# EUR-Lex - 52011PC0285 - EN

*|*

# 52011PC0285

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning customs enforcement of intellectual property rights /* COM/2011/0285 final */**

			*

			*

EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

1.1.        Background

The Commission’s Communication on a
strategy for smart, sustainable growth, ‘Europe 2020’[1], underlined the importance of
innovation for growth and jobs and Intellectual Property Rights (IPR) are
fundamental to this key priority, ensuring full benefits from research,
innovation and creative activities. 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[2],
the Commission therefore recalled that customs authorities should be able to
provide greater protection for intellectual-property rights through revised
legislation.

Council Regulation (EC) No 1383/2003
provides for customs action against goods suspected of infringing certain
intellectual property rights and is an important element in the EU's strategy
to protect and enforce intellectual property rights. In
September 2008 the Council[3] invited the Commission and the
Member States to review this Regulation and suggest and evaluate the
improvements to the legal framework on action against products found to have
infringed such rights.

The Commission developed a new customs
action plan to combat IPR infringements for the years 2009-2012. The main
elements of the Action Plan[4],
prepared by the Commission and endorsed by the Council, cover legislation, operational
performance, cooperation with industry, international cooperation and
awareness-raising. The review of the Regulation was incorporated into the plan
and was carried out by the Commission, in close collaboration with the Member
States through a working group created under the Customs 2013 Programme, which was
composed by experts of the customs administrations of the Member States.

Certain instances of detentions by customs authorities
of shipments of medicines in transit through the EU, which occurred at the end
of 2008, gave rise to concerns among certain Members of the WTO, Members of the
European Parliament, NGOs and the civil society. It was claimed that such
measures could hamper legitimate trade in generic medicines, thus contradicting
the EU commitment to facilitating access to medicines in the developing world, and
eventually violating WTO rules. The incidents of detentions triggered WTO
disputes against the EU by India and Brazil, which together with the concerns
expressed during the relevant WTO consultations between India and Brazil and
the EU, have shown that the relevant EU legislation for intellectual property
enforcement by customs authorities could benefit from further clarification to
increase legal certainty.

1.2.        Consistency with other EU
policies

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[5].
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 [ May 2011].

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

2.1.        Public consultation

A public consultation was carried out to
ensure that all stakeholders were given ample opportunity to contribute to the
review of Regulation (EC) No 1383/2003. The response to the public consultation
included 89 contributions from a wide range of stakeholders, including
right-holders, providers of services related to international trade, such as
forwarders and carriers, lawyers, academic institutions, NGOs, public
authorities and citizens.

The main issues that attracted interest
from the respondents were the scope of the Regulation in relation to the
situations in which customs authorities can take action and the range of
intellectual property rights covered by the Regulation, the simplified
procedure in general and in relation to small consignments and the costs of
storage and destruction of goods.

2.2.        Impact Assessment

The impact assessment report identified and
assessed policy options concerning the customs measures and procedures related
to the border enforcement of intellectual property rights. The main areas
covered were the scope for strengthening IPR enforcement at the border,
addressing the administrative and economic burdens of enforcement on customs, right-holders
and other stakeholders, and the need to ensure effectiveness and consistency
with all relevant legal obligations.

The impact assessment report looked at
three different options, if relevant with a number of sub-options. The first
option provided for the so-called ‘baseline scenario’, where the Commission
would take no action and the status quo was maintained. The second
option provided for certain non-legislative measures, where the Commission
would propose training initiatives and the development of guidelines and
exchange of best practises. The third option was for the Commission to propose
amendments to the existing legal framework. Under this option different
sub-options could be available for each of the identified problems.

· Option 1 should be excluded if the Commission was to respond
adequately to the Council’s request to review the legislation and to the
concerns about the scope and implementation of the current legislation
expressed by stakeholders during the consultation process.

· Option 2 would only partially address the identified problems.
Guidelines and explanatory notes could help clarify applicable procedures or
how to apply general principles of law. However, these non-legislative measures
could not address some of the objectives of widening the scope of intellectual
property rights or make procedures compulsory throughout the Union.

· Option 3 would give the maximum legal certainty that IP rights not
covered by the present Regulation would be included, procedures would be
harmonised and procedural clarifications would be given. Under this option, two
sub-options were given. Sub-option 1 provided for the
extension of the possible types of infringements to rights already covered by
the current Regulation, for example, as regards goods involving any
infringement of trade mark rights, not just counterfeiting. Sub-option 2 included
sub-option 1 and extended the current scope of the
Regulation in terms of IPR covered.

The impact assessment concluded that the
best suitable solution would be to amend the Regulation to respond to all the
problems identified and to ensure a balanced outcome for all categories of
affected persons.

3.           LEGAL BASIS AND SUBSIDIARITY

The commercial aspects of intellectual
property are part of the framework of the common commercial policy. Article 207
of the Treaty on the Functioning of the European Union provides powers to adopt
measures for implementing the common commercial policy. Therefore the legal
basis for the proposal is Article 207 of the Treaty on the Functioning of the
European Union.

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.

4.           BUDGETARY IMPLICATION

The proposal will not have an impact on human resources and on the European Union budget and
is therefore not accompanied by the financial statement foreseen under Article
28 of the Financial Regulation (Council Regulation (EC, Euratom)
No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the
general budget of the European Communities).

5.           AMENDMENTS

The review identified
certain improvements to the legal framework that were considered necessary to
strengthen the provisions concerning enforcement of intellectual property
rights, whilst at the same time ensuring legal clarity
of the provisions themselves. It is therefore proposed to replace Council
Regulation (EC) No 1383/2003, with the attached draft new Regulation.

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.

The Regulation would maintain the ability
for customs to control for the purpose of enforcement of intellectual property
rights, in all situations where the goods were under their supervision and the
distinction between the procedural nature of the legislation and substantive
law on intellectual property would be emphasised.

The Regulation would also introduce
procedures enabling customs, under certain conditions, to have goods abandoned
for destruction without having to undergo formal and costly legal proceedings.
These would be differentiated according to the type of infringement. For
counterfeit and pirated goods, the agreement of the owner to destroy the goods
could be presumed if the destruction had not been explicitly opposed, whereas
for other situations, the owner of the goods would have to agree explicitly to
their destruction. In case no agreement is reached, the
right-holder would have to initiate legal proceedings to establish the
infringement, otherwise the goods would be released.

