30.4.2004 EN Official Journal of the European Communities L 157/45 DIRECTIVE 2004/48/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 on the enforcement of intellectual property rights (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Economic and Social Committee (1), After consulting the Committee of the Regions, Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), Whereas: (1) The achievement of the Internal Market entails eliminating restrictions on freedom of movement and distortions of competition, while creating an environment conducive to innovation and investment. In this context, the protection of intellectual property is an essential element for the success of the Internal Market. The protection of intellectual property is important not only for promoting innovation and creativity, but also for developing employment and improving competitiveness. (2) The protection of intellectual property should allow the inventor or creator to derive a legitimate profit from his invention or creation. It should also allow the widest possible dissemination of works, ideas and new know-how. At the same time, it should not hamper freedom of expression, the free movement of information, or the protection of personal data, including on the Internet. (3) However, without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied effectively in the Community. In this respect, the means of enforcing intellectual property rights are of paramount importance for the success of the Internal Market. (4) At international level, all Member States, as well as the Community itself as regards matters within its competence, are bound by the Agreement on Trade-Related Aspects of Intellectual Property (the "TRIPS Agreement"), approved, as part of the multilateral negotiations of the Uruguay Round, by Council Decision 94/800/EC (3) and concluded in the framework of the World Trade Organisation. (5) The TRIPS Agreement contains, in particular, provisions on the means of enforcing intellectual property rights, which are common standards applicable at international level and implemented in all Member States. This Directive should not affect Member States' international obligations, including those under the TRIPS Agreement. (6) There are also international conventions to which all Member States are parties and which also contain provisions on the means of enforcing intellectual property rights. These include, in particular, the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. (7) It emerges from the consultations held by the Commission on this question that, in the Member States, and despite the TRIPS Agreement, there are still major disparities as regards the means of enforcing intellectual property rights. For instance, the arrangements for applying provisional measures, which are used in particular to preserve evidence, the calculation of damages, or the arrangements for applying injunctions, vary widely from one Member State to another. In some Member States, there are no measures, procedures and remedies such as the right of information and the recall, at the infringer's expense, of the infringing goods placed on the market. (8) The disparities between the systems of the Member States as regards the means of enforcing intellectual property rights are prejudicial to the proper functioning of the Internal Market and make it impossible to ensure that intellectual property rights enjoy an equivalent level of protection throughout the Community. This situation does not promote free movement within the Internal Market or create an environment conducive to healthy competition. (9) The current disparities also lead to a weakening of the substantive law on intellectual property and to a fragmentation of the Internal Market in this field. This causes a loss of confidence in the Internal Market in business circles, with a consequent reduction in investment in innovation and creation. Infringements of intellectual property rights appear to be increasingly linked to organised crime. Increasing use of the Internet enables pirated products to be distributed instantly around the globe. Effective enforcement of the substantive law on intellectual property should be ensured by specific action at Community level. Approximation of the legislation of the Member States in this field is therefore an essential prerequisite for the proper functioning of the Internal Market. (10) The objective of this Directive is to approximate legislative systems so as to ensure a high, equivalent and homogeneous level of protection in the Internal Market. (11) This Directive does not aim to establish harmonised rules for judicial cooperation, jurisdiction, the recognition and enforcement of decisions in civil and commercial matters, or deal with applicable law. There are Community instruments which govern such matters in general terms and are, in principle, equally applicable to intellectual property. (12) This Directive should not affect the application of the rules of competition, and in particular Articles 81 and 82 of the Treaty. The measures provided for in this Directive should not be used to restrict unduly competition in a manner contrary to the Treaty. (13) It is necessary to define the scope of this Directive as widely as possible in order to encompass all the intellectual property rights covered by Community provisions in this field and/or by the national law of the Member State concerned. Nevertheless, that requirement does not affect the possibility, on the part of those Member States which so wish, to extend, for internal purposes, the provisions of this Directive to include acts involving unfair competition, including parasitic copies, or similar activities. (14) The measures provided for in Articles 6(2), 8(1) and 9(2) need to be applied only in respect of acts carried out on a commercial scale. This is without prejudice to the possibility for Member States to apply those measures also in respect of other acts. Acts carried out on a commercial scale are those carried out for direct or indirect economic or commercial advantage; this would normally exclude acts carried out by end-consumers acting in good faith. (15) This Directive should not affect substantive law on intellectual property, Directive 95/46/EC of 24 October 1995 