EN    EN EN 
 
EN    EN  EUROPEAN COMMISSION 
Brussels, 22.12.2010 
SEC(2010) 1589 final 
  
COMMISSION STAFF WORKING DOCUMENT 
Analysis of the applicatio n of Directive 2004/48/EC 
of the European Parliament and the Council of 29 April 2004 
on the enforcement of intellectual pr operty rights in the Member States 
  
Accompanying document to the 
  
Report from the Commission to the Council, the European Parliament and the 
European Social Committee on th e application of Directive 2004/48/EC 
of the European Parliament and the Council of 29 April 2004 
on the enforcement of inte llectual property rights 
 
COM(2010) 779 final 
 
EN 2   EN TABLE OF CONTENTS 
1. Introduction and General remarks................................................................................ 4 
2. The transposition of the Di rective by the Member States and its application in 
practice ....................................................................................................................... .. 4 
2.1. Subject Matter and Scope of A pplication (Articles 1 and 2) ....................................... 5 
2.2. General provisions (Articles 3 to 5)............................................................................. 6 2.3. Gathering of Evidence and Measures to Preserve Evidence (Articles 6 and 7)........... 7 
2.3.1. Evidence gathering and preservation for all infringements of intellectual property 
rights......................................................................................................................... .... 7 
2.3.2. Evidence gathering in the case of infri ngements committed on a commercial scale... 9 
2.3.3. Evidence and protection of confidential information................................................. 10 
2.4. Right of Information (Article 8)................................................................................. 10 2.4.1. The impact of the right of information on the legislation and the jurisprudence in the 
Member States............................................................................................................ 11 
2.4.2. Conflicts between the ri ght of information and the right to privacy.......................... 12 
2.5. Injunctive relief (Articles 9 and 11)........................................................................... 13 2.5.1. Interlocutory injunctions (Article 9) .......................................................................... 13 2.5.1.1. General issues........................................................................................................ ..... 13 
2.5.1.2. Injunctions against intermediaries.............................................................................. 14 2.5.2. Permanent injunctions (Article 11) ............................................................................ 16 2.5.3. Scope of the injunctions............................................................................................. 17 2.5.4. Cross-border injunctions ............................................................................................ 17 2.6. Corrective and Alternative Meas ures (Articles 10 and 12)........................................ 19 
2.6.1. Meaning and purpose of "recall and defin itive removal of infringing goods from the 
channels of commerce" .............................................................................................. 19 
2.6.2. Destruction of the goods as a preferred corrective measure ...................................... 20 
2.6.3. Secondary use of the goods infri nging intellectual property rights ........................... 20 
2.6.4. Alternative measures.................................................................................................. 20  
2.7. Damages and legal costs (Articles 13 and 14) ........................................................... 21 2.7.1. Calculation of damages.............................................................................................. 21 2.7.2. Wilful and negligent infringements and infringements committed in good faith...... 22 2.7.3. Damages appropriate to the actual prejudice suffered by the rightholder ................. 22 
 
EN 3   EN 2.7.3.1. Rightholders' lost profits ............................................................................................ 22 
2.7.3.2. Infringers' profits................................................................................................... ..... 22 
2.7.3.3. Moral damages and damages for negative economic consequences ......................... 23 2.7.4. Lump sum damages.................................................................................................... 23 2.7.5. More far-reaching national rules................................................................................ 24 2.7.6. Legal costs and other expenses .................................................................................. 24 2.8. Codes of Conduct....................................................................................................... 24 3. Absence of harmonized protection of inte llectual property rights through criminal 
law............................................................................................................................ .. 25 
4. Conclusion.................................................................................................................. 26 
Annex 1: The transposition of the Directiv e by the Member States and Member States' 
application reports............................................................................................................ ........ 27 
1. Transposition process................................................................................................. 27 2. Implementation Reports............................................................................................. 27 
Annex 2: Methodology for the Analysis.................................................................................. 29 
 
EN 4   EN 1. INTRODUCTION AND GENERAL REMARKS  
Directive 2004/48/EC of the Eu ropean Parliament and of th e Council of 29 April 2004 on the 
enforcement of intellectual property rights1 (hereinafter referred to as the "Directive") was to 
be transposed by 29 April 2006. Ar ticle 18 of the Directive requi res Member States to submit 
to the Commission a report on the implementation of  the Directive three years after that date. 
The Commission Report on the application of Directive 2004/48/EC of the European 
Parliament and the Council of 29 April 2004 on the enforcement of intellectual property 
rights, which is complemented by this Staff Wo rking Document, is provided in application of 
Article 18 of the Directive. The report shall include an assessment of the effectiveness of the measures taken, as well as an evaluation of  its impact on innovation an d the development of 
the information society. 
The Report is based on the reports received from the Member States acco rding to Article 18 
of the Directive but also on the Commission's own assessmen t of the situation and on 
feedback received from stake holders and legal practitioners. 
Due to the late transposition of the Directive in many Member States and the fact that some 
Member State did not provide the applica tion report provided for in the Directive
2 or provided 
only some information of a very general nature, the information available on the impact of the 
Directive is too limited to allow for a full assessment of its effectiveness at this stage (see 
Annex 3 for further detail on the methodology of this  report). However, in the context of the 
European Observatory on Counterfeiting and Pi racy, DG Internal Market and Services works 
with experts from the private sector to assess th e application of the Directive and to complete 
the information received from the Member Stat es. Although this work is  still continuing, the 
information received so far allows already identif ying a certain number of issues related to the 
Directive that deserve attention. 
This paper (1) chronologically describes the tran sposition of the differe nt articles of the 
Directive by the Member States and their appli cation in practice, problems which have arisen 
in the interpretation of some provisions but also  sets out other issues that currently are not 
explicitly covered by the Directive but have proved to be of importance for an effective 
enforcement of intellectual property rights, and (2) draws a number of conclusions as to the 
issues that could be addresse d in the context of a possibl e review of the Directive. 
2. THE TRANSPOSITION OF THE DIRECTIVE BY THE MEMBER STATES AND ITS
 APPLICATION IN PRACTICE  
The Directive's provisions (only) relate to civ il law measures to enforce intellectual property 
rights. They encompass, in particular, eviden ce-gathering powers for judicial authorities, 
powers to force offenders and any other party co mmercially involved in an infringement to 
provide information on the origin of the infr inging goods and of the distribution networks, 
provisional and precautionary m easures such as interlocutory injunctions or seizures of 
suspect goods, corrective measures including permanent injunctions, recall and definitive 
                                                 
1 OJ L 157, 30.04.2004, p. 16. 
2 For details on the transposition process and the repo rts received from the Member States see Annex 1. 
 
