1994R3295 — EN — 05.06.2003 — 002.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B ►M1 COUNCILREGULATION(EC)No3295/94
of22December 1994
laying down measures concerning the entry into the Community and the export and re-export
fromtheCommunityofgoodsinfringingcertain intellectual propertyrights ◄
(OJ L 341, 30.12.1994, p. 8)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 241/1999 of 25 January 1999 L 27 1 2.2.1999
►M2Council Regulation (EC) No 806/2003 of 14 April 2003 L 122 1 16.5.2003
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COUNCILREGULATION(EC)No3295/94
of22December 1994
laying down measures concerning the entry into the Community
and the export and re-export from the Community of goods
infringingcertain intellectual propertyrights
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
inparticular Article 113 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social
Committee (3),
Whereas Council Regulation (EEC) No 3842/86 of 1 December 1986
laying down measures to prohibit the release for free circulation of
counterfeit goods(4) has been in force since 1 January 1988; whereas
conclusions should be drawn from the experience gained during theearly years of its implementation with a view to improving the opera-tionof the system it set up;
Whereas the marketing of counterfeit goods and pirated goods causes
considerable injury to law-abiding manufacturers and traders and toholders of the copyright or neighbouring rights and misleads consu-mers; whereas such goods should as far as possible be prevented frombeing placed on the market and measures should be adopted to that end
to deal effectively with this unlawful activity without impeding to
freedom of legitimate trade; whereas this objective is also beingpursued through efforts being made along the same lines at interna-tional level;
Whereas, in so far as counterfeit or pirated goods and similar products
are imported from third countries, it is important to prohibit theirrelease for free circulation in the Community or their entry for asuspensive procedure and to set up an appropriate procedure enablingthe customs authorities to act to ensure that such a prohibition can be
properly enforced;
Whereas actionby the customs authorities to prohibit the release for
free circulation of counterfeit or pirated goods or their entry for a
suspensive procedure should also apply to the export or re-export of
such goods from the Community;
Whereas, as regards suspensive procedures and re-export subject to
notification, action by the customs authorities will take place only
where suspected counterfeit or pirated goods are discovered during acheck;
Whereas the Community takes into account the terms of the GATT
agreement on trade-related intellectual property issues, including a
trade incoun terfeit goods, inparticular the measures to be takenatthe frontier;
Whereas provisionshould be made that the customs authorities are
empowered to take decisions on applications for action to be takenthat are submitted to them;
Whereas actionby the customs authorities should con sist either in
suspending the release for free circulation, export or re-export of goodssuspected of being counterfeit or pirated or in detaining such goods1994R3295 — EN — 05.06.2003 — 002.001 — 2
(1) OJ No C 238, 2. 9. 1993, p. 9.
(2) OJ No C 61, 28. 2. 1994.
(3) OJ No C 52, 19. 2. 1994, p. 37.
