Activities of Anna HEDH related to 2011/0137(COD)
Plenary speeches (4)
Customs enforcement of intellectual property rights (debate)
Explanations of vote
Explanations of vote
Customs enforcement of intellectual property rights (debate)
Shadow reports (2)
RECOMMENDATION FOR SECOND READING on the Council position at first reading with a view to the adoption of a regulation of the European Parliament and of the Council concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003 PDF (134 KB) DOC (68 KB)
REPORT on the proposal for a regulation of the European Parliament and of the Council concerning customs enforcement of intellectual property rights PDF (559 KB) DOC (824 KB)
Amendments (34)
Amendment 68 #
Proposal for a regulation
Recital 5
Recital 5
(5) Regulation (EC) No 1383/2003 does not cover certain intellectual property rights and excludes certain infringements. In order to strengthen the enforcement of intellectual property rights, customs control should therefore be extended to other types of infringements, such as infringements resulting from parallel trade, as well as other infringements of rights already enforced by customs authorities but not covered by Regulation (EC) No 1383/2003. For the sameis purpose it is appropriate to include in the scope of this Regulation, in addition to the rights already covered by Regulation (EC) No 1383/2003, trade names in so far as they are protected as exclusive property rights under national law, topographies of semiconductor products, utility models and devices to circumvent technological measures, as well as any exclusive intellectual property right established by Union legislation.
Amendment 81 #
Proposal for a regulation
Recital 13
Recital 13
(13) In order to reduce to the minimum the administrative burden and costs, a specific procedure should be introduced for small consignments of counterfeit and pirated goods, which would allow for goods to be destroyed without the agreement of the right-holder. In order to establish the thresholds under which consignments are to be considered as small consignments, this Regulation should delegate to the Commission the power to adopt non- legislative acts of general application in accordance with Article 290 of the Treaty on the Functioning of the European Union. It is of importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level.
Amendment 90 #
Proposal for a regulation
Recital 16
Recital 16
(16) Taking into account the provisional and preventive character of the measures adopted by the customs authorities in this field and the conflicting interests of the parties affected by the measures, some aspects of the procedures should be adapted to ensure a smooth application of the Regulation, whilst respecting the rights of the concerned parties. Thus, with respect to the various notifications envisaged by this Regulation, the customs authorities should notify the most appropriate person, on the basis of the documents concerning the customs treatment or of the situation in which the goods are placed. The periods laid down in this Regulation for the required notifications should be counted from the time those are sent by the customs authorities in order to align all periods of notifications sent to the concerned partieshave been received. The period allowing for a right to be heard before an adverse decision is taken should be three working days after receipt, given that the holders of decisions granting applications for action have voluntarily requested the customs authorities to take action and that the declarants or holders of the goods must be aware of the particular situation of their goods when placed under customs supervision. In the case of the specific procedure for small consignments, where consumers are likely to be directly concerned and cannot be expected to have the same level of diligence as other economic operators usually involved in the accomplishment of customs formalities, that period should be significantly extended.
Amendment 96 #
Proposal for a regulation
Recital 17
Recital 17
(17) Under the ‘Declaration on the TRIPS Agreement and Public Health’ adopted by the Doha WTO Ministerial Conference on 14 November 2001, the TRIPS Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all. In particular with regard to medicines the passage of which across this territory of the European Union, with or without transshipment, warehousing, breaking bulk, or changes in the mode or means of transport, is only a portion of a complete journey beginning and terminating beyond the territory of the Union, customs authorities should, when assessing a risk of infringement of intellectual property rights, take account of any substantial likelihoodthe risk of diversion of these goods onto the market of the Union.
Amendment 100 #
Proposal for a regulation
Recital 17 a (new)
Recital 17 a (new)
(17a) In determining the risk of diversion onto the market of the Union of goods in transit, which the rights holder has identified as counterfeit or infringing intellectual property rights, the declarant, holder or owner of the goods should bear the burden of proving the final destination of the goods. The final destination of the goods should be presumed to be the market of the Union in the absence of clear and convincing evidence to the contrary provided by the declarant, holder or owner of the goods.
Amendment 103 #
Proposal for a regulation
Recital 17 b (new)
Recital 17 b (new)
(17b) Medicines that bear a false trademark or trade description misrepresent their origin and quality level and thus are falsified medicines under Directive 2011/62/EU. Adequate measures should be taken to prevent such products and other health products bearing a false trademark or trade description from reaching patients and consumers in the Union. By ...* the Commission should present a report highlighting the measures it intends to take under Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use, as regards the prevention of the entry into the legal supply chain of falsified medicinal products1. ______________ 1 OJ L 174, 1.7.2011, p. 74. *OJ: please insert the date: 24 months after the date of the adoption of this Regulation.