A specific procedure is also proposed for
small consignments of suspected counterfeit and pirated goods covered by an
application, which would allow for goods to be destroyed without the involvement
of the right- holder.

Additional provisions are proposed to
ensure the protection of the interests of legitimate traders from possible
abuse of the customs enforcement procedures and to integrate the principles of
the Charter of fundamental rights in the Regulation. To this end, the
Regulation would clarify the timelines for detaining suspected goods, the
conditions in which information about consignments would be passed on to right-holders
by customs, the conditions for applying the procedure allowing for destruction
of the goods under customs control for suspected infringements of intellectual
property rights other than for counterfeiting and piracy, and the right of
defence. In this way, the new regulation would become a more robust enforcement
tool thereby enhancing the legitimacy of customs action.The issue of costs of
storage and destruction of infringing goods has attracted attention from
different stakeholders. The Regulation would continue to provide that storage
and destruction costs directly incurred by customs be assumed by the right-holders
requesting customs action, though this would not preclude them from taking
legal action to recover such costs from the primary liable party. However, it
is proposed to introduce an important exception for small consignments, for
which storage and destruction costs would be assumed by customs.

2011/0137 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

concerning customs enforcement of
intellectual property rights

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 207 thereof,

Having regard to the proposal from the
European Commission [6],

Having regard the opinion of the European
Data Protection Supervisor,

After transmission of the draft legislative
act to the national Parliaments,

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)
The Council of the European Union requested, in
its Resolution of 25 September 2008 on a comprehensive European
anti-counterfeiting and anti-piracy plan[7],
that Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning
customs action against goods suspected of infringing certain intellectual
property rights and the measures to be taken against goods found to have
infringed such rights[8],
be reviewed.

(2)
The marketing of goods infringing intellectual
property rights does considerable damage to right-holders, law-abiding
manufacturers and traders. It is also deceiving consumers, and could in some
cases endanger their health and safety. Such goods should, in so far as is
possible, be kept off the market and measures should be adopted to deal with
this unlawful activity without impeding legitimate trade.

(3)
The review of Regulation (EC)
No 1383/2003 showed that certain improvements to the legal framework were
necessary to strengthen the enforcement of intellectual property rights, as
well as to ensure appropriate legal clarity, thereby taking into account
developments in the economic, commercial and legal areas.

(4)
The customs authorities should be able to control
goods, which are or should have been subject to customs supervision in the
customs territory of the Union, with a view to enforcing intellectual property
rights. Enforcing intellectual property rights at the border, wherever the
goods are, or should have been, under ‘customs
supervision’ as defined by Council Regulation (EEC) No 2913/92 establishing the
Community Customs Code[9],
makes good use of resources. Where goods are detained by customs at the border, one legal
proceeding is required, whereas several separate proceedings would be required
for the same level of enforcement for goods found on the market, which have
been disaggregated and delivered to retailers. An exception
should be made for goods released for free circulation under the end-use regime,
as such goods remain under customs supervision, even though they have been
released for free circulation. It is also appropriate not to apply the
Regulation to goods carried by passengers in their personal luggage as long as
these goods are for their own personal use and there are no indications that
commercial traffic is involved.

(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 same 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.

(6)
This Regulation contains procedural rules for
customs authorities. Accordingly, this Regulation does not introduce any new
criterion for ascertaining the existence of an infringement of the intellectual
property law applicable.

(7)
This Regulation should not affect the provisions
on the competence of courts, in particular, those of Council Regulation (EC) No
44/2001 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters[10].

(8)
Any person, whether or not the holder of an
intellectual property right, who is able to initiate legal proceedings in
his/her own name with respect to a possible infringement of that right, should
be entitled to submit an application for action by the customs authorities.

(9)
In order to ensure that intellectual property
rights are enforced throughout the Union, it is appropriate to provide that,
where a person entitled to submit an application for action seeks enforcement
of an intellectual property right covering the whole territory of the Union,
that person may request the customs authorities of a Member State to take a decision
requiring action by the customs authorities of that Member State and of any
other Member State where enforcement of the intellectual property right is sought.

(10)
In order to ensure the swift enforcement of
intellectual property rights, it should be provided that, where the customs
authorities suspect, on the basis of adequate evidence, that goods under their
supervision infringe intellectual property rights, those customs authorities
may suspend the release or detain the goods whether at their own initiative or
upon application, in order to enable the persons
entitled to submit an application for action of the customs authorities to
initiate proceedings for determining whether an intellectual property right has
been infringed.

(11)
Where goods suspected of infringing intellectual
property rights are not counterfeit or pirated goods, it may be difficult to
determine upon mere visual examination by customs authorities whether an
intellectual property right might be infringed. It is therefore appropriate to
provide that proceedings should be initiated, unless the parties concerned,
namely the holder of the goods and the right-holder, agree to abandon the goods
for destruction. It should be for the competent authorities dealing with such
proceedings to determine whether an intellectual property right has been
infringed and to take appropriate decisions concerning the infringements of
intellectual property rights concerned.

(12)
Regulation (EC) No 1383/2003 allowed
Member States to provide for a procedure allowing the destruction of certain
goods without there being any obligation to initiate proceedings to establish
whether an intellectual property right has been infringed. As recognised in the
European Parliament Resolution of 18 December 2008 on the impact of
counterfeiting on international trade[11],
this procedure has proved very successful in the Member States where it has
been available. Therefore, such procedure should be made compulsory for those
visible infringements that are easy to identify upon mere visual examination by
the customs authorities and should be applied at the right-holder’s request,
where the declarant or holder of the goods does not object to destruction.

(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.

(14)
The Commission, when preparing and drawing-up
delegated acts, should ensure a simultaneous, timely and appropriate
transmission of relevant documents to the European Parliament and Council.