(4) OJ No L 357, 18. 12. 1986, p. 1.▼M1
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when they are entered for a suspensive procedure or re-exported
subject to notification for as long as is necessary to enable it to bedetermined whether the goods are actually counterfeit or pirated;
Whereas it is appropriate to authorize the Member States to detainthe
goods inquestionfor a certainperiod evenbefore anapplicationby the
right holder has beenlodged or approved inorder to allow him tolodge anapplicationfor actionby the customs authorities;
Whereas the competent authority should decide cases submitted to it by
reference to the criteria which are used to determine whether goodsproduced in the Member State concerned infringe intellectual propertyrights; whereas Member States' provisions on the competence of thejudicial authorities and procedures are not affected by this Regulation;
Whereas it is necessary to determine the measures to be applied to the
goods inquestionwhere it is established that they are coun terfeit or
pirated; whereas those measures should not only deprive those respon-
sible for trading in such goods of the economic benefits of thetransaction and penalize them but also constitute an effective deterrentto further transactions of the same kind;
Whereas inorder to avoid serious disruptionto the clearin g of goods
contained in travellers' personal luggage, it is necessary to excludefrom the scope of this Regulationgoods which may be coun terfeit or
pirated which are imported from third countries within the limits laid
downby Commun ity rules inrespect of relief from customs duty;
Whereas uniform application of the common rules laid down by this
Regulation must be ensured and to that end a Community proceduremust be established enabling measures implementing these rules to beadopted within appropriate periods and mutual assistance between theMember States, of the one part, and between the Member States andthe Commission, of the other part, to be strengthened so as to ensure
greater effectiveness;
Whereas it will be appropriate to consider the possibility of increasing
the number of intellectual property rights covered by this Regulation in
the light, inter alia, of the experience gained in its implementation;
Whereas Regulation(EEC) No 3842/86 should therefore be repealed,
HAS ADOPTED THIS REGULATION:
CHAPTER I
General
Article 1
1. This Regulationlays down :
(a) the conditions under which the customs authorities shall take action
where goods suspected of being goods referred to in paragraph 2(a)are:
— entered for free circulation, export or re-export, in accordance
with Article 61 of Council Regulation (EEC) No 2913/92 of
12 October 1992 establishing the Community Customs Code (
1),
— found in the course of checks on goods under customs supervi-
sion within the meaning of Article 37 of Council Regulation
(EEC) No 2913/92, placed under a suspensive procedure within
the meaning of Article 84(1)(a) of that Regulation, re-exportedsubject to notification or placed in a free zone or free ware-house within the meaning of Article 166 thereof;
and1994R3295 — EN — 05.06.2003 — 002.001 — 3
(1) OJ L 302, 19. 10. 1992, p. 1.▼M1
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(b) the measures which shall be takenby the competen t authorities
with regard to those goods where it has beenestablished that theyare indeed goods referred to in paragraph 2(a).
2. For the purposes of this Regulation:
(a) ‘goods infringing an intellectual property right’ means
— ‘counterfeit goods’, namely:
— goods, including the packaging thereof, bearing without
authorisationa trade mark which is iden tical to the trademark validly registered inrespect of the same type of goods,or which cannot be distinguished in its essential aspects
from such trade mark, and which thereby infringes the rights
of the holder of the trade mark inquestionun der Commu-nity law or the law of the Member State where theapplicationfor actionby the customs authorities is made,
— any trade mark symbol (logo, label, sticker, brochure,
instructions for use, guarantee document) whether presented
separately or not, in the same circumstances as the goodsreferred to in the first indent,
— packaging materials bearing the trade marks of counterfeit
goods, presented separately in the same circumstances asthe goods referred to in the first indent;
— ‘pirated goods’, namely: goods which are or embody copies
made without the consent of the holder of the copyright orneighbouring rights, or of the holder of a design right, whetherregistered under national law or not, or of a person dulyauthorised by the holder in the country of production, where
the making of those copies infringes the right in question under
Community law or the law of the Member State in which theapplicationfor actionby the customs authorities is made;
— goods infringing, in the Member State in which the application
for action by the customs authorities is made, a patent under thelaw of that Member State or a supplementary protection certifi-
cate as provided for by Council Regulation (EEC) No 1768/
92 (
1) or Regulation(EC) No 1610/96 of the EuropeanParlia-
ment and of the Council (2);
(b) ‘holder of a right’ means the holder of a trade mark, a patent or a
certificate and/or one of the rights referred to in (a), or any otherperson authorised to use that trademark, patent, certificate and/orright, or a representative thereof;
(c) ‘Community trademark’ means the trademark defined in Article 1
of Council Regulation (EC) No 40/94 (
3);
(d) ‘certificate’ means the supplementary protection certificate
provided for by Regulation(EEC) No 1768/92 or by Regulation(EC) No 1610/96.
3. Any mould or matrix which is specifically designed or adapted
for the manufacture of a counterfeit trade mark or of goods bearingsuch a trade mark, for the manufacture of goods infringing a patent ora certificate or for the manufacture of pirated goods shall be treated as
goods referred to inparagraph 2(a), provided that the use of such
moulds or matrices infringes the rights of the holder of the right inquestion under Community law or the law of the Member State inwhich the applicationfor actionby the customs authorities is made.