Amendment 105 #
Proposal for a regulation
Recital 20
Recital 20
(20) Given that customs authorities take action upon prior application, it is appropriate to provide that the holder of the decision granting an application for action by the customs authorities should reimburse all the costs incurred by the customs authorities in taking action to enforce his/her intellectual property rights. Nevertheless, this should not preclude the holder of the decision from seeking compensation from the infringer or other persons, including intermediaries such as carriers or freight forwarders, that might be considered liable according to the legislation of the Member State concerned. Costs and damages incurred by persons other than customs administrations as a result of a customs action, where the goods are detained on the basis of a claim of a third party based on intellectual property, should be governed by the specific legislation in each particular case.
Amendment 112 #
Proposal for a regulation
Article 1 – paragraph 4
Article 1 – paragraph 4
4. This Regulation shall not apply to goods of a non-commercial nature contained in travellers' personal luggage unless there are material indications to suggest that the goods are part of commercial traffic.
Amendment 121 #
Proposal for a regulation
Article 2 – point 1 – point k
Article 2 – point 1 – point k
(k) a utility model as provided forinsofar as it is protected as an exclusive intellectual property right by the legislation of a Member State;,
Amendment 123 #
Proposal for a regulation
Article 2 – point 1 – point m
Article 2 – point 1 – point m
Amendment 127 #
Proposal for a regulation
Article 2 – point 5 – point a
Article 2 – point 5 – point a
(a) goods which arhave been the subject of an action infringing a trade mark trade mark infringement in the Member State where the goods are found and bear without authorisation a trade mark identical to the trade mark validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such a trade mark;
Amendment 135 #
Proposal for a regulation
Article 2 – point 5 – point b
Article 2 – point 5 – point b
(b) goods which arhave been the subject of an action infringing a geographical indication infringement in the Member State where the goods are found and bear or are described by a name or term protected in respect of that geographical indication;
Amendment 137 #
Proposal for a regulation
Article 2 – point 6
Article 2 – point 6
6. ‘pirated goods’ means goods which arhave been the subject of an action infringing aement of copyright or related right or a design in the Member State where the goods are found and which are or contain copies made without the consent of the holder of a copyright or related right or a design, regardless of whether it is registered, or of a person authorised by that holder in the country of production;.
Amendment 139 #
Proposal for a regulation
Article 2 – point 7 – introductory part
Article 2 – point 7 – introductory part
(7) ‘goods suspected of infringing an intellectual property right’ means goods with regard to which there is adequate evidencereasonable grounds to satisfy customs authorities that, in the Member State where these goods are found, are prima facie:
Amendment 143 #
Proposal for a regulation
Article 2 – point 7 – point a
Article 2 – point 7 – point a
(a) goods which are subject of an action infringing an intellectual property right under the law of the Union or of that Member Statein the Member State where the goods are found;
Amendment 147 #
Proposal for a regulation
Article 2 – point 7 – point c
Article 2 – point 7 – point c
(c) any mould or matrix which is specifically designed or adapted for the manufacture of goods infringing an intellectual property right, if such moulds or matrices infringe the right-holder's rights under Union law or the law of that Member Statein the Member State where the goods are found;
Amendment 153 #
Proposal for a regulation
Article 2 – point 17 a (new)
Article 2 – point 17 a (new)
(17a) 'perishable good' means a good that is liable to significantly reduce in value over time or, because of its nature, is in danger of being destroyed.
Amendment 161 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Medicinal products, medical devices and other health products There will be an assumption that medicinal products, medical devices and other health products whose destination is not declared, or whose supply chain is otherwise unclear, are intended to enter the territory of the Union.
Amendment 187 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
3. Before adopting a decision to suspend the release of the goods or to detain them, the customs authorities shall communicate their intention to the declarant or, in cases where goods are to be detained, to the holder of the goods. The declarant or the holder of the goods shall be given the opportunity to express his/her views within three working days of dispatchreceipt of that communication.
Amendment 197 #
Proposal for a regulation
Article 17 – paragraph 3
Article 17 – paragraph 3
3. Before adopting a decision to suspend the release of the goods or to detain them, the customs authorities shall communicate their intention to the declarant or, in cases where goods are to be detained, to the holder of the goods. The declarant or the holder of the goods shall be given the opportunity to express his/her views within three working days of dispatchreceipt of that communication.
