Judgment — ECLI:EU:C:2009:93
Date: 2009-02-12
Language of the case: Latvian
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Free movement of goods;Commercial policy;Intellectual, industrial and commercial property;Customs Union
Concepts: Measures to combat counterfeiting in trade with third countries
Procedure: Reference for a preliminary ruling
Origin: Latvia

Summary of the Judgment Common commercial policy – Measures to prevent counterfeit or pirated goods being placed on the market – Regulation No 1383/2003 – Simplified procedure of abandoning goods, suspected of infringing an intellectual property right, for destruction (Council Regulation No 1383/2003, Arts 11 and 18) The initiation, with the agreement of an intellectual property right‑holder and of the importer, of the simplified procedure laid down in Article 11 of Regulation No 1383/2003 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, does not deprive the competent national authorities of the power to impose, on the parties responsible for importing those goods into the Community customs territory, a ‘penalty’, within the meaning of Article 18 of that regulation, such as an administrative fine. The initiation of such a simplified procedure – the introduction of which into the legal order of Member States is only optional – cannot deprive the authorities of those States of the power to impose a ‘penalty’ within the meaning of Article 18 of Regulation No 1383/2003, since that provision, read in conjunction with recital 10 in the preamble to that regulation, provides that Member States are required to introduce penalties, in case of infringement of that regulation, which must be effective, proportionate and dissuasive. In that regard, the destruction of the goods following an optional procedure, subject to an agreement between the trade mark proprietor and the importer, cannot be considered as a penalty imposed by a national authority applying the system of penalties which the Member States are required to introduce pursuant to that provision. (see paras 27-30, 33, operative part)