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (4), Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (5) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (6). (16) The provisions of this Directive should be without prejudice to the particular provisions for the enforcement of rights and on exceptions in the domain of copyright and related rights set out in Community instruments and notably those found in Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (7) or in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (8). (17) The measures, procedures and remedies provided for in this Directive should be determined in each case in such a manner as to take due account of the specific characteristics of that case, including the specific features of each intellectual property right and, where appropriate, the intentional or unintentional character of the infringement. (18) The persons entitled to request application of those measures, procedures and remedies should be not only the rightholders but also persons who have a direct interest and legal standing in so far as permitted by and in accordance with the applicable law, which may include professional organisations in charge of the management of those rights or for the defence of the collective and individual interests for which they are responsible. (19) Since copyright exists from the creation of a work and does not require formal registration, it is appropriate to adopt the rule laid down in Article 15 of the Berne Convention, which establishes the presumption whereby the author of a literary or artistic work is regarded as such if his name appears on the work. A similar presumption should be applied to the owners of related rights since it is often the holder of a related right, such as a phonogram producer, who will seek to defend rights and engage in fighting acts of piracy. (20) Given that evidence is an element of paramount importance for establishing the infringement of intellectual property rights, it is appropriate to ensure that effective means of presenting, obtaining and preserving evidence are available. The procedures should have regard to the rights of the defence and provide the necessary guarantees, including the protection of confidential information. For infringements committed on a commercial scale it is also important that the courts may order access, where appropriate, to banking, financial or commercial documents under the control of the alleged infringer. (21) Other measures designed to ensure a high level of protection exist in certain Member States and should be made available in all the Member States. This is the case with the right of information, which allows precise information to be obtained on the origin of the infringing goods or services, the distribution channels and the identity of any third parties involved in the infringement. (22) It is also essential to provide for provisional measures for the immediate termination of infringements, without awaiting a decision on the substance of the case, while observing the rights of the defence, ensuring the proportionality of the provisional measures as appropriate to the characteristics of the case in question and providing the guarantees needed to cover the costs and the injury caused to the defendant by an unjustified request. Such measures are particularly justified where any delay would cause irreparable harm to the holder of an intellectual property right. (23) Without prejudice to any other measures, procedures and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe the rightholder's industrial property right. The conditions and procedures relating to such injunctions should be left to the national law of the Member States. As far as infringements of copyright and related rights are concerned, a comprehensive level of harmonisation is already provided for in Directive 2001/29/EC. Article 8(3) of Directive 2001/29/EC should therefore not be affected by this Directive. (24) Depending on the particular case, and if justified by the circumstances, the measures, procedures and remedies to be provided for should include prohibitory measures aimed at preventing further infringements of intellectual property rights. Moreover there should be corrective measures, where appropriate at the expense of the infringer, such as the recall and definitive removal from the channels of commerce, or destruction, of the infringing goods and, in appropriate cases, of the materials and implements principally used in the creation or manufacture of these goods. These corrective measures should take account of the interests of third parties including, in particular, consumers and private parties acting in good faith. (25) Where an infringement is committed unintentionally and without negligence and where the corrective measures or injunctions provided for by this Directive would be disproportionate, Member States should have the option of providing for the possibility, in appropriate cases, of pecuniary compensation being awarded to the injured party as an alternative measure. However, where the commercial use of counterfeit goods or the supply of services would constitute an infringement of law other than intellectual property law or would be likely to harm consumers, such use or supply should remain prohibited. (26) With a view to compensating for the prejudice suffered as a result of an infringement committed by an infringer who engaged in an activity in the knowledge, or with reasonable grounds for knowing, that it would give rise to such an infringement, the amount of damages awarded to the rightholder should take account of all appropriate aspects, such as loss of earnings incurred by the rightholder, or unfair profits made by the infringer and, where appropriate, any moral prejudice caused to the rightholder. As an alternative, for example where it would be difficult to determine the amount of the actual prejudice suffered, the amount of the damages might be derived from elements such as the royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. The aim is not to introduce an obligation to provide for punitive damages but to allow for compensation based on an objective criterion while taking account of the expenses incurred by the rightholder, such as the costs