EN 5   EN removal of the infringing goods from channels of commerce, powers to force offenders to pay 
damages and measures related to th e publication of j udicial decisions. 
2.1. Subject Matter and Scope of App lication (Articles 1 and 2) 
The Directive covers all infringement s of intellectual property rights3 without containing any 
definition of intellectual property rights . The scope is not limited to those rights harmonized 
at EU level, but also covers rights protected as intellectual property rights by national law.  
This technique used by the Directive has th e advantage of providi ng a high degree of 
flexibility as the Directive's scope adapts to  changing definitions of  intellectual property 
rights, both at EU and at national level. Howe ver, several questions remain open. Thus, some 
uncertainties have arisen as to whether domain names, trade (business) secrets , including 
know-how, are covered by the Direc tive, and whether the Directive is applicable to other acts 
of unfair competition  (for example parasitic copying). The status and the form of protection 
of trade (business) secrets,  including know-how, and the tr eatment of acts of unfair 
competition and of domain names is very differe nt among Member States. It seems to derive 
from the wording of the Directive that in cases  where they are protected as an intellectual 
property right at national level,  they should be understood as being covered by the scope of 
the Directive. However, in view of the divergin g interpretations in the Member States it could 
be important to provide some cl arification in that respect. 
Article 2(1) of the Directive states that Member States may provide for sanctions and 
remedies that are more favourable to righthold ers. The Directive ther efore provides only for 
minimum harmonisation  as far as enforcement measures are concerned. Some Member 
States have gone beyond the Directive's provisi ons and have introduced stricter measures. 
From the Commission's observations as well as from the stakeholders' consultation it however 
appears, that this was only the case for a few prov isions in the Directive. One of the examples 
where some Member States have gone beyond the Directive's wording was the right of 
information (Article 8) which, acco rding to the Directive, is li mited to the activities carried 
out on a commercial scale if the request is not directed toward s the infringer. A significant 
number of Member States (e.g. Denmark, Estonia, Greece, France, Lithuania, Slovak 
Republic) have gone beyond the ‘commercial scal e’ requirement (of which there is no 
definition in the Directive) and introduced this measure for all infringements (for more details see section 2.3.2). Another example where Memb er States have gone beyond the Directive's 
provisions was damages. As far as damages are concerned, most Member States did not 
specifically implement the Directive's provisions as  they felt that their national laws already 
covered them sufficiently. However, as far as lump sum damages are concerned, some 
Member States (e.g. Austria, Belgium, Greece,  Czech Republic, Lithuania, Poland, Romania, 
Slovenia) have moved beyond the Directive's provisions and introduced multiple damages 
awards. Such multiple (mostly double) awards ar e available for copyright (and rights related 
to copyright) infringements or for infringements committed in bad faith. 
                                                
 
3 In this paper, the term ‘intellectual property ri ghts’ is deemed to cover all rights set out in the 
"Statement by the Commission concerning Article 2 of Directive 2004/48/EC of the European 
Parliament and of the Council on the enforcement of intellectual property rights (2005/295/EC)", OJ 
L94, 13.04.2005, p. 37. These include copyright, rights related to copyright, sui generis right of a 
database maker, rights of the creator of the topographies of a semiconductor product, trademark rights, design rights, patent rights (including rights derived from supplementary protection certificates), 
geographical indications, utility model rights, plant variet y rights and trade names, in so far as they are 
protected as exclusive property rights  under the national law concerned.  
 
EN 6   EN At the same time, several voluntary provisions of  the Directive have no t been implemented by 
the Member States. It has been observed that these cases are more numerous than those where 
Member States provided for stricter measures . As an example, many Member States have 
opted for non-transposition of the alternative measures provided for in Article 12 of the 
Directive (e.g. Austria, Belg ium, France, Luxembourg, the Netherlands, and Slovenia). 
Likewise, many Member States (e.g. Czech Re public, Greece, Hungary, Malta, and Poland.) 
have opted for non-implementation of descripti on orders (Article 7( 1)), which are often 
available in criminal proceedings only.  
2.2. General provisions (Articles 3 to 5) 
As a procedural law, the Directive shall not affect substantive law on intellectual property, 
Member States' international obligations (notably the TRIPS Agreement4) including Member 
States provisions on criminal law. 
Article 3 introduces the general principle  that Member States shall provide for fair and 
equitable measures, procedures and remedies to ensure the enforcement of the intellectual property rights covered by this Directive. These measures, procedures and remedies shall also 
be effective, proportionate and dissuasive and sh all be applied in such  a manner as to avoid 
the creation of barriers to legi timate trade and to provide for safeguards against their abuse. 
Articles 4 deals with the persons entitled to have access to courts in order to seek 
application of the measures, procedures and remedies  laid down in the Directive. This 
group not only includes the right holders but also  all other persons authorised to use those 
rights, especially licensees, as well as collec tive rights management bodies and professional 
defence bodies. While the former had already b een protected by Member States' laws before 
the Directive was adopted, a majority of Member  States had to amend their legislation to 
include professional associations established fo r the protection of inte llectual property rights. 
Article 5 governs the presumption of authorship or ownership . This provision is based on 
the wording of Article 15 of the Berne Convention
5 and, in addition, extends it also to the 
owners of related rights. Requiring detailed and complex proof of copyright in the past often 
caused substantial delays or proceedings and lead  to inefficient judicial proceedings. Article 5 
therefore introduced a mechanism providing that, in  the absence of proof to the contrary, it is 
sufficient for the name of the author to appe ar on the work "in the usual manner", which is 
also applicable to the holders of rights relate d to copyright with regard to their protected 
subject matter. 
This tool turned out to be pa rticularly helpful for the variou s rightholders to fight against 
infringers' attempts to delay artificially the proceedings, in some cases without appropriate 
evidence, by denying the ownership of c opyright holders. It allowed namely phonogram 
producers to initiate court proceedings on be half of various right holders more easily. 
Furthermore, some rightholders reported that the presumption has made it easier to obtain 
cease-and-desist declarations from  infringers, and has therefore had the effect of reducing the 
number of court proceedings. A ma jority of Member States had to adapt their legislation to 
                                                 
4 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of 1994; 
Council Decision (of 22 December 1994) concerning the conclusion on behalf of the European Community, as regards matters within  its competence, of the agreemen ts reached in the Uruguay Round 
multilateral negotiations (1986-1994) (94/800/EC), OJ L 336, p.1.  
5 Berne Protection for the Protection of Literary and Artistic Works of 9 September 1886. 
 
