Opinion of the Advocate General — ECLI:EU:C:2003:326
Date: 2003-06-05
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Commercial policy;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Common commercial policy — Measures designed to prevent the marketing of 
counterfeit and pirated goods — Regulation No 3295/94 — Scope — Goods in 
external transit — Included 
(Council Regulation No 3295/94, Arts. 2 and 11) 
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SUMMARY — CASE C-60/02 
2. Acts of the institutions — Regulations — Implementation by the Member States — 
Duty to interpret national law so as to be compatible with Community law — 
Limits — Principle of non-retroactivity of criminal offences and penalties 
1. Article 11 of Regulation No 3295/94 
laying down measures concerning the 
entry into the Community and the 
export and re-export from the Com­
munity of goods infringing certain 
intellectual property rights, as amended 
by Regulation No 241/1999, requires 
Member States to introduce penalties 
for infringements of the prohibition 
laid down in Article 2 of the regulation 
on the release for free circulation, 
export, re-export and placing under a 
suspensive procedure of counterfeit 
goods. Those provisions are applicable 
to situations in which goods in transit 
between two countries not belonging to 
the European Community are tempor­
arily detained in a Member State by the 
customs authorities of that State. 
(see paras 55, 64, 
operative part 1) 
2. The duty to interpret national law so as 
to be compatible with Community law, 
in the light of its wording and purpose, 
in order to attain the aim pursued by 
the latter, cannot, of itself and indepen­
dently of a law adopted by a Member 
State, have the effect of determining or 
aggravating the liability in criminal law 
of an entity which has failed to meet 
the requirements of a Community 
regulation. 
That obligation finds its limits in the 
general principles of law which form 
part of the Community legal system 
and, in particular, in the principles of 
legal certainty and non-retroactivity. In 
particular, the principle of non-retro­
activity of penalties, enshrined in 
Article 7 of the European Convention 
for the Protection of Human Rights 
and constituting a general principle of 
Community law common to the con­
stitutional traditions of the Member 
States, prohibits the imposition of 
criminal penalties for conduct which 
is not prohibited by a national rule, 
even if the national rule is contrary to 
Community law. 
(see paras 61, 63-64, 
operative part 2) 
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