of identification and research. (27) To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions in intellectual property infringement cases. (28) In addition to the civil and administrative measures, procedures and remedies provided for under this Directive, criminal sanctions also constitute, in appropriate cases, a means of ensuring the enforcement of intellectual property rights. (29) Industry should take an active part in the fight against piracy and counterfeiting. The development of codes of conduct in the circles directly affected is a supplementary means of bolstering the regulatory framework. The Member States, in collaboration with the Commission, should encourage the development of codes of conduct in general. Monitoring of the manufacture of optical discs, particularly by means of an identification code embedded in discs produced in the Community, helps to limit infringements of intellectual property rights in this sector, which suffers from piracy on a large scale. However, these technical protection measures should not be misused to protect markets and prevent parallel imports. (30) In order to facilitate the uniform application of this Directive, it is appropriate to provide for systems of cooperation and the exchange of information between Member States, on the one hand, and between the Member States and the Commission on the other, in particular by creating a network of correspondents designated by the Member States and by providing regular reports assessing the application of this Directive and the effectiveness of the measures taken by the various national bodies. (31) Since, for the reasons already described, the objective of this Directive can best be achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (32) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of that Charter, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I Objective and scope Article 1 Subject-matter This Directive concerns the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights. For the purposes of this Directive, the term "intellectual property rights" includes industrial property rights. Article 2 Scope 1. Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as those means may be more favourable for rightholders, the measures, procedures and remedies provided for by this Directive shall apply, in accordance with Article 3, to any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned. 2. This Directive shall be without prejudice to the specific provisions on the enforcement of rights and on exceptions contained in Community legislation concerning copyright and rights related to copyright, notably those found in Directive 91/250/EEC and, in particular, Article 7 thereof or in Directive 2001/29/EC and, in particular, Articles 2 to 6 and Article 8 thereof. 3. This Directive shall not affect: (a) the Community provisions governing the substantive law on intellectual property, Directive 95/46/EC, Directive 1999/93/EC or Directive 2000/31/EC, in general, and Articles 12 to 15 of Directive 2000/31/EC in particular; (b) Member States' international obligations and notably the TRIPS Agreement, including those relating to criminal procedures and penalties; (c) any national provisions in Member States relating to criminal procedures or penalties in respect of infringement of intellectual property rights. CHAPTER II Measures, procedures and remedies Section 1 General provisions Article 3 General obligation 1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. Article 4 Persons entitled to apply for the application of the measures, procedures and remedies 1. Member States shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Chapter: (a) the holders of intellectual property rights, in accordance with the provisions of the applicable law, (b) all other persons authorised to use those rights, in particular licensees, in so far as permitted by and in accordance with the provisions of the applicable law, (c) intellectual property collective rights management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law, (d) professional defence bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law. Article 5 Presumption of authorship or ownership For the purposes of applying the measures, procedures and remedies provided for in this Directive, (a) for the author of a literary or artistic work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings, it shall be sufficient for his name to appear on the work in the usual manner; (b) the provision under (a) shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter. Section 2 Evidence Article 6 Evidence 1. Member States shall ensure that, on application by a party which has presented reasonably available evidence sufficient to support its claims, and has, in substantiating those claims, specified evidence which lies in the control of the opposing party, the competent judicial authorities may order that such evidence be presented by the opposing party, subject to the protection of confidential information. For the purposes of this paragraph, Member States may provide that a reasonable sample of a substantial number of copies of a work or any other protected object be considered by the competent judicial authorities to constitute reasonable evidence. 2. Under the same conditions, in the case of an infringement committed on a commercial scale Member States shall take such measures as are necessary to enable the competent judicial authorities to order, where appropriate, on application by a party, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information. Article 7 Measures for preserving evidence 1. Member States shall ensure that, even before the commencement of proceedings on the merits of the case, the competent judicial authorities may, on application by a party who has presented reasonably available evidence to support his claims that his intellectual property right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information. Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto. Those measures shall be taken, if necessary without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the rightholder or where there is a demonstrable risk of evidence being destroyed. Where measures to preserve evidence are adopted without the other party having been heard, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the parties affected with a view to deciding, within a reasonable period after the notification of the measures, whether the measures shall be modified, revoked or confirmed. 