EN 7   EN this provision, in particular by stating that th e name appearing on the work shall be admissible 
as proof of the holder of the right. 
2.3. Gathering of Evidence and Measures to Preserve Evidence (Articles 6 and 7) 
Articles 6 and 7 of the Directiv e set out a number of obligat ions on Member States with 
regard to gathering of evidence and measures to  preserve evidence. The aim of these measures 
is to produce evidence of the infringement to c ourts, even where it is not in the possession of 
the right holder. This evidence includes info rmation on the infringing products, on the means 
of production, the extent of the infringement etc., i.e. all the information that is indispensable 
for establishing an infringement of an intellectual property right. 
2.3.1.  Evidence gathering and preservation for al l infringements of in tellectual property 
rights 
Article 6(1) lies down that if  the rightholder has presented reasonably accessible evidence 
sufficient to support his claims and has, in substantiating those claims, specified evidence 
which lies in the control of the opposing party, th e competent judicial authority may order that 
the opposing party produce evidence under its cont rol. This provision was partly inspired by 
Article 43 of the TRIPS Agreement but in addi tion enables Member States to provide that 
courts may consider a sample of copies to constitute suffi cient evidence for the entire 
infringement (so called ' sampling' ). It has to be noted that sampling was already known in 
some Member States before the adoption of the Directive6 but was a novel provision in a large 
majority of Member States.7 In a large number of Member States, stakeholders acknowledged 
that the possibility of using sampling led to an  improvement in enforcing intellectual property 
rights, especially for th e protection of copyright.8  
Article 7 requires that the Member States shall, even before the commencement of 
proceedings on the merits of the case, order prompt and effective provisional measures  to 
preserve relevant evidence , subject to the protection of confidential information. Such 
measures may include the detailed description  (search), with or without the taking of 
samples, the physical seizure  of the infringing goods and, in appropriate cases, of materials 
and implements used in the production and/or  distribution of these goods and the documents 
relating thereto. Where necessary, these measur es shall be taken without the other party 
having been heard. They shall be revoked or ceas e to have effect if the applicant does not 
initiate, within a period specified by the Dire ctive, proceedings leading to a decision on the 
merits of the case before the competent judicial authority. In that case or where the infringement of the intellectual property right was not establishe d in the judicial proceeding, 
the judicial authorities shall ha ve the power to orde r the applicant to pr ovide the defendant 
with an appropriate compensation for any injury caused by those measures.  
As far as Articles 6 and 7 are concerned, th e Directive goes beyond th e TRIPS agreement but 
it also follows a Member States' best practice approach in the sense that it was inspired by 
those national provisions which proved to be effective for the enforcement of intellectual property rights. For example, Article 6(2) was based on the so-called 'Mareva injunction'
9 in 
                                                 
6 E.g. France, Hungary. 
7 The possibility of using sampling was introduced in Germany for instance only in 2008. 
8 Such feedback was received e.g. from stakeholders fr om Cyprus, Germany, Italy,  Lithuania; Poland (for 
trademarks), Romania. 
9 Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509. 
 
EN 8   EN the UK and in Ireland. Similarly, Article 7 wa s largely inspired by the practices in some 
Member States such as the UK ('Anton Pillar order')10 or France ('saisie-contrefaçon')11. 
In a number of Members States, the Directive’s rules on the presentation and preservation of 
evidence have lead to important ch anges in their national legislation.12  
Many Member States have, however , not made use of the options  provided for by Article 7 of 
the Directive. One example are description (search) orders  (Article 7 (1)) since this measure 
is more common in the context of criminal pr oceedings than for civil ones. Likewise, the 
protection of witnesses' identity  (Article 7(5)) in Member Stat es is often used rather in 
criminal than in civil proceedings. For some ot her Member States, this type of measure was 
already part of the general procedural laws a nd was therefore not transposed specifically with 
a view to proceedings on infringements of  intellectual property  rights. As far as 'sampling'  is 
concerned, it appears from information provide d by stakeholders that , despite it being a 
voluntary provision, it has been implemented in  a vast majority of Member States.  
In practice, problems concerning evidence gather ing and preservation have been observed in a 
number of areas. Thus, stakehol ders and in particular lega l practitioners report that cross-
border collection of evidence  in the context of judicial pro ceedings remains difficult. There 
are different ways to improve the collection of  evidence across borders. A first way could be 
to improve the rules on jurisdiction of the c ourts to issue provision al, including protective 
measures, so as to ensure that they cover pr otective orders aiming at obtaining information 
and evidence as referred to in Articles 6 and 7 of the Directive. Another way could be to 
ensure that when a court is faced with a measure granted by a foreign court which is not 
known in its own State, it shall,  to the extent possible, adap t the measure to one known under 
its own law. Finally, it could be very useful  to improve the free circulation of measures 
ordered ex parte  within the European Union. Necessa ry steps in this regard are being 
undertaken in the context of  the upcoming revision of C ouncil Regulation (EC) No 44/2001 
on jurisdiction and the recognition and enforcem ent of judgments in civil and commercial 
matters (Brussels I Regulation). 
Gathering evidence in relation to the infringements committed via the Internet  is becoming 
another significant problem. Th e relative anonymity of the Internet makes it often difficult to 
pursue the infringers. Infringers (such as sellers or owners of the websit es selling/facilitating 
the sale of the infringing items) cannot be pr operly identified. Evidence in a digital form is 
hard to preserve and images reflecting the c ontent of a webpage at a certain moment (so-
called 'screenshots') are often not accepted by the courts as sufficient evidence. This has led several Member States to concluding, in thei r reports addressed to  the Commission, that 
greater attention needs to be gi ven to the infringements of in tellectual property rights on the 
Internet and that the Directive does not suffici ently address this cons tantly growing, serious 
problem. 
                                                
 
10 Anton Piller KG v Manufacturing Processes Limited [1975] EWCA Civ 12). In Ireland, the so-called 
Anton Pillar Order was formalised by law.  
11 In France and in Belgium, before the transposition of Directive the well known  procedure called "saisie-
contrefaçon" was only available for the certain intellectual property righ ts such as patents, trademarks 
and designs. This procedure is now available for all intellectual property rights, including geographical 
indications. 
12 E.g. Estonia, Lithuania and Slovenia. 
 
EN 9   EN Another measure which is not uniformly applied in  the Member States relates to Article 6(1) 
according to which "if the rightholder has presented reasonably accessible evidence sufficient 
to support his claims and has, in  substantiating those claims, specified evidence  which lies in 
the control of the opposing party  the competent judicial author ity may order that the opposing 
party produce evidence under its control ". This provision is interpreted restrictively in some 
Member States13, and rightholders who ask for evidence which lies in the control of the 
opposing party, are frequently requested to sp ecify the exact character, location, reference 
numbers and contents of the re quested documents, sometimes ev en the page numbers of the 
defendant's commercial records. Where rightholders are not able to provide this information 
the requests are rejected by the courts as 'vague'. Stakeholde rs reported about a similar 
situation in relation to the right of informati on (Article 8). This practice of some courts 
reduces the effectiveness of Article 6 of the Di rective to a considerable extent. Another issue 
which has arisen is how broad th e term "control" should be interp reted; whether the disclosure 
obligation requires the person to disclose only evidence in its possession , whether this 
obligation extends to a ll information under its control  (a term which is broader than 
'possession') and/or whether the pers on is even required to undertake a reasonable search  for 
evidence. The practices of the courts vary in this  respect but the majority of the courts seem to 
limit the extent of the disclosure to the items in the possession  of the person(s) who is (are) 
required to disclose. It could be  useful to give more concrete  guidance as to how the term 
'control' should be interpreted. 
2.3.2.  Evidence gathering in the case of infr ingements committed on a commercial scale 
Under Article 6(2), Member States ' judicial authorities shall have  the possibility to order the 
communication of banking, fina ncial or commercial documents which are under the 
control of the opposing party, in case of an infringement committed on a commercial 
scale14, subject to the protection of  confidential information. Th is is a provision that goes 
beyond TRIPS, which does not contain any provision on this subject. 
The Directive, however, does not contain a de finition of the term 'commercial scale'.15 Several 
Member States transposed this article wit hout adding any legal definition of the term 
'commercial scale', which is therefore left to the interpretation by the courts.16 Only in few 
Member States the law provides for a definition of this term.17 The definition is often given by 
using the notion of "commercia l purpose" and defining it as "purposes aimed at direct or 
indirect economic or commercial gain"  or similar.18 These definitions are probably directly 
inspired by Recital 14 of the Directive according to which "acts carried out on a commercial 
scale are those carried out for direct or indirect economic or commercial advantage; this 
would normally exclude acts carried out by end consumers acting in good faith" . Other 
Member States have decided not to limit thes e measures to cases of commercial scale and 
                                                 