(15)
For further legal clarity and in order to
protect the interests of legitimate traders from possible abuse of the border
enforcement provisions, it is appropriate to modify the timelines for detaining
goods suspected of infringing an intellectual property right, the conditions in
which information about consignments is to be passed on to right-holders by
customs authorities, the conditions for applying the procedure allowing for
destruction of the goods under customs control for suspected infringements of
intellectual property rights other than for
counterfeit and pirated goods and to introduce a provision allowing the holder
of the goods to express his/her views before the customs administration takes a
decision which would adversely affect him/her.

(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 parties. The period allowing for a right to be heard before an
adverse decision is taken should be three working days, 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.

(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 likelihood of
diversion of these goods onto the market of the Union.

(18)
In the interest of efficiency, the provisions of
Council Regulation (EC) No 515/97 of 13 March 1997 on mutual
assistance between the administrative authorities of the Member States and
cooperation between the latter and the Commission to ensure the correct
application of the law on customs or agricultural matters[12], should apply.

(19)
The liability of the customs authorities should
be governed by the legislation of the Member States, though the granting by the
customs authorities of an application for action should not entitle the holder
of the decision to compensation in the event that such goods are not detected
by a customs office and are released or no action is taken to detain them.

(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 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.

(21)
Customs enforcement of intellectual property law
will entail the exchange of data on decisions relating to applications for
action. Such processing of data covers also personal data which should be
carried out in accordance with Union law, as set out, in particular, in
Directive 95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of personal
data and on the free movement of such data[13] and Regulation
(EC) No 45/2001 of the European Parliament and of the Council of 18 December
2000 on the protection of individuals with regard to the processing of personal
data by Community institutions and bodies and on the free movement of such data[14].

(22)
In order to ensure uniform conditions for the
implementation of the provisions concerning the forms for the application for
action by the customs authorities and for requesting the extension of the
period during which customs authorities are to take action, implementing powers
should be conferred on the Commission, namely to establish standard forms.

(23)
Those powers should be exercised in accordance
with Regulation (EU) No 182/2011[15]
of the European Parliament and of the Council of 16 February 2011 laying down
the rules and general principles concerning mechanisms for control by the
Member States of the Commission's exercise of implementing powers. Although the
subject of the provisions of this Regulation to be implemented falls within the
scope of the common commercial policy, given the nature
and impacts of the implementing acts, the advisory procedure should be used for their adoption.

(24)
Regulation (EC) No 1383/2003 should be
repealed,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

Subject
matter and scope

1.           This Regulation sets out
the conditions and procedures for action by the customs authorities where goods
suspected of infringing an intellectual property right are, or should have
been, subject to customs supervision within the customs territory of the Union.

2.           This Regulation shall not
apply to goods that have been released for free circulation under the end-use
regime within the meaning of Article 82 of Council Regulation (EEC)
No 2913/92.

3.           This Regulation shall not
affect in any way the laws of the Member States and of the Union on
intellectual property.

4.           This
Regulation shall not apply to goods of a non-commercial
nature contained in travellers’ personal luggage.

Article 2

Definitions

For the
purposes of this Regulation:

(1)
‘intellectual property rights’ means:

(a)
a trade mark;

(b)
 a design;

(c)
 a copyright or any related right as provided
for by the legislation of a Member State;

(d)
 a geographical indication;

(e)
 a patent as provided for by the legislation of a
Member State;

(f)
a supplementary protection certificate for
medicinal products as provided for in Regulation (EC)
No 469/2009 of
the European Parliament and of the Council[16];

(g)
 a supplementary protection certificate for
plant protection products as provided for in Regulation (EC) No 1610/96
of the European Parliament and of the Council[17];

(h)
 a Community plant variety right as provided for
in Council Regulation (EC) No 2100/94[18];

(i)
a plant variety right as provided for by the legislation
of a Member State;

(j)
 a topography of semiconductor product as
provided for by the legislation of a Member State;

(k)
 a utility model as provided for by the legislation
of a Member State;

(l)
 a trade name in so far
as it is protected as an exclusive intellectual property right by legislation of a Member State;

(m)
any other right that is established as an exclusive intellectual property right by
Union legislation;

(2)
‘trade mark’ means:

(a)
a Community trade mark as
provided for in Council Regulation (EC) No 207/2009[19];

(b)
a trade mark registered in a Member State, or, in
the case of Belgium, the Netherlands or Luxembourg, at the Benelux Office for
Intellectual Property;

(c)
a trade mark registered under international
arrangements which have effect in a Member State;

(d)
a trade mark registered under international
arrangements which have effect in the Union;

(3)
‘design’ means:

(a)
a Community design as provided for in Regulation (EC)
No 6/2002[20];

(b)
a design registered in a
Member State;

(c)
a design registered under international
arrangements which have effect in a Member State;

(d)
a design registered under international
arrangements which have effect in the Union;

(4)
‘geographical indication’ means:

(a)
a geographical indication or designation of
origin protected for agricultural products and foodstuff as provided for in
Council Regulation (EC) No 510/2006[21];

(b)
a designation of origin or geographical
indication for wine as provided for in Council
Regulation (EC) No 1234/2007[22];

(c)
a geographical designation for aromatised wine
as provided for in Council Regulation (EEC) No 1601/1991[23];

(d)
a geographical indication of spirit
drinks as provided for in Regulation (EC) No 110/2008 of the European Parliament and of the
Council[24];

(e)
a
geographical indication for products other than wines, spirits, agricultural
products or foodstuff in so far as it is established as an exclusive intellectual
property right by legislation of a Member State or the Union;

(f)
a geographical
indication as provided for in Agreements
between the Union and third countries and as such listed in those Agreements;

(5)
‘counterfeit goods’ means:

(a)
 goods which are subject of an action infringing
a trade mark 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;

(b)
 goods which are subject of an action infringing
a geographical indication and bear or are described by a name or term protected
in respect of that geographical indication;

(6)
‘pirated goods’ means goods which are subject of
an action infringing a copyright or related right or a design 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;

(7)
‘goods suspected of infringing an intellectual
property right’ means goods with regard to which there is adequate evidence to
satisfy customs authorities that, in the Member State where these goods are
found, are prima facie:

(a)
 goods which are subject of an action infringing
an intellectual property right under the law of the Union or of that Member
State;

