Thursday 16 February 2012

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”.


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 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.

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