2. Member States shall ensure that the measures to preserve evidence may be subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant as provided for in paragraph 4. 3. Member States shall ensure that the measures to preserve evidence are revoked or otherwise cease to have effect, upon request of the defendant, without prejudice to the damages which may be claimed, if the applicant does not institute, within a reasonable period, proceedings leading to a decision on the merits of the case before the competent judicial authority, the period to be determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer. 4. Where the measures to preserve evidence are revoked, or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures. 5. Member States may take measures to protect witnesses' identity. Section 3 Right of information Article 8 Right of information 1. Member States shall ensure that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who: (a) was found in possession of the infringing goods on a commercial scale; (b) was found to be using the infringing services on a commercial scale; (c) was found to be providing on a commercial scale services used in infringing activities; or (d) was indicated by the person referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services. 2. The information referred to in paragraph 1 shall, as appropriate, comprise: (a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers; (b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question. 3. Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which: (a) grant the rightholder rights to receive fuller information; (b) govern the use in civil or criminal proceedings of the information communicated pursuant to this Article; (c) govern responsibility for misuse of the right of information; or (d) afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit to his own participation or that of his close relatives in an infringement of an intellectual property right; or (e) govern the protection of confidentiality of information sources or the processing of personal data. Section 4 Provisional and precautionary measures Article 9 Provisional and precautionary measures 1. Member States shall ensure that the judicial authorities may, at the request of the applicant: (a) issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by national law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the rightholder; an interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right; injunctions against intermediaries whose services are used by a third party to infringe a copyright or a related right are covered by Directive 2001/29/EC; (b) order the seizure or delivery up of the goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce. 2. In the case of an infringement committed on a commercial scale, the Member States shall ensure that, if the injured party demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of his bank accounts and other assets. To that end, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information. 3. The judicial authorities shall, in respect of the measures referred to in paragraphs 1 and 2, have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the rightholder and that the applicant's right is being infringed, or that such infringement is imminent. 4. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 may, in appropriate cases, be taken without the defendant having been heard, in particular where any delay would cause irreparable harm to the rightholder. In that event, the parties shall be so informed without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable time after notification of the measures, whether those measures shall be modified, revoked or confirmed. 5. Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 are revoked or otherwise cease to have effect, upon request of the defendant, if the applicant does not institute, within a reasonable period, proceedings leading to a decision on the merits of the case before the competent judicial authority, the period to be determined by the judicial authority ordering the measures where the law of a Member State so permits or, in the absence of such determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the longer. 6. The competent judicial authorities may make the provisional measures referred to in paragraphs 1 and 2 subject to the lodging by the applicant of adequate security or an equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant as provided for in paragraph 7. 7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures. Section 5 Measures resulting from a decision on the merits of the case Article 10 Corrective measures 1. Without prejudice to any damages due to the rightholder by reason of the infringement, and without compensation of any sort, Member States shall ensure that the competent judicial authorities may order, at the request of the applicant, that appropriate measures be taken with regard to goods that they have found to be infringing an intellectual property right and, in appropriate cases, with regard to materials and implements principally used in the creation or manufacture of those goods. Such measures shall include: (a) recall from the channels of commerce, (b) definitive removal from the channels of commerce, or (c) destruction. 2. The judicial authorities shall order that those measures be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so. 3. In considering a request for corrective measures, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. Article 11 Injunctions Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC. Article 12 Alternative measures Member States may provide that, in appropriate cases and at the request of the person liable to be subject to the measures provided for in this Section, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in this Section if that person acted unintentionally and without negligence, if execution of the measures in question would cause him disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory. Section 6 Damages and legal costs Article 13 Damages 1. Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him as a result of the infringement. When the judicial authorities set the damages: (a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement; or (b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question. 2. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, Member States may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established. Article 14 Legal costs Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this. Section 7 Publicity measures Article 15 Publication of judicial decisions Member States shall ensure that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part. Member States may provide for other additional publicity measures which are appropriate to the particular circumstances, including prominent advertising. CHAPTER III Sanctions by Member States Article 16 Sanctions by Member States Without prejudice to the civil and administrative measures, procedures and remedies laid down by this Directive, Member States may apply other appropriate sanctions in cases where intellectual property rights have been infringed. CHAPTER IV Codes of conduct and administrative cooperation Article 17 Codes of conduct Member States shall encourage: (a) the development by trade or professional associations or organisations of codes of conduct at Community level aimed at contributing towards the enforcement of the intellectual property rights, particularly by recommending the use on optical discs of a code enabling the identification of the origin of their manufacture; (b) the submission to the Commission of draft codes of conduct at national and Community level and of any evaluations of the application of these codes of conduct. Article 18 Assessment 1. Three years after the date laid down in Article 20(1), each Member State shall submit to the Commission a report on the implementation of this Directive. On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society. That report shall then be transmitted to the European Parliament, the Council and the European Economic and Social Committee. It shall be accompanied, if necessary and in the light of developments in the Community legal order, by proposals for amendments to this Directive. 2. Member States shall provide the Commission with all the aid and assistance it may need when drawing up the report referred to in the second subparagraph of paragraph 1. Article 19 Exchange of information and correspondents For the purpose of promoting cooperation, including the exchange of information, among Member States and between Member States and the Commission, each Member State shall designate one or more national correspondents for any question relating to the implementation of the measures provided for by this Directive. It shall communicate the details of the national correspondent(s) to the other Member States and to the Commission. CHAPTER V Final provisions Article 20 Implementation 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... (9). They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive. Article 21 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 22 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 29.4.2004. For the European Parliament The President P. COX For the Council The President M. McDOWELL (1) OJ C 32, 5.2.2004, p. 15. (2) Opinion of the European Parliament of 9 March 2004 (not yet published in the Official Journal) and Council Decision of 26 April 2004. (3) OJ L 336, 23.12.1994, p. 1. (4) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1). (5) OJ L 13, 19.1.2000, p. 12. (6) OJ L 178, 17.7.2000, p. 1. (7) OJ L 122, 17.5.1991, p. 42. Directive as amended by Directive 93/98/EEC (OJ L 290, 24.11.1993, p. 9). (8) OJ L 167, 22.6.2001, p. 10. (9) Twenty-four months after the date of adoption of this Directive.

Summary: Enforcement of intellectual property rights Enforcement of intellectual property rights SUMMARY OF: Directive 2004/48/EC — enforcement of intellectual property rights Corrigendum WHAT IS THE AIM OF THIS DIRECTIVE? This directive provides a minimum set of measures, procedures and remedies allowing effective civil enforcement of intellectual property rights (IPR) across the EU, ensuring standardised level of protection throughout the internal market. In 2017, the European Commission adopted a package of measures to further improve the application and enforcement of IPR and the fight against counterfeiting and piracy. In particular, it published a Guidance Communication clarifying the rules set out in this directive where there have been differing interpretations in EU countries. The measures follow an 10-point action plan for enforcing IPR in the EU set out by the Commission in 2014. KEY POINTS Objectives The directive’s main objective is to ensure that the same tools are available throughout the EU for creators and innovators to be able to exercise their intellectual property rights. However, in addition to tackling counterfeiting and piracy, it also helps to achieve other objectives which include: promoting innovation and business competitiveness — punishing counterfeiting and piracy effectively, can help ensure confidence in the single market; safeguarding employment in Europe — damage suffered by businesses as a result of counterfeiting and piracy is reflected in the number of jobs offered; ensuring consumer protection — consumers are deliberately cheated as to the quality they are entitled to expect from a product posing risks to both health (e.g. counterfeit medicines or cosmetics) and safety (e.g. counterfeit toys or electrical appliances) and do not in principle benefit from a guarantee, after-sales service or effective remedy in the event of damage; ensuring the maintenance of public order — counterfeiting and piracy infringe labour legislation (clandestine labour), tax legislation (loss of government revenue), health legislation and legislation on product safety. Scope The directive applies to any infringement of IPRs provided for by EU law and/or by the national law of the EU country concerned. This directive does not affect: the EU rules on the enforcement of rights concerning and related to copyright; EU rules governing the substantive law on intellectual property (that is, law