(b)
 devices, products or components which circumvent
any technology, device or component that, in the normal course of its
operation, prevents or restricts acts in respect of works which are not
authorised by the right-holder of any copyright or right related to copyright
and which infringe an intellectual property right under the law of that Member
state;

(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 State;

(8)
‘application’ means a request made to the
customs authorities to take action where goods are suspected of infringing an
intellectual property right;

(9)
‘national application’ means an application requesting
the customs authorities of a Member State to take action in that Member State;

(10)
‘Union application’ means an application submitted
in one Member State and requesting the customs authorities of that Member State
and of one or more other Member States to take action in their respective Member
States;

(11)
‘applicant’ means the person who submits an
application in his/her own name;

(12)
‘holder of the goods’ means the person who is
the owner of the goods or who has a similar right of disposal over them or who
has physical control over them;

(13)
‘declarant’ means the declarant as referred to
in Article 4(18) of Regulation (EEC) No 2913/92;

(14)
‘destruction’ means the physical destruction,
recycling or disposal of goods outside commercial channels, in such a way as to
preclude injury to the holder of the decision granting the application;

(15)
‘customs supervision’ means the supervision by
customs authorities as referred to in Article 4(13) of Regulation (EEC)
No 2913/92;

(16)
‘customs territory of the Union’ means the
customs territory of the Community as referred to in Article 3 of
Regulation (EEC) No 2913/92;

(17)
‘release of the goods’ means the act whereby the
customs authorities make goods available for the purposes specified for the
customs procedure under which they are placed.

Article 3

Applicable
law

Without prejudice to Article 8 of
Regulation (EC) No 864/2007[25],
the law of the Member State where the goods are found in one of the situations
referred to in Article 1(1) shall apply for the purpose of determining whether
the use of those goods gives rise to suspicion of infringement of an
intellectual property right or has infringed an intellectual property right.

CHAPTER II

APPLICATIONS FOR ACTION BY THE CUSTOMS
AUTHORITIES

Section 1

Submission of applications for action

Article 4

Persons
entitled to submit an application

1.           The persons entitled to
submit a national or a Union application shall be any of the following:

(a)     holders of intellectual property rights;

(b)     intellectual property collective
rights management bodies which are regularly recognised as having a right to
represent holders of copyrights or related rights;

(c)     professional defence bodies which are
regularly recognised as having a right to represent holders of intellectual
property rights;

(d)     groups in the meaning of Article 5(1)
of Regulation (EC) No 510/2006, groups of producers in the meaning of
Article 118(e) of Regulation (EC) No 1234/2007 or similar groups of
producers foreseen in the legislation of the Union governing geographical
indications representing producers of a geographical indication or
representatives of such groups; operators entitled to use a geographical
indication; as well as inspection bodies competent for such a geographical indication;

2.           In addition to the persons
set out in paragraph 1, any of the following shall be entitled to submit a
national application:

(a)     all other persons authorised to use
intellectual property rights;

(b)     groups of producers foreseen in the
legislation of the Member States governing geographical indications
representing producers of a geographical indication or representatives of such
groups, operators entitled to use a geographical
indication, as well as inspection bodies competent for
such a geographical indication;

3.           In addition to the persons
set out in paragraph 1, the holder of an exclusive
license covering the customs territory of the Union shall be entitled to submit a Union application.

4.           All persons entitled to
submit an application under paragraphs 1, 2 and 3 must be able to initiate
proceedings for infringement of intellectual property rights in the Member State
where the goods are found.

Article 5

Intellectual
property rights covered by Union applications

A Union application may be submitted with
respect to any intellectual property right applying throughout the Union.

Article 6

Submission
of applications

1.           The persons referred to in
Article 4 may request action by the customs authorities where the use of goods
is suspected of infringing an intellectual property right by submitting an
application to the competent customs department. The application shall be made
out on the form referred to in paragraph 3.

2.           Each Member State shall
designate the customs department competent to receive and process applications.
The Member State shall inform the Commission accordingly and the Commission shall make public the list of competent
customs departments designated by the Member States.

3.           The Commission shall
establish an application form by means of implementing acts. Those implementing
acts shall be adopted in accordance with the advisory procedure referred to in
Article 29(2).

The form shall, in particular, require the
following information to be provided by the applicant:

(a)
details of the applicant;

(b)
status of the applicant within the meaning of
Article 4;

(c)
supporting documents to be provided to satisfy
the customs department that the applicant is a person entitled to submit the
application;

(d)
the empowerment of natural or legal persons
representing the applicant, in accordance with the legislation of the Member
State in which the application is filed;

(e)
the intellectual property right or rights to be
enforced;

(f)
in the case of a Union application, the Member
State or Member States in which customs action is requested;

(g)
specific and technical data on the authentic
goods, including images where appropriate;

(h)
the information, to be attached to the form,
needed to enable the customs authorities to readily identify the goods in
question;

(i)
any information relevant to the customs
authorities' analysis and assessment of the risk of infringement of the
intellectual property right(s) concerned;

(j)
name(s) and address(es) of the representative(s)
of the applicant in charge of legal and technical matters;

(k)
undertaking by the applicant to notify the
competent customs department of any of the situations laid down in Article 14;

(l)
undertaking by the applicant to forward and
update any information relevant to the customs authorities' analysis and assessment
of the risk of infringement of the intellectual property right(s) concerned;

(m)
undertaking by the applicant to assume liability
under the conditions laid down in Article 26;

(n)
undertaking by the applicant to bear the costs referred
to in Article 27 under the conditions laid down in that Article;

(o)
undertaking by the applicant to agree that the
data provided by him/her will be processed by the Commission;

4.           Where computerised systems
are available for the purpose of receiving and processing applications,
applications shall be submitted using electronic
data-processing techniques.

5.           Where an application is submitted
after notification by the customs authorities of the suspension of the release
or detention of the goods in accordance with Article 17(4), that application shall
comply with the following additional requirements:

(a)     it shall be submitted to the competent
customs department within four working days of the notification of the
suspension of the release or detention of the goods;

(b)     it shall be a national application ;

(c)     it shall
contain the information required in paragraph 3. However, the applicant shall be
allowed to ommit the particulars mentioned in paragraph 3, letters (g) to (i).