4. This Regulationshall n ot apply to goods which bear a trade mark
with the consent of the holder of that trade mark or which are protectedby a patent or a certificate, by a copyright or neighbouring right or by adesign right and which have been manufactured with the consent of theholder of the right but are placed in one of the situations referred to inparagraph 1(a) without the latter's consent.1994R3295 — EN — 05.06.2003 — 002.001 — 4
(1) OJ L 182, 2. 7. 1992, p. 1.
(2) OJ L 198, 8. 8. 1996, p. 30.
(3) OJ L 11, 4. 1. 1994, p. 1.
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It shall similarly not apply to goods referred to in the first subpara-
graph which have been manufactured or bear a trade mark underconditions other than those agreed with the holder of the rights in ques-
tion.
CHAPTER II
Prohibition of the entry, release for free circulation, export, re-export, placing under a suspensive procedure, or placing in a free
zone or free warehouse, of goods infringing certain intellectual
propertyrights
Article 2
The entry into the Community, release for free circulation, export, re-
export, placing under a suspensive procedure or placing in a free zoneor free warehouse of goods found to be goods referred to in Article1(2)(a) oncompletionof the procedure provided for inArticle 6 shall
be prohibited.
CHAPTER III
Applicationforactionbythecustomsauthorities
Article 3
1. Ineach Member State, the holder of a right may lodge anappli-
cation in writing with the competent service of the customs authorityfor actionby the customs authorities where the goods are placed inone of the situations referred to in Article 1 (1) (a).
Where the applicant holds a Community trade mark, the application
may seek action not only by the customs authorities of the Member
State inwhich the applicationis lodged but by the customs authoritiesof one or more other Member States as well.
Where electronic data interchange systems exist, Member States may
provide that the applicationfor customs actioncanbe made by usin g
a data processing technique.
2. The applicationreferred to inparagraph 1 shall in clude:
— a sufficiently detailed description of the goods to enable the
customs authorities to recognize them,
— proof that the applicant is the holder of the right for the goods in
question.
The holder of the right must also provide all other pertinent informa-
tion available to him to enable the competent customs service to take
a decision in full knowledge of the facts without, however, that infor-
mation being a condition of admissibility of the application.
By way of indication, in the case of pirated goods or of goods
infringing patents or certificates, that information shall, whereverpossible, include:
— the place where the goods are situated or the intended destination,
— particulars identifying the consignment or packages,
— the scheduled date of arrival or departure of the goods,
— the means of transport used,— the identity of the importer, exporter or holder.1994R3295 — EN — 05.06.2003 — 002.001 — 5
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3. Save where the second subparagraph of paragraph 1 is applied,
the application must specify the length of the period during which thecustoms authorities are requested to take action.
Applications under the second subparagraph of paragraph 1 shall indi-
cate the Member State or States inwhich the customs authorities arerequested to take action.
4. The applicant may be charged a fee to cover the administrative
costs incurred in dealing with the application.
The applicant or his representative may also be charged a fee in each
of the Member States where the decision granting the application iseffective, to cover the costs incurred in implementing the said decision.
Such fees shall not be disproportionate to the service provided.
5. The competent customs service with which an application drawn
up pursuant to paragraph 2 has been lodged shall deal with the applica-tion and shall forthwith notify the applicant in writing of its decision.
Where that service grants the application, the service shall specify the
period during which the customs authorities shall take action. Thatperiod may, uponapplicationby the holder of the right, be exten dedby the service which took the initial decision.
Where an application is submitted under the second subparagraph of
paragraph 1 the said period shall be set at one year, but may beextended for a further year, at the right-holder's request, by the servicewhich took the original decision
Any refusal to grant an application shall give the reasons for refusal
and may form the subject of an appeal.