13 E.g. Greece. 
14 Also Articles 8(1) - right of information (in case the request is not directed towards the infringer) - and 
9(2) - seizure of the movable and immovable property, including the blocking of the infringer's bank account and other assets - are limited to the case of  infringements committed on a commercial scale. 
15 Recital 14 of the Directive however states that that  acts carried out on a commercial scale are "those 
carried out for direct or indirect economic or commercial advantage and that this would normally 
exclude acts carried out by end- consumers acting in good faith". 
16 E.g. Cyprus, Estonia, Hungary. 
17 E.g. Germany, Czech Republic, Romania, Slovenia. Italian scholars seem to conclude that "on a 
commercial scale" means "in the course of trade".  
18 Different e.g. Germany for copyright infringements ("number or severity of infringements"). 
 
EN 10   EN allow communication of banking, financial or co mmercial documents for all infringements of 
intellectual property rights.19 
2.3.3.  Evidence and protection of confidential information 
According to Article 6(1), Member States shal l ensure that, on application by a party which 
has presented reasonably available evidence suffic ient to support its cl aims, and has specified 
evidence which lies in the cont rol of the opposing party, the co mpetent judicial authorities 
may order that such evidence be presented by the opposing party, subject to the protection 
of confidential information . Also, in case an infringement is committed on a commercial 
scale, competent judicial aut horities shall be in a position to order communication of banking, 
financial and commercial documents whic h are under control of the opposing party, with the 
exception of confidential information  (Article 6(2)). Likewise , when ordering provisional 
measures, such as description, seizure or an injunction, due regard must be given to the 
protection of confidential inform ation (Article 7(1)). Also the right of information shall be 
"without prejudice" to th e provisions which govern the protection of confidentiality of 
information sources  or the processing of personal data (Article 8(3)(e)). It appears that 
Member States have not specifically transposed provisions related to the protection of confidential information claiming that their prev ious laws contained su fficient safeguards to 
protect confidential information. 
This restriction has shown to be  particularly relevant when commercial (trade) secrets or 
know-how are at stake. The burden of proof usually  lies with the plaint iff but some evidence 
needed to establish the infringement or its s cale is controlled exclusively by the (alleged) 
infringer. In such cases it appears that the cour ts often find it difficult  to assess and balance 
the rightholder's interest in the information and the alleged infringer's interest in protecting confidential information in order to prevent abuse,  in particular when the parties at stake are 
competitors. Member States' practice, on the one hand, shows that the protection of confidential information does not mean that acce ss to confidential information cannot be part 
of provisional measures. On the other hand, acc ess to the confidential information through 
provisional measures (by a sear ch, seizure or an injunction) appears to be allowed only in 
cases where this information is truly necessary  and where this information cannot be obtained 
by way of other (legal) means. Furthermore, a special procedure (e.g. hearing closed for the 
public) is usually applied when such confidentia l information is to be disclosed including 
limitation to use this information only for the pur poses of the proceedings . On the basis of the 
currently available information, the Commission is not in a position to judge whether this situation presents an obstacle to an effective enforcement of intellectual property rights. Therefore, more information on this matter in cluding clarification of the conditions as to 
when and how, according to the jurisprudence of the national courts , such confidential 
information may be disclosed would appear to be useful. 
2.4. Right of Information (Article 8) 
Article 8 of the Directive require s Member States to enable the competent judicial authorities 
to order that information be provided by the infringer or another person on the origin and 
distribution networks  of the goods which infringe intelle ctual property rights. The scope of 
the group of persons that can be forced to provide the information goes beyond the infringer . 
It is extended to any other person who was f ound in possession of th e infringing goods on a 
                                                
 
19 For instance, in France, Poland an d in Denmark this condition has no t been implemented and the access 
to banking, financial or commercial documents is le ft to the appreciation of the court without this 
limitation. It has to be noted that in France the no n-transposition of this condition is, according to the 
French Parliament, due to the difficulty to defi ne properly the notion of "commercial scale". 
 
EN 11   EN commercial scale, or was found to be using th e infringing services on a commercial scale or 
was found to be providing on a commercial scale se rvices used in infringing activities or was 
indicated as being involved in the production, manufacture or distribution of the goods or 
provision of the services. Such information may be requested also from other actors like 
intermediaries , for example Internet serv ice providers, transporters or online market places. 
It is important to note that this provision, due  to its limitation to act ivities carried out on a 
commercial scale, does not apply to consumers . 
The information shall comprise, firstly, the persons involved in the infringing activitie s. In 
this context, it is essential not only to identif y the persons at the end of the distribution chain, 
but also to detect those who ar e "behind the scenes", often as  part of complex distribution 
networks. Secondly, the provision allows gathering information about the quantities 
produced including the price obtained . This article substantially supplements Article 47 of 
the TRIPS Agreement, which gives the TRIPS members only an option  to provide that the 
judicial authorities are competent to order th e infringer to inform the right holder of the 
identity of third persons involved in the produc tion and distribution of the infringing goods or 
services and of their ch annels of distribution.  
2.4.1.  The impact of the right of information on th e legislation and the jurisprudence in the 
Member States 
In some Member States the right of informa tion towards the alleged infringer already existed 
before the adoption of the Directive.20 However, the right to obt ain information from third 
parties not directly involved in the proceedings seems to have been a novel in most Member 
States. Some Member States provide for the right of information only in the context of 
judicial proceedings, as fores een by the Directive, other Memb er States have gone beyond the 
Directive and provide for a right of inform ation even before the formal proceedings, as a 
provisional measure . Some Member States seem to provide  for the right of information only 
in cases of infringements committed on a commercial scale.  The other Member States have 
moved beyond the Directive and prov ide for the right of informati on for all infringements. At 
least in one of these Member States, this solutio n was chosen because the legislator wanted to 
avoid the problems related to the interpre tation of the commercial scale criterion21. In some 
Member States22 (it appears that when the information request is directed towards a third 
party, the commercial scale requi rement is applied but such re quirement is not imposed in 
case the information is requested from the alleged infringer.  
After the transposition of the Directive, national courts have seen a significant increase in 
requests for information. Member States and stakeholders seem to agree that this provision has improved the ability to trace infringers c onsiderably and has fac ilitated a better knowledge 
of the infringers
23. Furthermore, this provision has had a significant impact on the possibilities 
to establish the "exact quantities of infr inging products involved" and therefore on the 
accuracy of the calculation of da mages. At the same time it appears that some rightholders 
find it difficult to establish that the infringe r has acted on a commercial scale without having 
obtained information from the Internet service pr ovider, in particular on different IP addresses 
                                                 
20 This was the e.g. case in the UK where, in addition to Mareva injunction and the Anton Pillar Order, the 
so-called "Norwich Pharmacal order" was in place. 
21 In France. 
22 E.g. Belgium, Germany, Hungary, Luxemburg, Poland. 
23 E.g. Sweden. 
 