Section 2

Decisions on applications for action

Article 7

Processing
of applications

1.           Where, on receipt of an application, the competent
customs department considers that it does not contain all the information required by Article 6(3), the
competent customs department shall request the
applicant to supply the missing information within 10
working days of dispatch of the notification.

In such cases, the time limit referred to in
Article 8 first subparagraph shall be suspended until the relevant information
is received.

2.           Where
the applicant does not provide the missing information within the period
referred to in paragraph 1, the competent customs department shall reject the application.

3.           The applicant shall not be
charged a fee to cover the administrative costs resulting from the processing
of the application.

Article 8

Notification
of decisions granting or rejecting applications for action

The competent customs department shall notify the
applicant of its decision granting or rejecting the application within 30
working days of the receipt of the application.

However, where the applicant has been
previously notified of the suspension of the release or detention of the goods
by the customs authorities, the competent customs department shall notify the
applicant of its decision granting or rejecting the application within one
working day of the receipt of the application.

Article 9

Decisions
concerning applications for action

1.           Decisions granting a
national application, decisions revoking such decisions or amending them, and
decisions extending the period during which customs authorities are to take
action shall take effect in the Member State in which the national application was
filed from the date of their adoption.

2.           Decisions granting a Union
application, decisions revoking such decisions or amending them and decisions
extending the period during which customs authorities are to take action shall take effect as follows:

(a)
in the Member State in which the application was
filed, from the date of adoption ;

(b)
in all other Member States where action by the
customs authorities is requested, from the date on which the customs
authorities are notified in accordance with Article 13(2) and provided that the holder of the decision has fulfilled his obligations under
Article 27(3).

Article 10

Period
during which the customs authorities are to take action

1.           When granting an
application, the competent customs department shall specify the period during
which the customs authorities are to take action.

That period shall begin from the date of
adoption of the decision granting the application and shall not exceed one
year.

2.           Where an application
submitted after notification by the customs authorities of the suspension of
the release or detention of the goods in accordance with Article 17(4) does not
contain the particulars referred to in Article 6(3) (g) to (i), it shall be
granted only for the suspension of the release or detention of those goods.

3.           Where an intellectual
property right ceases to have effect or where the applicant ceases for other
reasons to be the person entitled to submit an application, no action shall be
taken by the customs authorities. The decision granting the application shall
be revoked or amended accordingly by the customs autohorities that granted the
decision.

Article 11

Extension
of the period during which the customs authorities are to take action

1.           On expiry of the period
during which the customs authorities are to take action, and subject to the
prior discharge by the holder of the decision of any debt owed to the customs
authorities under this Regulation, the customs department which took the
initial decision may, at the request of the holder of the decision granting the
application, extend that period.

2.           Where the request for
extension of the period during which the customs authorities are to take action
is made less than 30 working days before the expiry of that decision, the
competent customs department may refuse the extension.

3.           The request for extension
of the period during which the customs authorities are to take action shall
indicate any change in the information provided under Article 6(3).

4.           The competent customs
department shall notify its decision on the extension to the holder of the
decision granting the application within 30 working days of the receipt of that
request.

5.           The extended period during
which the customs authorities are to take action shall run from the date of
adoption of the decision granting the extension and shall not exceed one year.

Where an intellectual property right ceases to
have effect or where the applicant ceases for other reasons to be the person
entitled to submit an application, no action shall be taken by the customs authorities.
The decision granting the extension shall be revoked or amended accordingly by
the customs authorities that granted the decision.

6.           The holder of the decision
shall not be charged a fee to cover the administrative costs resulting from the
processing of the request for extension.

7.           The Commission shall
establish an extension request form by means of implementing acts. Those
implementing acts shall be adopted in accordance with the advisory procedure
referred to in Article 29(2).

Article 12

Amending
the decision with regard to intellectual property rights

The competent
customs department that adopted the decision granting the application may, at
the request of the holder of that decision, modify the list of intellectual
property rights in that decision.

In the case of
a decision granting a Union application, any modification consisting in adding
intellectual property rights shall be limited to those intellectual property
rights covered by Article 5.

Article 13

Notification
obligations of the competent customs department

1.           The competent customs
department to which a national application has been submitted shall forward the
following decisions to the customs offices of its Member State, immediately
after their adoption:

(a)
its decisions granting a national application;

(b)
its decisions revoking decisions granting a national
application;

(c)
its decisions amending decisions granting a national
application;

(d)
its decisions extending the period during which
the customs authorities are to take action.

2.           The competent customs
department to which a Union application has been submitted shall forward the
following decisions to the competent customs department of the Member State or
Member States indicated in the Union application:

(a)
decisions granting a Union application;

(b)
decisions revoking decisions granting a Union
application;

(c)
decisions amending decisions granting a Union
application;

(d)
decisions extending or refusing to extend the
period during which the customs authorities are to take action;

(e)
decisions suspending the actions of the customs
authorities under Article 15(2).

The competent customs department of the Member
State(s) indicated in the Union application shall thereafter immediately
forward those decisions to their customs offices.

3.           Once the central database of the Commission referred to in Article 31(3)
is in place, all exchanges of data on decisions concerning applications
for action, accompanying documents and notifications between the customs
authorities of the Member States shall be made via that database.

Article 14

Notification
obligations of the holder of the decision granting the application

The holder of
the decision granting the application shall notify the competent customs
department that adopted that decision of any of the following:

(a)          an intellectual property right
covered by his/her application ceases to have effect;

(b)          the holder of the decision ceases
for other reasons to be the person entitled to submit the application;

(c)          modifications to the information required
by Article 6(3).

Article 15

Failure
of the holder of the decision granting the application to fulfil his/her
obligations

1.           Where the holder of the
decision granting the application uses the information provided by the customs
authorities for purposes other than those provided for in Article 19, the
competent customs department may:

(a)     suspend the decision granting the
application in the Member State where the information was provided or used
until the expiry of the period during which the customs authorities are to take
action ;

(b)     refuse to extend the period during
which the customs authorities are to take action.