defining rights and obligations in relation to intellectual property); EU countries’ international obligations and notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (known as the ‘TRIPS Agreement’); any national rules in EU countries relating to criminal procedures or penalties for infringing IPRs. General obligation EU countries should set up the measures, procedures and remedies needed to ensure the enforcement IPRs and take appropriate action against those responsible for counterfeiting and piracy. Those measures, procedures and remedies should be effective, proportionate and dissuasive, but avoid creating barriers to legitimate trade and offer safeguards against their abuse. Application for protection A request to apply intellectual property protection measures may be submitted by: the holders of IPRs, all other persons authorised to use those rights (e.g. licensees) and bodies representing holders of intellectual property rights (intellectual property collective rights-management bodies and professional defence bodies) in accordance with the applicable law. Right of information At the request of the claimant, a court may order information to be provided on the origin of the goods or services that are thought to infringe an IPR and on the networks for their distribution or supply, by the infringer or any other person, if that person: was found in possession of the infringing goods on a commercial scale; was found to be using the infringing services on a commercial scale; was found to be providing on a commercial scale services used in infringing activities; was indicated as being involved in the production, manufacture or distribution of the infringing goods or services. Rules on obtaining and preserving the evidence At the request of the applicant, a court may order the opposing party to present evidence which lies in its control, subject to the protection of confidential information. The court may also issue measures allowing relevant evidence to be preserved in respect of the alleged infringement. Provisional and precautionary measures At the request of the applicant, a court may issue an interlocutory injunction* intended to: prevent any impending infringement of an IPR; forbid, on a provisional basis, the continuation of the alleged infringements of an IPR; make the continuation of the alleged infringement subject to the lodging of guarantees intended to ensure that the right holder is compensated. In certain cases, the judicial authorities may authorise the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of his/her bank accounts and other assets. Measures resulting from a decision on the case At the request of the applicant, a court may order corrective measures allowing the recall or removal of the infringing goods from the market or their destruction. A court may also issue a permanent injunction preventing the infringement from continuing or award damages to the injured party. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 20 May 2004 and had to become law in the EU countries by 29 April 2006. BACKGROUND Enforcement of Intellectual Property Rights (European Commission). KEY TERMS Interlocutory injunction: also known as interim injunctions, these are temporary court orders requiring or preventing a party from doing certain acts pending the final ruling on the case. MAIN DOCUMENT Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, pp. 45-86). Text republished in corrigendum (OJ L 195, 2.6.2004, pp. 16–25) Successive amendments to Directive 2004/48/EC have been incorporated into the original document. This consolidated version is of documentary value only. RELATED DOCUMENTS Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee — Guidance on certain aspects of Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights (COM(2017) 708 final, 29.11.2017) last update 11.06.2018


EUR-Lex - 32003R0150 - EN Avis juridique important | 32003R0150 Council Regulation (EC) No 150/2003 of 21 January 2003 suspending import duties on certain weapons and military equipment Official Journal L 025 , 30/01/2003 P. 0001 - 0006 Council Regulation (EC) No 150/2003of 21 January 2003suspending import duties on certain weapons and military equipmentTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community and, in particular Article 26 thereof,Having regard to the proposal from the Commission(1),Whereas:(1) The Community is based upon a customs union, which requires the consistent application of the Common Customs Tariff on imports of products from third countries by all Member States unless specific Community measures provide otherwise.(2) It is in the interests of the Community as a whole that Member States are able to procure for their military forces the most technologically advanced and suitable weapons and military equipment. In view of the rapid technological developments in this industrial sector worldwide it is normal practice of the Member States authorities in charge of national defence to procure weapons and military materials from producers or other suppliers located in third countries. Given the security interest of the Member States it is compatible with the interests of the Community that certain of these weapons and equipment may be imported free of import duties.(3) In order to ensure consistent application of such duty suspension it is appropriate to establish a common list of weapons and military equipment eligible for the duty suspension. It is also appropriate in view of the specific nature of the products concerned that parts, components or subassemblies for incorporation in or fitting to goods included in the list or for the repair, refurbishment or maintenance of such goods as well as goods for use in training or testing of goods included in this list could be imported free of customs duties. Imports of military equipment, which are not covered by this Regulation, are subject to the appropriate duties in the Common Customs Tariff.(4) Given the different organisational structures of the competent authorities in the Member States it is necessary solely for customs-related purposes to define end uses for the imported materials in accordance with the provisions of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(2) and its implementing regulations (herein after called the "Customs Code"). In order to limit the administrative burden for the authorities concerned it is appropriate to set a time limit for the end use customs supervisions.