EN 12   EN used by the same infringer. In general, many re quests for information from third parties seem 
to be directed towards In ternet service providers.  
2.4.2.  Conflicts between the right of information and the right to privacy 
The right of information has become an im portant tool for the rightholders to pursue 
infringers, and frequent use of this tool by the rightholders prove s this. Also the possibility of 
intermediaries to share the data with the right holders would be an impor tant element in this 
context. In certain areas, it however appears, th at the right of information by the right holders 
is limited because of the national provisions on the protection of personal data. In some 
Member States (e.g. Spain, Austria) it seems that the disclosure of the relevant information is 
practically impossible in both cr iminal and civil proceedings.24 This is in particular the case 
for IPR infringements committed via the Internet such as illegal file-sharing of protected works through peer-to-peer protocol where Intern et services providers may often not be in a 
position to disclose alleged infringers' identities and contact details to rightholders even in the context of judicial proceedings because of th e privacy laws and the protection of personal 
data. The situation is even more complicated if the request for information is made before the 
start of judicial proceedings.  
The question that arises is how to strike the balance between the fundame ntal right to property 
(which includes the protection of intellectual property
25) on the one hand a nd that to privacy26 
on the other. The need to balance the various rights  was emphasized by the European Court 
of Justice27 which stated that Community law requires a fair balance to be struck between the 
various fundamental rights prot ected by the Community legal or der and that the authorities 
and courts of the Member States must not only interpret their national law in a manner 
consistent with the directives but  a l s o  m a k e  s u r e  t h a t  t h e y  d o  not rely on an interpretation 
which would be in conflict with those fundamental  rights or with the other general principles 
of Community law, such as the principle of proportionality .  
In those Member States where privacy laws28 currently prevail over the right to (intellectual) 
property it can be difficult for the rightholders to make eff ective use of their right of 
information. However, the European lega l framework on the protection of personal 
data/privacy on the one hand a nd enforcement of intellectual property rights on the other is 
                                                 
24 In Spain, data may only be disclosed for the purposes  of prosecution or investigation of serious criminal 
offences (infringement of intellectual property rights do not seem to fall within this category), and any extension would be illegal unless it would be embedded in the law. In Austria, the reform of the 
criminal procedure removed the possibility to bring a private criminal action ("Privatanklage") without 
knowing the identity of the infringer. The only possibility for rightholders now seems to be to launch a civil information claim under copyright law, which is not effective in case of temporary IP addresses. 
Study on Online Copyright Enforcement and Data Protection in Selected Member States, Hunton & 
Williams, November 2009 available at: http://ec.eu ropa.eu/internal_market/iprenforcement/docs/study-
online-enforcement_en.pdf. 
25 Article 17(2) of the Charter of Fundamental Rights of the European Union states that intellectual 
property shall be protected. 
26 Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.  
27 Judgment of 29 January 2008 in the case C-275/ 06 Productores de Música de España (Promusicae) v 
Telefónica de España SAU; judgment of 19 February 2009 in the case C-557/07 LSG-Gesellschaft zur 
Wahrnehmung von Leistungschutzrechten GMBH v Tele2 Telecommunication GMBH. 
28 In particular laws implementing Directive 95/46/EC on the protection of individuals with regard to the 
processing of personal data and on the free movement of such data, OJ L 281, 23.11.1995, p. 31, and 
Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic 
communications sector, OJ L 201, 31.7.2002, p. 37. 
 
EN 13   EN neutral, in that there is no rule  that would imply that the right to privacy should generally take 
precedence over the right to property or vice ve rsa. National laws implementing the various 
directives must therefore be construed in a wa y allowing a balance to be struck between these 
rights in each case in order to guarantee that the provision on the right of information can 
protect the rightholders effectiv ely without compromising rights relating to the protection of 
personal data. Further evaluations could be needed on the extent to which Member States' laws and the way they are applied are consistent  with these requirements. If necessary, means 
could be considered to remedy th e situation and to strike an appropriate balance between the 
rights at stake. 
Another obstacle faced by the ri ghtholders when requesting information appears to be linked 
to the retention of the relevant data by intermediaries . Again, this problem seems to be 
most relevant in cases of infringements comm itted via the Internet. Often the data which are 
requested (for example from the Internet servic e providers or Internet platforms) have not 
been stored, or by the time the request for inform ation is delivered, the da ta have already been 
erased. Currently, data retention is dealt wi th at EU level only in the Data Retention 
Directive
29 and in the e-privacy Directive30.  
Finally, the fact that certain types of information (e. g. clin ical data) may be subject to 
different confidentiality regim es in different countries causes additional problems for 
rightholders. These differences lead to uncertainties as to whether information legally obtained in one country may be used in anot her country where it falls under confidentiality 
rules, and vice versa.  
2.5. Injunctive relief (Articles 9 and 11) 
2.5.1.  Interlocutory injunctions (Article 9) 
2.5.1.1.  General issues 
Article 9 of the Directive obliges Member States  to ensure that rightho lders are in a position 
to apply for an injunction against the infringer  aimed at prohibiting th e continuation of the 
infringement ('interlocutory', 'int erim' or 'temporary' injunction).
31 It appears that injunctions 
against infringers were not new to Member St ates' legal systems and seem to have been 
widely used in the Member Stat es even before the adoption of  the Directive. Non-compliance 
with an injunction is sa nctioned by a fine to be paid to the plaintiff32 or to the court33 or by 
criminal sanctions in some cases. The reports received from the Member States suggest that 
for most of them experiences with interlocutor y injunctions have been rather positive. With 
some exceptions, interlocutory injunctions genera lly seem to be granted rather quickly by the 
courts and they often lead to a settlement be tween the parties so that  the proceedings on the 
                                                 
29 Directive 2006/24/EC on the retention of data gene rated or processed in connection with the provision 
of publicly available electronic communications services or of public communications networks and 
amending Directive 2002/58/EC, OJ L 105, 13.4.2006, p. 54. 
30 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the 
processing of personal data and the protection of privacy in the electronic communications sector 
(Directive on privacy and electronic communications), OJ L 201, 31.7.2002, p. 37. 
31 This provision was partly inspired by Article 50 of the TRIPS agreement. However, an important 
addition to TRIPS is that such injunctions shall also be available against intermediaries whose services are used by a third party to infringe an intellectual property right. 
32 E.g. the Netherlands. 
33 Germany, Slovak Republic and the UK. 
 