2.           The competent customs
department may decide to suspend the actions of the customs authorities until
the expiry of the period during which those authorities are to take action,
where the holder of the decision:

(a)     does not fulfil his/her notification
obligations under Article 14;

(b)     does not comply with the requirements
of Article 18(2) on returning samples;

(c)     does not fulfil his/her obligations
under Article 27(1) and (3) with respect to costs and translation;

(d)     does not initiate proceedings as
provided for in Articles 20(1), 23(4) or 24(9).

In the case of a Union application, the
decision to suspend the actions of the customs authorities shall have effect
only in the Member State where such decision is taken.

CHAPTER III

PROVISIONS GOVERNING ACTION BY THE
CUSTOMS AUTHORITIES

Section 1

Suspension of the release or detention of goods
suspected of infringing an intellectual property right

Article 16

Suspension
of the release or detention of the goods following the grant of an application

1.           Where the customs
authorities of a Member State identify, in one of the situations referred to in
Article 1(1), goods suspected of infringing an intellectual property right covered
by a decision granting an application for action, they shall take a decision to
suspend the release of the goods or to detain them.

2.           Before adopting the
decision of suspension of release or detention of the goods, the customs
authorities may ask the holder of the decision granting the application to
provide them with any relevant information. The customs authorities may also
provide the holder of the decision with information about the actual or
supposed number of items, their nature and images of those items as
appropriate.

3.           Before adopting the
decision of suspension of release or detention of the goods, the customs
authorities shall, communicate their intention to the declarant or, in cases where goods are to be detained, 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 dispatch of that communication.

4.           The customs authorities
shall notify the holder of the decision granting the application and the
declarant or holder of the goods of their decision to suspend the release of
the goods or to detain them within one working day of
the adoption of their decision.

The notification to the declarant or holder of
the goods shall include information on the legal consequences provided by
Article 20 with respect to other goods than counterfeit and pirated goods and by
Article 23 with respect to counterfeit and pirated goods.

5.           The customs authorities shall inform the holder of the decision
granting the application and the declarant or holder of the goods of the actual
or estimated quantity, the actual or supposed nature of the goods, including
images of those items as appropriate, whose release has been suspended or which
have been detained.

6.           Where several persons are
considered to be holder of the goods, the customs authorities shall not be
obliged to inform more than one person.

Article 17

Suspension
of the release or detention of the goods without the grant of an application

1.           Where the customs
authorities identify, in the course of action in one of the situations referred
to in Article 1(1), goods suspected of infringing an intellectual property
right, they may suspend the release of those goods or detain them before having
been notified of a decision granting an application with respect to those
goods.

2.           Before adopting the
decision of suspension of release or detention of the goods, the customs
authorities may, without disclosing any information other than the actual or
supposed number of items, their nature and images of those items as
appropriate, request any person entitled to submit an application concerning
the alleged infringement of intellectual property rights to provide them with
any relevant information.

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 dispatch of that communication.

4.           The customs authorities
shall notify the suspension of the release or the
detention of the goods to any person entitled to submit
an application concerning the alleged infringement of intellectual property
rights within one working day of the suspension of the
release or of the detention of the goods.

5.           The customs authorities
shall grant the release of the goods or put an end to their detention
immediately after completion of all customs formalities in the following cases:

(a)     where they have not identified any
person entitled to submit an application concerning the alleged infringement of
intellectual property rights within one working day from the suspension of the release or the detention of the goods;

(b)     where they have not received or have rejected
an application in accordance with Article 6(5).

The customs authorities shall notify the
declarant or holder of the goods of their decision to suspend the release of
the goods or to detain them within one working day of
the adoption of their decision.

6.           This Article shall not
apply to perishable goods.

Article 18

Inspection and sampling of goods whose release has been suspended or
which have been detained

1.           The customs authorities
shall give the holder of the decision granting the application and the
declarant or holder of the goods the opportunity to inspect the goods whose
release has been suspended or which have been detained.

2.           The customs authorities may
take samples and may provide samples to the holder of the decision granting the
application, at his/her request, strictly for the purposes of analysis and to
facilitate the subsequent procedure in relation to counterfeit and pirated
goods. Any analysis of those samples shall be carried out under the sole
responsibility of the holder of the decision granting the application.

Where circumstances allow, the samples shall be
returned on completion of the technical analysis and before the goods are
released or their detention is ended.

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.

4.           The conditions of storage
of the goods during the period of suspension of release or detention, including
provisions regarding the costs, shall be determined by each Member State.

Article 19

Permitted
use of certain information by the holder of the decision granting the
application

Where the holder
of the decision granting the application has received the information referred
to in Article 18(3), the holder may only use that information for the following
purposes:

(a)          to initiate proceedings to
determine whether an intellectual property right has been infringed;

(b)          to seek compensation from the
infringer or other persons where goods are destroyed in accordance with
Articles 20(3) or 23(3).

Section 2

Initiation of proceedings and anticipated release of
goods

Article 20

Initiation
of proceedings

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 dispatch of the decision to suspend
the release of the goods or to detain them.

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 dispatch of the decision to suspend the release of the goods or to detain
them.

2.           The customs authorities
shall grant the release of the goods or put an end to their detention immediately
after completion of all customs formalities where they have not been informed
by the holder of the decision granting the application, within the period
referred to in paragraph 1, of any of the following:

(a)     the initiation of proceedings to
determine whether an intellectual property right has been infringed;

(b)     a written agreement between the holder
of the decision granting the application and the holder of the goods to abandon
the goods for destruction.

3.           In the case of an
agreement to abandon the goods for destruction referred to in paragraph 2(b),
the destruction shall be carried out under customs control at the expense and under
the responsibility of the holder of the decision granting the application, unless
otherwise specified in the legislation of the Member State where the goods are
destroyed.

4.           The customs authorities
may extend the period referred to in the first subparagraph of paragraph 1 by a
maximum of 10 working days upon request by the holder of the decision granting
the application in appropriate cases.

In the case of perishable goods, the period
referred to in the second subparagraph of paragraph 1 shall not be extended.