(5) In order to take account of the protection of the military confidentiality of the Member States it is necessary to lay down specific administrative procedures for the granting of the benefit of the suspension of duties. A declaration by the competent authority of the Member State for whose forces the weapons or military equipment are destined, which could also be used as customs declaration as required by the Customs Code, would constitute an appropriate guarantee that these conditions are fulfilled. The declaration should be given in the form of a certificate. It is appropriate to specify the form, which such certificates must take and to allow also the use of means of data processing techniques for the declaration.(6) It is necessary to lay down rules for the Member States in order to provide information on the quantity, the value and the number of certificates issued and the procedures for the implementation of this Regulation,HAS ADOPTED THIS REGULATION:Article 1This Regulation lays down the conditions for the autonomous suspension of import duties on certain weapons and military equipment imported by or on behalf of the authorities in charge of the military defence of the Member States from third countries.Article 21. The duties of the Common Customs Tariff applicable to imports of the goods listed in Annex 1 shall be totally suspended when they are used by, or on behalf of the military forces of a Member State, individually or in cooperation with other States, for defending the territorial integrity of the Member State or in participating in international peace keeping or support operations or for other military purposes like the protection of nationals of the European Union from social or military unrest.2. Such duties shall also be totally suspended for:(a) parts, components or subassemblies imported for incorporation in or fitting to goods included in the list in Annex I and II or parts, components or subassemblies thereof, or for the repair, refurbishment or maintenance of such goods;(b) goods imported for training or testing of goods included in the list at Annex I and II.3. The imported goods as defined in Annex I and in paragraph 2 of this Article shall be subject to end use conditions laid down in Articles 21 and 82 of Regulation (EEC) No 2913/92 and its implementing legislation. Customs supervision of the end use shall end three years after the date of release for free circulation.4. The use of the goods listed in Annex I for training purposes or the temporary use of these goods in the customs territory of the Community by the military forces or other forces for civil purposes due to unforeseen or natural disasters shall not constitute a violation of the end use determined in paragraph 1.Article 31. The request for entry for free circulation of goods for which the benefit of a duty suspension under the provisions of Article 2 is claimed shall be accompanied by a certificate issued by the competent authority of the Member State for whose military forces the goods are destined. The certificate as set out in Annex III shall be submitted to the customs authorities of the importing Member State together with the goods to which it refers. It may replace the customs declaration required by Articles 59 to 76 of Regulation (EEC) No 2913/92.2. Notwithstanding paragraph 1, for reasons of military confidentiality, the certificate and the imported goods may be submitted to other authorities designated by the importing Member State for this purpose. In such cases the competent authority issuing the certificate shall send before 31 January and 31 July of each year a summary report to the customs authorities of its Member State on such imports. The report shall cover a period of 6 months immediately preceding the month on which the report has to be submitted. It shall contain the number and issuing date of the certificates, the date of importation and the total value and gross weight of the products imported with the certificates.3. For the issuing and the presentation of the certificate to the customs authorities or to other authorities in charge of customs clearance data processing technique may be used in accordance with Article 292(3) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92(3).4. This Article applies mutatis mutandis to imported goods listed in Annex II.Article 4Except in cases of Article 2(4) any diversion of goods listed in Annex 1 and Article 2(2) from the use specified in Article 2(1) within the period of customs supervision shall be notified by the competent authority issuing the certificate or using the goods to the customs authorities of its Member State in accordance with Article 21 and 87 of Regulation (EEC) No 2913/92.Article 51. Each Member State shall communicate to the Commission the names of the authorities, which are competent to issue the certificate referred to in Article 3(1) together with a specimen of the stamp used by the said authorities. Each Member State shall also forward to the Commission the name of the authority, which can release the imported goods in cases referred to in Article 3(2). The Commission shall forward this information to the customs authorities of the other Member States.2. Where the goods are entered for free circulation in a Member State other than that in which the certificate was issued, a copy of the certificate shall be forwarded by the customs authorities of the importing Member State to the customs administration of the Member State whose competent authority issued the certificate.Where goods have been released by other authorities in accordance with Article 3(2) in a Member State other than that in which the certificate was issued, a copy of the certificate shall be forwarded directly by these authorities to the authority issuing the certificate.3. The authority of each Member State authorised to issue the certificate referred to in Article 3(1) shall keep a copy of the certificates issued and the documentary evidence necessary to demonstrate the correct application of the suspension for a period of three years following the date of expiry of the customs supervision of the goods.Article 6The Commission shall inform Member States of any request lodged by a Member State in view of presenting a proposal to amend the lists in Annexes I and II.Article 71. Each Member State shall inform the Commission about the administrative implementation of this Regulation within six months after its entry into force.2. They shall also transmit to the Commission no later than three months after the end of each calendar year information on the total number of certificates issued together with the total value and gross weight of goods imported under the provisions of this Regulation.Article 8This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities.It shall apply as from 1 January 2003.