EN 14   EN merits of the case can be avoide d. For most stakeholders, due to the length of the judicial 
proceedings involving infringements of intell ectual property rights and the costs of the 
proceedings which are rarely reflected in the damages awar ded in the main proceedings, 
interlocutory injunctions are the main enforcement remedy. 
Despite this general positive assessment of the interlocutory injunctions, the information at 
hand suggests that the level of evidence  required by the courts to grant an injunction differs 
significantly between Member States and, in gene ral, is rather high. Wh ereas in cases of an 
infringement of a trade ma rk, design or copyright the 'obviousness' of the infringement may 
often be assumed, in cases of pate nt infringements this is rarely the case. Moreover, it appears 
that some courts sometimes are reluctant to or der an injunction unless an infringement has 
actually been proven, as opposed to granting an injunction for preventative reasons. In these 
cases, the 'sufficient degree of ce rtainty' that is required by the courts is higher than what 
applicants are able to establish in practise.34 Furthermore, in some cases, the accompanying 
costs appear to be rather significant, since such  costs often comprise court fees, lawyers’ fees, 
bailiff's fee and in many cases also fees of (technical) experts.35 
2.5.1.2.  Injunctions against intermediaries 
The notion of 'intermediary'  is understood broadly by the Di rective and includes all persons 
"whose services are used by a third party  to infringe an intellect ual property right". This 
implies that even intermediaries who do not have a direct contractual relationship or 
connection with the infringer ma y be subject to these measures  provided for in the Directive.36 
Nevertheless, there are still uncertainties as to  which kind of intermediaries, regardless of 
their liability, may be subject to a specific m easure when contributing to or facilitating an 
infringement37. 
Intermediaries who transport goods suspected of infringing intellect ual property rights or 
infringing intellectual property rights (such as ca rriers, freight forwarders, shipping agents or 
postal services) may play an important role in controlling the spreadi ng of counterfeit goods. 
Internet service providers are also key player s in the functioning of the online environment. 
They provide, inter alia,  access to the Internet and interc onnect the underlying networks and 
host websites and servers. Internet service provi ders, being the intermediaries between all the 
users of the Internet, on the one  hand, and the rightholders, on th e other, are often placed in a 
compromising position due to the infringing acts of  their customers. For this reason, EU law 
already contains specific provi sions concerning Internet servi ce providers whose services are 
used to infringe intellectual pr operty rights. Nevert heless, the current EU legal framework 
only harmonises certain limitations of liability in relation to Internet service providers where 
certain conditions are satisfied, whilst not affecti ng the possibility of Member States' courts or 
                                                 
34 In Finland, it seems to be rather difficult for the rightholders to convince the courts of the need for an 
interlocutory injunction, except in cases of clear online infringements. 
35 Stakeholders indicate that such costs may vary between EUR 3,500 and 25,000, and in patent 
infringement cases up to EUR 40,000. 
36 Therefore not only intermediaries used (directly) by the infringer are covered by  the Directive, but also 
intermediaries used by a third party to infringe an intellectual property right. 
37 E.g. in Sweden the notion of 'i ntermediaries' is limited to " anyone who contributes to the infringement ". 
 
EN 15   EN administrative authorities, in accordance with Member States’  legal systems, to take action in 
individual cases38. 
In the area of the sale of counterfeit goods over the Internet, feedback received from 
stakeholders indicates that intermediaries (for  example online market places such as online 
shopping sites) have realized that the presence and the sale of counter feit goods via their sites 
undermines their efforts to be rega rded as a safe place to buy and sell pro ducts and that their 
reputation is tarnished. In many cases, th ese intermediaries therefore have adopted 
comprehensive policies on the protection of in tellectual property righ ts which are clearly 
spelled out on their sites. These policies include sanctions for us ers which breach the rules, in 
particular for the repeat infr ingers, comprehensive notice and take-down processes and other 
tools that allow a timely elimination of illegal offers, the sharing of information with rightholders and reimbursement schemes for consumers who unintentionally bought 
counterfeit goods on their site. 
All these measures have been applied wit hout affecting the liability status of the 
intermediaries and have significantly contribu ted towards the elimination of counterfeiting on 
the Internet; however , problems remain. 
Injunctions against intermediaries  whose services are used by a third party to infringe 
copyright or related rights were  already enshrined in Article 8(3) of Directive 2001/29/EC on 
the harmonisation of certain aspects of copyri ght and related rights  in the information 
society
39 (and subsequently in Arti cle 11 (third sentence) of Di rective 2004/48). However, it 
became clear after the implement ation of Directive 2001/29/EC that some Member States 
interpreted this provision rather restrictively, as to only provide injunctive relief against intermediaries in the context of  pending court proceedings or after the decision on the merits 
of the case, and not as a provisional measure.  
To remedy this restrictive approach, Article 9 of the Directive applies to all intellectual 
property rights
 as a provisional measure , i.e. irrespective as to whether the formal court 
proceedings on the same case are pending or not but  where, nevertheless, an alleged infringer 
is concerned. The article therefore introduced a new element which needed to be reflected 
through changes in national laws in  almost all Member States. It  results from Member States' 
reports that injunctions against intermediaries  are used relatively often  as the infringers 
are often unknown. It has been re ported by the Member States and legal practitioners that 
injunctions against intermediaries often encourag e the infringing party to engage in settlement 
discussions. Several Member States stressed th e importance of interlocutory injunctions in 
cases related to the Internet. It was pointed out that one effect of the Directive was that new 
measures clarified that interm ediaries (e.g. Internet service providers) also have certain 
responsibilities (and obligations ) and that they cannot rely on "absolute immunity" when 
intellectual property rights are infringed. Injuncti ons have also been su ccessfully used towards 
intermediaries in order to block access to the sites which facilitate works protected by 
copyright or related right without  the consent of the rightholder.40 
                                                 
38 Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in 
particular electronic commerce, in the Internal Market (Directive on  electronic commerce), OJ L 178, 
17.7.2000, p.1.  
39 OJ L 167, 22.6.2001, p. 10.  
40 In Denmark, injunction against Tele 2 A/S was granted by the court to block access to a Russian 
website. In another case in Denmark, DMT 2 A/S (now Sonofon A/S) was required by the court to 
prevent access to a popular website. 
 
EN 16   EN However, some Member States41 report that injuncti ons against intermediaries have been 
more difficult to apply due to difficulties to execute court orders against intermediaries who have not been parties to the proceedings. 
Furthermore, it appears that in some Member States it is not possibl e to issue injunctions 
unless the liability of an intermediary is esta blished. However, neither Article 11 (third 
sentence) of the Directive, nor Ar ticle 8(3) of Directive 2001/29 link injunctions with the 
liability of an intermediary . Therefore, although Direct ive 2000/31/EC on certain legal 
aspects of information society services, in particular electronic commerce, in the Internal 
Market
42 (hereinafter referred to as "the e-commer ce Directive") provides certain exemptions 
in relation to the liability of intermediaries who provide information society services where 
certain conditions are satisfied, such exemptions  do not prevent the possi bility of granting an 
injunction against intermediaries covered by the scope of Article s 12 to 14 of the Directive. 
Injunctions against intermediaries are not intend ed as a penalty against them, but are simply 
based on the fact that such intermediaries (e.g. Internet service provider s) are in certain cases 
in the best position to stop or to prevent an infringement. This interpretation is confirmed by Articles 12(3), 13(2) and 14( 3) and by Recital 45 of the e-commerce Directive
43 and Recital 
59 of Directive 2001/29/EC on the harmonization of  certain aspects of copyright and related 
rights in the information society44.  
As far as third parties are concerned, these are only addressed indirectly in Article 8(3) of 
Directive 2001/29 and Article 11 (third sentence) of Directiv e 2004/48 where Member States 
are required to ensure that rightholders are in a position to apply for an injunction against 
intermediaries whose services are used by a third party to in fringe a copyright tor related 
right. The aim of the respective provisions of each those Directive is that injunctive relief can be granted against the intermediary irrespecti ve whether there has been a determination of 
liability of the intermediary or the third party. Other than these provisions, third party liability 
has been left to the legal sy stem of each Member State. 
2.5.2.  Permanent injunctions (Article 11) 
Article 11 of the Directive requires that where a judicial decision confirming an infringement 
of an intellectual property ri ght is taken, judicial authorit ies may issue an injunction 
('permanent' injunction) against the infringer  aimed at prohibiting the continuation of the 
infringement. In the same way as temporary in junctions, permanent injunctions can also be 
issued against intermediaries and they may be issued against them irrespective of the 
                                                