Article 21

Anticipated
release of goods

1.           Where the customs
authorities have been notified of the initiation of proceedings to determine
whether a design, patent, utility model or plant variety right has been infringed
and the period provided for in Article 20 has expired, the declarant or holder
of the goods may request the customs authorities to release the goods or put an
end to their detention.

The customs authorities shall release the goods
or put an end to their detention only where all the following conditions are fulfilled:

(a)     the declarant or holder of the goods
has provided a security;

(b)     the authority competent for
determining whether an intellectual property right has been infringed has not
authorised precautionary measures;

(c)     all customs formalities have been
completed.

2.           The security referred to
in paragraph 1(a) shall be provided by the declarant or holder of the goods within 10 working days following the date on which the customs
authorities receive the request referred to in
paragraph 1.

3.           The
customs authorities shall set the security at an amount sufficiently high to
protect the interests of the holder of the decision granting the application.

4.           The provision of the
security shall not affect the other legal remedies available to the holder of
the decision granting the application.

Article 22

Prohibited
customs-approved treatment and use of goods abandoned for destruction

1.           Goods abandoned for
destruction under Articles 20, 23 or 24 shall not be:

(a)     released for free circulation;

(b)     brought out of the customs territory of
the Union;

(c)     exported;

(d)     re-exported;

(e)     placed under a suspensive procedure;

(f)      placed in a free zone or free
warehouse.

2.           The customs authorities
may allow the goods referred to in paragraph 1 to be moved
under customs supervision between
different places within the customs territory of the Union with a view to their destruction under customs control.

Section 3

Counterfeit and pirated goods

Article 23

Destruction
and initiation of proceedings

1.           Goods suspected of being
counterfeit goods or pirated goods may be destroyed under customs control,
without there being any need to determine whether an intellectual property
right has been infringed under the law of the Member State where the goods are
found, where all of the following conditions are fulfilled:

(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 dispatch of the decision to
suspend the release of the goods or to detain them;

(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 dispatch of the decision to suspend the release of the goods or to
detain them.

2.           Where the declarant or
holder of the goods has not confirmed his/her agreement to destruction within
the periods set out in paragraph 1(b) nor notified his/her opposition to
destruction to the customs authorities that adopted the decision to suspend the
release of the goods or to detain them, the customs authorities may deem that
the declarant or holder of the goods has agreed to their destruction.

The customs authorities shall inform the holder
of the decision granting the application accordingly.

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.

3.           The destruction shall be
carried out under customs control, at the expense and under the responsibility
of the holder of the decision granting the application, unless otherwise
specified in the legislation of the Member State where the goods are destroyed.
Samples may be taken prior to destruction.

4.           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 dispatch of the decision to suspend the release of the goods
or to detain them.

The customs authorities may extend the periods
referred to in the first subparagraph by a maximum of 10 working days upon
request by the holder of the decision granting the application in appropriate
cases.

In the case of perishable goods those periods
shall not be extended.

5.           The customs authorities
shall grant the release of the goods or put an end to their detention, as
appropriate, immediately after completion of all customs formalities, where
they have not received information from the holder of the decision granting the
application on any of the following:

(a)
his/her agreement to the destruction within the
periods referred to in paragraph 1(a);

(b)
the initiation of proceedings to determine
whether an intellectual property right has been infringed within the period
referred to in paragraph 4.

Article 24

Specific
procedure for the destruction of goods in small consignments

1.           This Article applies to
goods where all of the following conditions are fulfilled:

(a)
goods suspected of being counterfeit or pirated
goods;

(b)
goods that are not perishable goods;

(c)
goods covered by a decision granting an
application;

(d)
goods transported in small consignments.

2.           Article 16 (3), (4) and (5)
and Article 18(2) shall not apply.

3.           When notifying, within one working day after its adoption, the
decision to suspend the release of the goods or to detain them, the customs
authorities shall inform the declarant or holder of the goods of the following:

(a)     the customs authorities' intention to
destroy the goods,

(b)     the rights of the declarant or holder
of the goods under paragraphs 4 and 5.

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
dispatch of the decision to suspend the release of the goods or to detain them.

5.           The
goods concerned may be destroyed where, within 20 working days of dispatch 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.

6.           Where the declarant or
holder of the goods has not confirmed his/her agreement to destruction within
the period referred to in paragraph 5, nor notified his/her opposition to
destruction to the customs office that adopted the decision to suspend the
release of the goods or to detain them, the customs authorities may deem that
the declarant or holder of the goods has agreed to their destruction.

7.           The destruction shall be
carried out under customs control and at the expense of the customs
authorities.

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 where appropriate.

9.           The customs authorities
shall grant the release of the goods or put an end to their detention, as
appropriate, immediately after completion of all customs formalities where they
have not received information from the holder of the decision granting the
application on the initiation of proceedings to determine whether an
intellectual property right has been infringed within 10 working days of dispatch
of the information referred to in paragraph 8.

10.         The Commission shall be
empowered to adopt delegated acts in accordance with Article 30 concerning the
thresholds that define small consignments for the purpose of this Article.

CHAPTER IV

LIABILITY, COSTS AND PENALTIES

Article 25

Liability
of the customs authorities

Without
prejudice to the applicable legislation of the Member States, the decision
granting an application shall not entitle the holder of that decision to
compensation in the event that goods suspected of infringing an intellectual
property right are not detected by a customs office and are released, or no
action is taken to detain them.

Article 26

Liability
of the holder of the decision granting the application

Where a
procedure duly initiated pursuant to this Regulation is discontinued owing to
an act or omission on the part of the holder of the decision granting the
application or where the goods in question are subsequently found not to
infringe an intellectual property right, the holder of the decision granting
the application shall be liable towards the persons involved in a situation
referred to in Article 1(1) in accordance with the legislation of the Member
State where the goods were found.

Article 27

Costs

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.

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 in
accordance with the legislation of the Member State where the goods were found.

3.           The holder of a decision granting
a Union application shall provide and pay for any translation required by the
customs authorities which are to take action concerning the goods suspected of
infringing an intellectual property right.