6. Member States may require the holder of a right, where his appli-
cationhas beengran ted, or where actionas referred to inArticle 1 (1)
(a) has beentakenpursuan t to Article 6 (1), to provide a security:
— to cover any liability on his part vis-à-vis the persons involved in
one of the operations referred to in Article 1 (1) (a) where the
procedure initiated pursuant to Article 6 (1) is discontinued owingto anact or omissionby the holder of the right or where the goodsin question are subsequently found not be ►
M1goods referred to
inArticle 1(2)(a) ◄,
— to ensure payment of the costs incurred in accordance with this
Regulation, in keeping the goods under customs control pursuant
to Article 6.
Where an application is submitted under the second subparagraph of
paragraph 1, the security shall be provided ineach of the Member
States in which it is required and the decision granting the application
is effective.
7. The holder of the right is required to inform the service referred
to inparagraph 1 an d, where appropriate, the service or servicesreferred to inthe secon d subparagraph of Article 5(2), if his right
should happen no longer to be validly registered or to have expired.
8. Each Member State shall designate the service within the customs
authority competent to receive and deal with the applications referred
to inthis Article.
9. Paragraphs 1 to 8 shall apply mutatis mutandis to the extension of
the decision on the original application.1994R3295 — EN — 05.06.2003 — 002.001 — 6
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Article 4
Where, in the course of checks made under one of the customs proce-
dures referred to inArticle 1 (1) (a) an d before anapplicationby theholder of the right has beenlodged or approved, it appears eviden t to
the customs office that goods are ►
M1goods referred to inArticle
1(2)(a)◄, the customs authority may, inaccordan ce with the rules in
force in the Member States concerned, notify the holder of the right,where known, of a possible infringement thereof. The customsauthority shall be authorized to suspend release of the goods or detainthem for a period of three working days to enable the holder of the
right to lodge anapplicationfor actioninaccordan ce with Article 3.
Article 5
1. The decision granting the application by the holder of the right
shall be forwarded immediately to the customs offices of the Member
State which are liable to be concerned with the goods alleged in the
applicationto be goods referred to inArticle 1(2)(a).
2. Where an application is submitted under the second subparagraph
of Article 3(1), the first indent of Article 250 of Regulation (EEC) No2913/92 shall apply mutatis mutandis to the decision granting the saidapplication and the decisions extending or repealing it.
When the decision granting the said application has been taken, it shall
be up to the applicant to forward that decision together, where appro-priate, with any other useful information and any translations to the
customs-authority service referred to inthe first subparagraph of
Article 3(1) inthe Member State or States where the applican t hasrequested that action be taken. However, with the agreement of theapplicant, the information and translations may be forwarded directlyby the customs-authority service which took the decision. The applicant
shall provide additional information as deemed necessary for the
executionof the decision , at the request of the customs authorities ofthe other Member States concerned.
The period referred to inthe third subparagraph of Article 3(5) shall
run from the date on which the decision granting the application wastaken. The said decision shall not enter into force in the Member Stateor States to which it is addressed until the submission referred to in thesecond subparagraph has been made and, where appropriate, until the
fee referred to inthe secon d subparagraph of Article 3(4) has been
paid and the security referred to in Article 3(6) has been provided.However, the period of validity of the said decision may not, in anycircumstances, exceed the period of one year from the date of adoptionof the decision granting the original application.
The said decision shall then be forwarded immediately to the national
customs offices liable to be concerned with the alleged counterfeit
goods to which it relates.
This paragraph shall apply mutatis mutandis to any decision to extend
the original decision.
CHAPTER IV
Conditionsgoverning action by the customs authorities and by the
authoritycompetenttotakeasubstantivedecision
Article 6
1. Where a customs office to which the decision granting an appli-
cationby the holder of a right has beenforwarded pursuan t to Article 5
is satisfied, after consulting the applicant where necessary, that goodsplaced in one of the situations referred to in Article 1 (1) (a) corre-spond to the description of the ►
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1(2)(a)◄contained in that decision, it shall suspend release of the
goods or detainthem.1994R3295 — EN — 05.06.2003 — 002.001 — 7
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The customs office shall immediately inform the service which dealt
with the applicationinaccordan ce with Article 3. That service or thecustoms office, shall forthwith inform the declarant and the person
who applied for action to be taken. In accordance with national provi-
sions on the protection of personal data, commercial and industrialsecrecy and professional and administrative confidentiality, the customsoffice or the service which dealt with the applicationshall n otify theholder of the right, at his request, of the name and address of the
declarant and, if known, of those of the consignee so as to enable the
holder of the right to ask the competent authorities to take a substantivedecision. The customs office shall afford the applicant and the personsinvolved in any of the operations referred to in Article 1 (1) (a) theopportunity to inspect the goods whose release has been suspended orwhich have beendetain ed.