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 21 January 2003.For the CouncilThe PresidentN. Christodoulakis(1) OJ C 265, 12.10.1988, p. 9.(2) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by Regulation (EC) No 2700/2000 of the European Parliament and the Council (OJ L 311, 12.12.2000, p. 17).(3) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Commission Regulation (EC) No 993/2001 (OJ L 141, 28.5.2001, p. 1).ANNEX ILIST OF WEAPONS AND MILITARY EQUIPMENT ON WHICH IMPORT DUTIES ARE SUSPENDED(1)28042825360136023603360436063701370237033705370738243926420249115608611662106211621763056307650673087311731473267610841384148415841884198421842484278472847985028516851885218525852685278528853185358536853985438544870187038704870587098710871187168801880288048805890189038906890790049005900690089013901490159020902290259027903090319302930393049306930794049406(1) CN codes applicable on 1 January 2003, adopted by Commission Regulation (EC) No 1832/2002 of 1 August 2002 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and the Common Customs Tariff (OJ L 290, 28.10.2002, p. 1).ANNEX IILIST OF WEAPONS AND MILITARY EQUIPMENT WITH A CONVENTIONAL RATE OF DUTY "FREE" FOR WHICH IMPORT PROCEDURES OF ARTICLE 3 CAN BE APPLIED(1)49018426842884298430847084718517852490189019902190269301(1) CN codes applicable on 1 January 2003, adopted by Commission Regulation (EC) No 1832/2002 of 1 August 2002 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and the Common Customs Tariff (OJ L 290, 28.10.2002, p. 1).ANNEX III>PIC FILE= "L_2003025EN.000602.TIF">

Summary: Suspension of import duties on certain weapons and military equipment Suspension of import duties on certain weapons and military equipment SUMMARY OF: Regulation (EC) No 150/2003 suspending import duties on certain weapons and military equipment WHAT IS THE AIM OF THE REGULATION? Its purpose is to suspend import duties on certain weapons and military equipment to allow the EU countries’ authorities in charge of defence to procure the best military material available in the world. It is only applicable to goods imported by or on behalf of the defence authorities in EU countries. KEY POINTS Suspension of duties The regulation suspends the common customs tariff duties applicable to weapons and military materials on condition the goods are used by (or on behalf of) the EU country’s armed forces, for example: in the territorial defence of EU countries, participation in international peace keeping, other missions such as the protection of EU citizens. Annex I of the regulation lays down the list of goods which are eligible for this exemption. Any material that is not listed in the regulation and in its annexes is subject to customs duties, even if it is imported by the armed forces of an EU country. Goods concerned The goods on which the duties are suspended are arms and ammunition, including parts and accessories, certain rare gases, explosives, detonators, certain photographic materials and certain chemical products. The regulation also applies the suspension of customs duties to imported parts, components and sub-assemblies that are to be incorporated into or fitted to the goods in the annexes or which are necessary for training or testing. Private companies Private companies established in the EU will only be able to import the goods duty-free provided that that they manufacture the relevant military equipment, and that they supply final products to the authorities in charge of defence in the EU countries. All other uses are liable for customs duties. PROCEDURES AND CONTROLS Certificate The request for entry for free circulation of these goods must be accompanied by a certificate issued by the competent authority of the EU country for whose armed forces the goods are intended. The model for this certificate is reproduced in Annex III to the regulation. It is to be submitted to the customs authorities of the importing EU country with the goods to which it refers. Military confidentiality To ensure military confidentiality, there is a specific administrative procedure for granting duty suspension: the authorities responsible for national defence may issue the certificate instead of the regular customs services. The authorities must be notified accordingly. Customs supervision The goods concerned are subject to end-use conditions laid down by the EU Customs Code, i.e. their use will be supervised. Customs supervision of the end-use finishes 3 years after the date of release for free circulation. For the purposes of customs supervision, the competent authority issuing the certificate or using the goods must notify the customs authorities of its country of any diversion of the goods from the use specified in the regulation. Exchanging information EU countries must communicate the names of those authorised to issue the certificate. The European Commission forwards this information to the customs authorities of the other EU countries. EU countries must inform the Commission about the implementation of the regulation, and send information each year to the Commission on the number of certificates issued, together with the total value and gross weight of goods imported under the regulation. FROM WHEN DOES THE REGULATION APPLY? It applies from 1 January 2003. BACKGROUND For more information, see: Taxation and customs: suspensions (European Commission). MAIN DOCUMENT Council Regulation (EC) No 150/2003 of 21 January 2003 suspending import duties on certain weapons and military equipment (OJ L 25, 30.1.2003, pp. 1-6) last update 10.11.2017