Article 28

Administrative
sanctions

The Member States shall lay down the rules
on administrative sanctions applicable to infringements of the provisions of
this Regulation and shall take all measures necessary to ensure that they are
implemented. The administrative sanctions provided for must be effective,
proportionate and dissuasive.

The Member States shall notify those
provisions to the Commission within six months from the date of entry into
force of this Regulation and shall notify it without delay of any subsequent
amendment affecting them.

CHAPTER V

COMMITTEE, DELEGATION AND FINAL
PROVISIONS

Article 29

Committee
procedure

1.           The Commission shall be
assisted by the Customs Code Committee established by Articles 247a and 248a of
Council Regulation (EC) No 2913/92. That committee shall be a committee within
the meaning of Regulation (EU) No 182/2011.

2.           Where reference is made to
this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

Article 30

Exercise
of the delegation

1.           The power to adopt
delegated acts is conferred on the Commission subject to the conditions laid
down in this Article.

2.           The delegation of power
referred to in Article 24(10) shall be conferred for an indeterminate period of
time from the date of entry into force of this Regulation.

3.           The delegation of powers
referred to in Article 24(10) may be revoked at any time by the European
Parliament or by the Council. A decision of revocation shall put an end to the
delegation of the power specified in that decision. It shall take effect the day
following the publication of the decision in the Official Journal of the
European Union or at a later date specified therein. It shall not affect
the validity of any delegated acts already in force.

4.           As soon as it adopts a
delegated act, the Commission shall notify it simultaneously to the European
Parliament and to the Council.

5.           A delegated act adopted
pursuant to Article 24(10) shall enter into force only if no objection has been
expressed either by the European Parliament or the Council within a period of 2
months of notification of that act to the European Parliament and the Council
or if, before the expiry of that period the European Parliament and the Council
have both informed the Commission that they will not object. That period shall
be extended by 2 months on the initiative of the European Parliament or the
Council.

Article 31

Exchange
of data on decisions relating to application for action between the Member
States and the Commission

1.           The
competent customs departments shall notify the Commission of the following:

(a)     applications for action, including any
photograph(s), image(s), brochure(s);

(b)     decisions granting applications;

(c)     any decisions extending the period
during which the customs authorities are to take action or decisions revoking
the decision granting the application or amending it;

(d)     any suspension of a decision granting
the application.

2.           Without prejudice to the
provisions of Article 24(g) of Council Regulation (EC) No 515/97, where
the release of the goods is suspended or the goods are detained, the customs authorities shall transmit to the Commission any relevant
information, including details on the goods, intellectual property right,
procedures and transport.

3.           All information referred
to in paragraphs 1 and 2 shall be stored in a central
database of the Commission.

4.           The Commission shall make
the relevant information referred to in paragraphs 1 and 2 available to
the customs authorities of the Member States in an electronic form.

Article 32

Data
protection provisions

1.           The processing of personal
data in the central database of the Commission shall be carried out in
accordance with Regulation (EC) No 45/2001[26] and
under the supervision of the European Data Protection Supervisor.

2.           Processing of personal
data by the competent authorities in the Member States shall be carried out in
accordance with Directive 95/46/EC[27] and under the
supervision of the public independent authority of the Member State referred to
in Article 28 of this Directive.

Article 33

Periods,
dates and time limits

The rules
applicable to periods, dates and time limits set out in Regulation (EEC, Euratom)
No 1182/71 of the Council[28] shall apply.

Article 34

Mutual
administrative assistance

The provisions
of Regulation (EC) No 515/97 shall apply.

Article 35

Repeal

Regulation (EC)
No 1383/2003 is repealed with effect from XX-XX-20XX.

References to
the repealed Regulation shall be construed as references to this Regulation.

Article 36

Transitional provisions

Applications
for action granted in accordance with Council Regulation (EC) No 1383/2003
shall remain valid for the period specified in the
decision granting the application during which the customs authorities are to
take action and shall not be extended.

Article 37

Entry
into force and application

This Regulation
shall enter into force on the twentieth day following that of its publication
in the Official Journal of the European Union.

However, Article
24(1) to (9) shall apply from XX.XX.20XX.

This Regulation shall be binding
in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               Communication from the Commission, Europe 2020. A
strategy for smart, sustainable and inclusive growth. Brussels - COM(2010) 2020,
3.3.2010.

[2]               Commission Communication of 13 April 2011: Single
Market Act - COM(2011) 206.

[3]               Council Resolution of 25 September 2008 on a
comprehensive European anti-counterfeiting and anti-piracy plan (OJ C 253,
4.10.2008, p. 1).

[4]               Council Resolution of 16 March 2009 on the EU Customs
Action Plan to combat IPR infringements for the years 2009 to 2012 (OJ C 71,
25.3.2009 p. 1).

[5]               Commission Communication of 11 November 2010:
‘Towards a Single Market Act - COM(2010) 608 final/2.

[6]               OJ C

[7]               OJ C253, 4.10.2008, p. 1.

[8]               OJ L 196, 2.8.2003, p. 7.

[9]               OJ L 302, 19.10.1992, p. 1.

[10]             OJ L 12, 16.1.2001, p. 1.

[11]             Resolution 2008/2133/INI.

[12]             OJ L 82, 22.3.1997, p. 1.

[13]             OJ L 281, 23.11.1995, p. 31.

[14]             OJ L 8, 12.1.2001, p. 1.

[15]             OJ L 55, 28.2.2011, p. 13.

[16]             OJ L 152, 16.6.2009, p. 1.

[17]             OJ L 198, 8.8.1996, p. 30.

[18]             OJ L 227, 1.9.1994, p. 1.

[19]             OJ L 78, 24.3.2009, p. 1.

[20]             OJ L 3, 5.1.2002, p. 1.

[21]             OJ L 93, 31.3.2006, p. 12.

[22]             OJ L 148, 6.6.2008, p. 1.

[23]             OJ L 149, 14.6.1991, p. 1.

[24]             OJ L 39, 13.2.2008, p. 16.

[25]             OJ L 199, 31.7.2007, p. 40.

[26]             OJ L 8, 12.1.2001, p. 1.

[27]             OJ L 281, 23.11.1995, p. 31.

[28]             OJ L 124, 8.6.1971, p. 1.