 
41 E.g. Czech Republic, Estonia. 
42 OJ L 178, 17.7.2000, p. 1. 
43 Recital 45 of Directive 2000/31/EC reads: "(45) The limitations of the liability of intermediary service 
providers established in this Directive do not affect th e possibility of injunctions of different kinds; such 
injunctions can in particular consist of orders by  courts or administrative authorities requiring the 
termination or prevention of any infringement, in cluding the removal of illegal information or the 
disabling of access to it.". 
44 Recital 59 of Directive 2001/29/EC reads: "(59) In the digital environment, in particular, the services of 
intermediaries may increasingly be used by third pa rties for infringing activities. In many cases such 
intermediaries are best placed to bring such infringi ng activities to an end. Therefore, without prejudice 
to any other sanctions and remedies available, rightholders should have the possibility of applying for 
an injunction against an intermediary who carries a third party's infringement of a protected work or 
other subject-matter in a network. This possibility should be available even where the acts carried out 
by the intermediary are exempted under Article 5. The conditions and modalities relating to such 
injunctions should be left to the national law of the Member States.". 
 
EN 17   EN intermediaries' (pot ential) liability . Since injunctions against the infringers are reported as 
having been used by the Member States already prior to the adoption of the Directive, the 
Directive seems to have had a limite d impact in this respect. Again, injunctions against 
intermediaries  were a new element which had to be introduced into the national laws in 
almost all Member States.  
2.5.3.  Scope of the injunctions 
The scope of the injunctions seems to be generally determined by the scope of the rights 
and/or the attacked infringement. The dictum of an injunction in the Member States differs in 
its degree of detail. Recently, cer tain problems in relation to the scope of the injunctions (both 
interlocutory and permanent) have arisen with  a view to infringements committed through the 
Internet. In the music and film sectors , injunctions often tend to be  'title specific' . 
Rightholders therefore have to provide a full list  of titles when asking  for an injunction and 
the injunction will normally relate only to the indicated titles, while in fringements with a view 
to titles not contained in the list can continue. Similar problems seem to exist with a view to 
the sale of counterfeit goods via online market places. 
Diverging opinions on this issue have resulted  in two requests for preliminary rulings being 
submitted to the Court of Justice of the European Union. 
In case C-324/09 (L'Oréal v eBay)  which concerns the sale of counterfeit goods via an 
intermediary who is an online marketplace, the referring UK High Court of Justice asked 
whether the injunction as describe d in Article 11 of the Directive should have been interpreted 
as requiring Member States to ensure that the trade mark proprietor could obtain an injunction against an intermediary to prevent further infringements  of the said trade ma rk, as opposed to the 
continuation of that specific act of infringement , and if so, what the scop e of the injunction would 
be. 
In another case C-70/10 (Scarlet v SABAM)  the referring Cour d'appel de Bruxelles
 asked 
the Court of Justice of the European Union wh ether the national courts  may also issue an 
injunction against intermediaries whose servic es are used by a third party to infringe a 
copyright or related right, to order an Intern et service provider to introduce, for all its 
customers, in abstracto and as a preventive measur e, exclusively at the co st of that Internet 
service provider and for an unlimited pe riod, a system for f iltering all electronic 
communications, both incoming an d outgoing, passing via its serv ices, in particular those 
involving the use of peer-to-peer  software, in order to identify  on its network the sharing of 
electronic files containi ng a musical, cinematographic or a udio-visual work in respect of 
which the applicant claims to hold rights, and subsequently to bloc k the transfer of such files, 
either at the point at which they are requested or  at which they are sent. It also asked whether 
the principle of proportionality should be ap plied when deciding on the effectiveness and 
dissuasive effect of the measures sought.  
Both procedures are currently pending before the Court of Justice of the European Union. 
2.5.4.  Cross-border injunctions 
Cross-border injunctions pose diffe rent problems, depending on th e nature of the intellectual 
property right that is being infringed. 
 
EN 18   EN In cases of infringements of the Community trade mark45, or of a Community design46, 
granting of such cross-border injunctions by the European Union trade mark courts (or 
European Union design courts) is foreseen by the law as these rights are unitary EU titles. 
Stakeholders, however, report that , in practice, cross-border injunctions are generally not 
granted by the courts of the Member Stat es even in the case of these rights. 
The situation is even more complex for infringements of patent  rights, in the absence of a 
uniform title, i.e. an EU patent. In the late 19 90s, some courts began to issue injunctions in 
cases of patents infringeme nts which reached beyond the territorial boundaries of the 
respective jurisdiction. This “legal innova tion” started in the Netherlands and was 
subsequently picked up by courts in various other countries. This judicial practice soon 
became rather controversial, with some national courts following the Dutch example (e.g. in Germany) while other courts (e.g. in the UK)  refused to assume jurisdiction over foreign 
patents. From the perspective of patent- holders, cross-border in junctions were highly 
attractive since they lowered the cost of li tigation and opened new avenues in terms of 
litigation strategy.
 Subsequently, the European Court of Justice issued rulings in two cases, 
which resulted in limiting to an important extend  the practice of cross-border injunctions for 
patent infringements.47 The decision of the court in Roche v. Primus and Goldberg effectively 
strongly limited the possibility to bring proceedings against severa l patent infringers even if 
patents belong to the same group of companies acting in a coor dinated manner in accordance 
with a common policy elaborated by one of th em. However, a court having jurisdiction on the 
basis of the defendant's domicile (Article 2 of the Regulation 44/2001) may still have the 
power to issue injunctions with extra-territorial effect.  
As regards granting cross-borde r injunctions in cases of copyright  infringements, there does 
not seem to be an established jurisprudence. It could therefore seem useful to examine under 
which conditions such injuncti ons can be granted. A distin ction between the rules of 
attributing jurisdiction could be made. While th e jurisdiction of a court, when based on the 
place where the infringement causes harm, is lim ited to measures concerning its own territory, 
no such limitation exists when jurisdiction is ba sed on the domicile of the defendant. In this 
later case, cross-border inj unctions are not excluded.  
                                                 
45 Article 103(2) of Council Regulation (EC) No 207/2009 on the Community trade mark reads: "A 
Community trade mark court whose jurisdiction is based on Article 97(1), (2), (3) or (4) shall have 
jurisdiction to grant provisional and protective measures which, subject to any necessary procedure for 
recognition and enforcement pursuant to Title III of Regulation (EC) No 44/2001, are applicable in the 
territory of any Member State. No other court shall have such jurisdiction.". 
 The territorial scope of the measures ordered by a Community trade mark cour t, which finds that an 
infringement has been committed, is currently the subject of a request for preliminary ruling in the case C-235/09 before the Court of Ju stice of the European Union. 
46 Article 90(3) of the of Council Regulation (EC) No 2002/6 on the Community design reads: “A 
Community design court whose jurisdiction is based on Article 82(1), (2), (3) or (4) shall have jurisdiction to grant provisional measures, including protective measures, which, subject to any 
necessary procedure for recogniti on and enforcement pursuant to Title III of the Convention on 
Jurisdiction and Enforcement, are app licable in the territory of any Me mber State. No other court shall 
have such jurisdiction.”. 
47 Judgment of 13 July 2006 in the case C-4/03 Gesellschaft für Antriebstechnik mbH & Co. KG v 
Lamellen und Kupplungsbau Beteiligungs KG (GAT v LU K); and judgment of 13 July 2006 in the case 
C-539/03 Roche Nederland BV and others v Frederick Primus, Milton Goldenberg (Roche v. Primus 
and Goldberg). 
 