When examining the goods the customs office may take samples in
order to expedite the procedure.
2. The law inforce inthe Member State withinthe territory of
which the goods are placed in one of the situations referred to inArticle 1 (1) (a) shall apply as regards:
(a) referral to the authority competent to take a substantive decision
and immediate notification of the customs service or office referredto inparagraph 1 of that referral, un less referral is effected by thatservice or office;
(b) reaching the decision to be taken by that authority. In the absence
of Community rules in this regard, the criteria to be used inreaching that decision shall be the same as those used to determinewhether goods produced in the Member State concerned infringethe rights of the holder. Reasons shall be given for decisions
adopted by the competent authority.
Article 7
1. If, within 10 working days of notification of suspension of release
or of detention, the customs office referred to in Article 6 (1) has notbeenin formed that the matter has beenreferred to the authority compe-tent to take a substantive decision on the case in accordance with
Article 6 (2) or that the duly empowered authority has adopted interim
measures, the goods shall be released, provided that all the customsformalities have been complied with and the detention order has beenrevoked.
This period may be extended by a maximum of 10 working days in
appropriate cases.
2. In the case of goods suspected of infringing patents, certificates
or design rights, the owner, importer or consignee of the goods shallbe able to have the goods inquestionreleased or their deten tion
revoked against provision of a security, provided that:
(a) the customs service or office referred to inArticle 6(1) has been
informed, within the time limit referred to in paragraph 1 of thisArticle, that the matter has beenreferred to the authority competen tto take a substantive decision referred to in the aforesaid paragraph
1;
(b) onexpiry of the time limit, the authority empowered for this
purpose has not imposed interim measures; and
(c) all the customs formalities have beencompleted.
The security must be sufficient to protect the interests of the holder of
the right. Provisionof the security shall be without prejudice to the
other remedies opento the holder of the right. Where the matter has
been referred to the authority competent to take a substantive decisionother than on the initiative of the holder of the patent, certificate ordesignright, the security shall be released if that persondoes n ot exer-cise his right to institute legal proceedings within 20 working days ofthe date on which he is notified of the suspension of release or deten-1994R3295 — EN — 05.06.2003 — 002.001 — 8
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tion. Where the second subparagraph of paragraph 1 applies, this
period may be extended to a maximum of 30 working days.
3. The conditions governing storage of the goods during the period
of suspension of release or detention shall be determined by eachMember State.
CHAPTER V
Provisions applicable to goods found to be goods infringing an
intellectual propertyright
Article 8
1. Without prejudice to the other forms of legal recourse opento the
right-holder, Member States shall adopt the measures necessary toallow the competent authorities:
(a) as a general rule, and in accordance with the relevant provisions of
national law, to destroy goods found to be goods referred to inArticle 1(2)(a), or dispose of them outside the channels of
commerce insuch a way as to preclude in jury to the holder of the
right, without compensation of any sort and without cost to theExchequer;
(b) to take, in respect of such goods, any other measures having the
effect of effectively depriving the persons concerned of theeconomic benefits of the transaction.
Save in exceptional cases, simply removing the trademarks which have
been affixed to the counterfeit goods without authorisation shall not beregarded as having such effect.
2. The goods referred to inArticle 1(2)(a) may be han ded over to
the Exchequer. Inthat case, paragraph 1(a) shall apply.
