This revision project is based on a proposition from the 2011 European Commission and will introduce certain changes to current legislation(1). It is presently awaiting a second reading by the European Parliament.
The reappraisal of this legislation has shown the need to introduce improvements to the legal framework in order to reinforce the monitoring by customs officials of intellectual property rights abuses, as well as guaranteeing better legal safeguards.
What are the most significant changes?
The legislation concerns the question of goods in transit or transshipment across European Union territory, and reviews the disputed CJEU(2) ruling on this subject. As a reminder, the current situation limits the possibilities afforded to customs officials regarding non-EU goods in transit or transshipment across the Union which are suspected of being counterfeit. These cannot currently be retained by customs unless proof of commercial exploitation on European Union territory is obtained.
The current project reverses the onus of proof, in that items would be considered as destined for the European market unless otherwise proven by either the owner or transporter of the goods. The goal is obviously to enable customs authorities to act as soon as merchandise enters European Union territory, so that any goods suspected of being counterfeit can be immediately intercepted.
Greater powers would also be granted to customs officers to improve collaboration with destination countries in order to inform them that contraband products are heading their way so facilitating confiscation on arrival.
In a further amendment, the Ruling overturns the solution proposed by the Sopropé(3) judgment
at the European Court of Justice and instigates a plenary “right to be heard”. Before any detention of goods, contact must be made with either the expeditor or the recipient to allow them to explain their intentions and avoid confiscation if appropriate.
However, this new Ruling will not apply to personal goods held by an individual in transit. This loophole will not be closed unless national legislation specifically provides for sanctions.
Concerning the seizure of small packages(4), a specific procedure is envisaged which would allow goods to be destroyed without the consent of the rights’ holder, once he has authorized the application of this procedure.
The merchandise would be destroyed when it is beyond dispute that the products are counterfeit and when the future recipient either accepts the verdict or fails to respond within ten working days.
The present Ruling amendment will certainly provide more efficient protection for rights’ holders, thereby stimulating creativity and innovation whilst offering consumers high-quality, reliable products.
(1) Ruling n°1383/2003 of 27 July 2003 modified by Ruling n°1891/2004 of 21 October 2004.
(2) Joint cases: European Community Court of Justice, 1st December 2011 Philips (C-446/09) and Nokia (C-495-09)
(3) Court of Justice of the European Union, 19 December 2008, case C-349/07 Sopropé Organizações de Calçado Ldac/Fazenda Publica.
(4) A small package is defined by the Commission as being a postal item containing three units or less, and weighing less than two kilograms.