Amendment 206 #
Proposal for a regulation
Article 18 – paragraph 3
Article 18 – paragraph 3
3. The customs authorities shall, upon request and if known, provide the holder of the decision granting the application with the names and addresses of the consignee, the consignor, the declarant or the holder of the goods, the customs procedure and the origin, provenance and destination of goods suspected of infringing an intellectual property right. For goods in transit that are suspected of infringing an intellectual property right in the country of destination, the customs authorities may communicate this information to the customs authorities in the destination country using inter alia the World Customs Organisation SAFE Framework.
Amendment 211 #
Proposal for a regulation
Article 19 – point b a (new)
Article 19 – point b a (new)
(ba) to use the information for or in connection with a criminal investigation or criminal proceeding, including those related to an intellectual property right.
Amendment 212 #
Proposal for a regulation
Article 19 – point b b (new)
Article 19 – point b b (new)
(bb) to use the information in settlement negotiations out of court.
Amendment 214 #
Proposal for a regulation
Article 20 – paragraph 1 – subparagraph 1
Article 20 – paragraph 1 – subparagraph 1
Where goods other than those covered by Articles 23 and 24 are suspected of infringing an intellectual property right, the holder of the decision granting the application shall initiate proceedings to determine whether an intellectual property right has been infringed within 10 working days of dispatchreceipt of the decision to suspend the release of the goods or to detain them.
Amendment 217 #
Proposal for a regulation
Article 20 – paragraph 1 – subparagraph 2
Article 20 – paragraph 1 – subparagraph 2
In the case of perishable goods suspected of infringing an intellectual property right, the period for initiating the proceedings referred to in the first subparagraph shall be three working days of dispatchreceipt of the decision to suspend the release of the goods or to detain them.
Amendment 224 #
Proposal for a regulation
Article 23 – paragraph 1 – point a
Article 23 – paragraph 1 – point a
(a) the holder of the decision granting the application has informed the customs authorities in writing of his/her agreement to the destruction of the goods within 10 working days, or three working days in the case of perishable goods, of dispatchreceipt of the decision to suspend the release of the goods or to detain them;.
Amendment 226 #
Proposal for a regulation
Article 23 – paragraph 1 – point b
Article 23 – paragraph 1 – point b
(b) the declarant or holder of the goods has confirmed in writing to the customs authorities his/her agreement to the destruction of the goods within 10 working days, or three working days in the case of perishable goods, of dispatchreceipt of the decision to suspend the release of the goods or to detain them.
Amendment 230 #
Proposal for a regulation
Article 23 – paragraph 4 – subparagraph 1
Article 23 – paragraph 4 – subparagraph 1
Where there is no agreement to destruction, the holder of the decision granting the application shall initiate proceedings to determine whether an intellectual property right has been infringed within 10 working days, or three working days in the case of perishable goods, of dispatchreceipt of the decision to suspend the release of the goods or to detain them.
Amendment 232 #
Proposal for a regulation
Article 24 – paragraph 1 – point a
Article 24 – paragraph 1 – point a
(a) goods suspected of beingthat are obviously counterfeit or pirated goods;.
Amendment 236 #
Proposal for a regulation
Article 24 – paragraph 4
Article 24 – paragraph 4
4. The declarant or holder of the goods shall be given the opportunity to express his/her point of view within 20 working days of dispatchreceipt of the decision to suspend the release of the goods or to detain them.
Amendment 238 #
Proposal for a regulation
Article 24 – paragraph 5
Article 24 – paragraph 5
5. The goods concerned may be destroyed where, within 20 working days of dispatchreceipt of the decision to suspend the release of the goods or to detain them, the declarant or holder of the goods has confirmed to the customs authorities his/her agreement to the destruction of the goods.
Amendment 241 #
Proposal for a regulation
Article 24 – paragraph 8
Article 24 – paragraph 8
8. Where the declarant or holder of the goods objects to the destruction of the goods, the customs authorities shall inform the holder of the decision granting the application of such objection and of the number of items and their nature, including images of those items or samples where appropriate.
Amendment 244 #
Proposal for a regulation
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Where requested by the customs authorities, the holder of the decision granting the application shall reimburse all costs incurred by the customs administration in keeping goods under customs supervision in accordance with Articles 16 and 17 and in destroying goods in accordance with Articles 20 and 23. The holder of a decision shall, upon request, be given information by the customs authorities on where and how the detained goods are being stored and on the costs associated with this storage, and shall be given the opportunity to comment on this storage.
Amendment 246 #
Proposal for a regulation
Article 27 – paragraph 2
Article 27 – paragraph 2
2. This Article shall be without prejudice to the right of the holder of the decision granting the application to seek compensation from the infringer or other persons, including intermediaries such as carriers or freight forwarders, in accordance with the legislation of the Member State where the goods were found.