online freedoms. More than 900 euroblogs are aggregated by multilingual Bloggingportal.eu. Is your blog already listed among them? Are you following the debates which matter for your future?

P.S. 2: The @Avaaz petition for the European Parliament (and the national parliaments) to reject #ACTA has already been signed by 2,341,157 netizens, but more are welcome until the anti-piracy treaty has been officially buried.

EU: TIR Convention 1975 amendments proposed

The Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention) of 14 November 1975 was approved on behalf of the European Economic Community by way of Council Regulation (EEC) No 2112/78. The Convention entered into force in the Community on 20 June 1983.

The Commission has now published a proposal for the European Community (European Union) to adopt the latest amendments to the TIR Convention agreed by the United Nations Economic Commission for Europe (UNECE) Working Party on Customs Questions Affecting Transport.

The UNECE Working Party on Customs Questions Affecting Transport agreed that some modifications of the TIR Convention are necessary. These modifications concern mainly articles that deal with the financial responsibility and recovery of the customs debt. By reorganizing and clarifying the relevant articles the procedure is easier to understand and to apply. Other amendments that were proposed introduce in the text of the Convention the definition of the international organization and clearly define the process of authorization of this organization to organize the international guarantee chain.


The Commission’s Proposal for a Council Decision on the position to be taken by the Community concerning the proposal to amend the Customs Convention on the International Transport of goods under cover of TIR carnets (TIR Convention 1975) (Brussels, 26.5.2009, COM(2009) 239 final).







Ralf Grahn

EU customs: Economic Operators Registration and Identification number (EORI)

This eliminates one strip of red tape for importers of goods into the European Union: A lower level implementing Commission Regulation has been published in the Official Journal of the European Union (OJEU) 17.4.2009 L 98/3, and it is set to enter into force on 1 July 2009.

EORI - single identification number

The object of the exercise is to admit a single EORI number (Economic Operators Registration and Identification number), unique in the European Community, assigned by a Member State customs authority or designated authority or authorities to economic operators and to other persons in accordance with the rules laid down in Chapter 6.


The act is called Commission Regulation (EC) No 312/2009 of 16 April 2009 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code.




Ralf Grahn

European Counterfeiting and Piracy Observatory launched

The European Counterfeiting and Piracy Observatory was duly launched 2 April 2009. The Commission has now published some additional information on the aims and organisation of the Observatory (Frequently Asked Questions; MEMO/ 09/146).



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Council’s anti-counterfeiting and anti-piracy plan

The Observatory is part of the European Union’s actions, put into context by the 25 September 2008 Resolution of the Competitiveness Council on a comprehensive European anti-counterfeiting and anti-piracy plan.



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EU Customs Action Plan to Combat IPR Infringements 2009-2012

A short while ago we noted another part of the European anti-counterfeiting and anti-piracy plan, Council Resolution 2009/C 71/01 of 16 March 2009 on the EU Customs Action Plan to combat IPR infringements for the years 2009 to 2012, published in the Official Journal of the European Union (OJEU) 25.3.2009 C 71/1.



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Industrial property rights

The Council Resolution, in turn, was based on the Commission’s Communication An Industrial Property Rights Strategy for Europe (Brussels 16.7.2008; COM(2008) 465 final), dealing with patents and trademarks.



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Community Trade Mark Regulation

Readers may have noticed the recast Community Trade Mark Regulation, published in the Official Journal of the European Union (OJEU) 24.3.2009 L 78/1. Officially, this text with EEA relevance is called:

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version).


Ralf Grahn

EU customs cooperation: IPR infringements

European Union customs cooperation against counterfeiting and piracy has advanced one step with the new EU customs action plan to combat infringements of intellectual property rights (IPR) for the years 2009 to 2012.


EU Customs Action Plan to Combat IPR Infringements 2009-2012

The new programme strives to take into account the growing threat posed by counterfeit goods to health and safety and to the environment, as well as the latest trends in the area of counterfeiting and piracy, especially with regard to the new challenges posed by the globalisation of world trade and Internet sales.

Council Resolution 2009/C 71/01 of 16 March 2009 on the EU Customs Action Plan to combat IPR infringements for the years 2009 to 2012 has been published in the Official Journal of the European Union (OJEU) 25.3.2009 C 71/1.


Ralf Grahn

EU TFEU: Free circulation of imported goods

Once goods imported into the European Union have cleared customs border control, they are allowed to circulate freely within the EU, subject to the same rules and restrictions which apply to Community products.

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Article 24 of the Treaty establishing the European Communities (TEC) offers us the opportunity to see a provision untouched by the intergovernmental conference (IGC 2007). The name of the treaty changes to the Treaty on the Functioning of the European Union (TFEU), and there were changes when Part Three was named Policies and internal actions of the Union, and Title I The internal market was inserted.

As shown in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (ToL), most provisions have been given a number initially, but will be given a new, more palatable number in coming consolidated versions of the treaties.

Thus, Article 24 TEC is numbered 24 in TFEU (ToL), but will be renumbered Article 29 TFEU (OJ 29.12.2007 C 306/206), but even the horizontal amendments leave the wording alone.

Here is the text (OJ 29.12.2006 C 321 E/51 for the latest consolidated version of the current treaties):

Article 24 TFEU (ToL), after renumbering Article 29 TFEU

Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.

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The corresponding provision in the draft Treaty establishing a Constitution for Europe is Article III-37. The wording is identical, which you can check by looking up OJ 18.7.2003 C 169/33.

The Treaty establishing a Constitution for Europe presented five different Articles as one, but Article III-151(3) reproduces exactly the same wording as the Article under discussion (OJ 16.12.2004 C 310/65).

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But the third country exporter or the EU importer needs to know how to get the products legally into the European Community (European Union) and thus into free circulation. There are three cumulative criteria to fulfil before imported goods are cleared for free circulation within the European Community:

1) Import ‘formalities’ have to be complied with.

2) Customs duties and other charges have to be paid.

3) The goods have not benefited from drawback of duties or charges.


A few pointers:

Customs authorities play a crucial role. ‘Import formalities’ are much more than what the word ‘formality’ would lead one to believe. In addition to customs duties, Customs officials implement and enforce Community legislation concerning commercial policy measures (quotas, anti-dumping, pirated goods) as well as security, environmental, consumer protection, cultural and agricultural controls. The following Commission web page offers a quick introduction:

http://ec.europa.eu/taxation_customs/customs/customs_controls/general/index_en.htm

The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:

http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm


Once goods from third countries have cleared import requirements and duties, they are allowed to circulate freely in the internal market (single market). The Commission published an introduction to the single market 14 March 2008, a 20 page brochure aimed at the general reader: Single market for goods – Information pack 2008. Available at:

http://ec.europa.eu/enterprise/regulation/goods/docs/single_mk_info_08/2007_5598_en.pdf

These introductions serve as a base for more detailed information gathering.


Ralf Grahn