3. In addition to the information given pursuant to the second
subparagraph of Article 6(1) and under the conditions laid down
therein, the customs office or the competent service shall inform theholder of the right, upon request, of the names and addresses of theconsignor, of the importer or exporter and of the manufacturer of thegoods found to be goods referred to in Article 1(2)(a) and of the quan-
tity of the goods inquestion .
CHAPTER VI
Finalprovisions
Article 9
1. Save as provided by the law of the Member State inwhich an
applicationinaccordan ce with Article 3(2) is lodged or, inthe case of
an application under the second subparagraph of Article 3(1), by the
law of the Member State inwhich goods referred to inArticle 1(2)(a)escape detectionby a customs office, the acceptan ce of anapplicationshall not entitle the holder of a right to compensation where such goodsare not detected by a customs office and are released or no action istakento detainthem inaccordan ce with Article 6(1).
2. Save as provided by the law of the Member State inwhich the
applicationis made or, inthe case of anapplicationun der the secon dsubparagraph of Article 3(1), by the law of the Member State inwhich
loss or damage is incurred, exercise by a customs office or by another
duly empowered authority of the powers conferred on them in regard totaking measures against goods referred to in Article 1(2)(a) shall notrender them liable towards the persons involved in the operationsreferred to in Article 1(1)(a) or Article 4, in the event of their sufferingloss or damage as a result of their action.1994R3295 — EN — 05.06.2003 — 002.001 — 9
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3. The civil liability of the holder of a right shall be governed by the
law of the Member State inwhich the goods inquestionwere placed inone of the situations referred to in Article 1 (1) (a).
Article 10
This Regulation shall not apply to goods of a non-commercial nature
contained in travellers' personal luggage within the limits laid down inrespect of relief from customs duty.
Article 11
Moreover, each Member State shall introduce penalties to apply in the
event of infringements of Article 2. ►
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effective and proportionate and constitute an effective deterrent. ◄
Article 12
The provisions necessary for the application of this Regulation shall be
adopted inaccordan ce with the procedure laid downinArticle 13
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Article 13
1. The Commissionshall be assisted by the Customs Code
Committee set up pursuant to Article 247 of Regulation (EEC)
No 2913/92.
2. Where reference is made to this Article, Articles 4 and 7 of Deci-
sion1999/468/EC (1) shall apply.
The period laid downinArticle 4(3) of Decision1999/468/EC shall be
set at three months.
3. The Committee shall adopt its ownRules of Procedure.
Article 14
Member States shall communicate all relevant information on the
applicationof this Regulationto the Commission .
The Commission shall communicate that information to the other
Member States.
For the purpose of the application of this Regulation, the provisions of
Regulation(EEC) No 1468/81 of 19 May 1981 onmutual assistan ce
between the administrative authorities of the Member States and coop-eration between the latter and the Commission to ensure the correctapplicationof the law oncustoms or agricultural matters (
2) shall apply
mutatis mutandis .
The details of the information procedure shall be drawn up in the
framework of the implementing provisions in accordance with Article13 (2), (3) and (4).
Article 15
Within two years of the entry into force of this Regulation, the
Commissionshall, onthe basis of the in formationreferred to inArticle
14, report to the European Parliament and the Council on the operationof the system particularly with regard to the economic and socialconsequences of counterfeiting and shall propose any amendments oradditions required, within a period of two years from the implementa-tionof this Regulation .1994R3295 — EN — 05.06.2003 — 002.001 — 10
(1) OJ L 184, 17.7.1999, p. 23.
(2) OJ No L 144, 2. 6. 1981, p. 1. Regulationas last amen ded by Regulation
(EEC) No 945/87 (OJ No L 90, 2. 4. 1987, p. 3).▼M2
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Article 16
Regulation(EEC) No 3842/86 shall be repealed as from the date of
implementation of this Regulation.
Article 17
This Regulation shall enter into force on the third day following its
publicationinthe Official Journal of the European Communities .
It shall apply from 1 July 1995.
This Regulation shall be binding in its entirety and directly applicable
inall Member States.1994R3295 — EN — 05.06.2003 — 002.001 — 11