EN 19   EN 2.6. Corrective and Alternative Measures (Articles 10 and 12) 
Article 10 of the Directive requires that the co mpetent judicial authorities may order recall 
from the channels of commerce of goods wh ich have been found to be infringing an 
intellectual property right, and in appropriate cases also materials and implements principally 
used in the creation or manufacture of these goods. Furthermore, their definitive removal from the channels of commerce or their destruction ma y be ordered. Such measures shall be carried 
out at the expense of the infringer. 
2.6.1.  Meaning and purpose of "recall and definitive removal of infringing goods from the 
channels of commerce" 
As far as recall and definitive removal  of infringing goods from the channels of commerce 
are concerned, these measures appear to have be en new to most Member States' legislation on 
intellectual property. Only few Member States seem to have been familiar with this kind of measures from the legislation on consumer prot ection. However, rightholders seem to request 
these measures not very often. This may be due, to a large extent, to the limited enforceability 
of the measures, particularly when an infri nger is no longer the owner of the goods which are 
to be recalled or definitely removed and therefore has no mean s to dispose of the goods (for 
example when the infringing goods have already reached consumers or, in certain cases, 
retailers). It has also been reported that the courts are rather hesitant to order recall or 
definitive removal of the infringing goods, in pa rticular in cases where the goods reached the 
final consumers. 
Furthermore, Member States have been using th ese measures in different ways. This may be 
partly due to the fact that the Directive doe s not define these two measures and does not 
define the difference between them. Most Member  States seem to use 'recall' as a temporary 
measure, which maybe reversed following a fina l decision. Thus, recall seems to be used by 
the majority of the Member States when the goods are no longer in the possession of the 
defendant. The defendant then is usually ordere d by the court to claim the goods back from its 
customers (wholesalers, distributors, retailers etc.). 'Definitive removal' indicates the finality of the ordered measure for most Member States , and in some Member States (e.g. France) an 
order for definitive removal is often used as a precondition for destruction. In some countries, 
recall and definitive removal are used with out any distinction (e.g. Greece, Spain, and 
Romania). In Sweden a non-exhaustive  list of measures, includi ng those mentioned in the 
Directive has been introduced with explic it references to other measures, such as alteration  or 
the taking into custody for the rema inder of the term of protection . Finally, there seem to be 
different views as to whether th ese measures may be ordered by th e courts only as a result of 
the proceedings on the merits of  the case or also as a provisional measure. In some Member 
States (e.g. in Poland, Denmark), recall may be i ssued as a preliminary measure, before the 
proceedings on the merits are commenced. In Germany it has been reported by the 
stakeholders that according to the prevailing case-law, claims for recall or definitive removal may only be raised in proceedings on the merits and not in preliminary proceedings.
48  
The short time that has passed since the tran sposition of the Direc tive, in many Member 
States has not allowed to acquire sufficient experience, on the side of the courts, with the 
                                                 
48 Although there are some other opinions saying that recall may be included into injunction claim, in case 
the infringers still control the infringing goods. 
 
EN 20   EN corrective measures, and especially the recall and definitive removal from the channels of 
commerce. This makes it difficult, at this stag e, to determine their overall effectiveness.  
2.6.2.  Destruction of the goods as a preferred corrective measure 
Generally, the  destruction of infringing goods seems to be the preferred (and most commonly 
used) corrective measure. A court decision c onfirming an infringement normally is the 
necessary precondition49. The destruction is provided for as a civil sancti on, therefore the 
injured party must specifically request destruction  (whereas in criminal and administrative 
proceedings it may be ordered by the competent court/administrative board ex officio ). 
However, when the destruction of infringing go ods is ordered in civil law proceedings, the 
question arises who should bear the costs of the destruction and the rela ted costs of storage. 
According to Article 10(2) of the Directive, these costs have to be born by the infringer 
(defendant). However, practic e shows that these costs ofte n have to be borne by the 
rightholders who then are give n the right to claim reimbursement from the infringers 
(defendants). Moreover, when rightholders subse quently claim these costs from the infringer, 
the latter often turns out to be insolvent (in liquidation), which means that these costs cannot 
be recovered. In transhipment cases (e.g. exte rnal transit, customs warehousing etc.) the 
defendant is usually unknown. Good faith interm ediaries/service providers are normally not 
ordered to pay the costs of the destruction (and related costs of storage), but there seem to be 
very few precedents in this respect. In German y, it has been observed that intermediaries or 
service providers become subject to legal clai ms for destruction only, where they are either 
'interferer' ('Störer') or direct contributors to  the infringement. It co uld seem reasonable to 
provide that when there is a decision on the me rits of the case, the costs of destruction of 
infringing goods should be imposed by the court directly on th e unsuccessful party. 
2.6.3.  Secondary use of the goods infri nging intellectual property rights 
The so-called secondary use of goods infringi ng intellectual property rights  consists e.g. 
in the removal of the infringing sign, logo or trad e mark from the goods, in its recycling or its 
donation to charity. 
This issue is not harmonized by the Directive. Co nsequently, practices in  Member States seem 
to differ considerably. In some Member States it seems that goods are destroyed only if their 
secondary use is not possible (e .g. Italy). In other Member Stat es secondary use appears to be 
permitted only in exceptional cases, and there are Member States where secondary use of goods infringing intellectual property rights does not  seem to be permitted  at all (e.g. France, 
Greece, Slovenia). Additional information is needed  in order to judge what role the secondary 
use of goods infringing intellectua l property rights should play in the context of enforcement 
of intellectual proper ty rights and whether further harmoni zation in this respect would be 
useful. 
2.6.4.  Alternative measures 
From information received it appears that less than half of the Member States have 
implemented Article 12 of the Directive which provides for an option for Member States to 
introduce alternative measures in the form of a pecuniary compensation to the injured party 
                                                
 
49 An exception applies in particular for geographical indications where the perishable nature of certain 
products requires the possibility to order their rapid destruction.  
 
EN 21   EN if the person that infringed the intellectual property right acted uni ntentionally and without 
negligence, if execution of ot her measures would cause disproportionate harm and if 
pecuniary compensation app ears reasonably satisfactory.50 Furthermore, in some of these 
Member States51 the conditions for an 'unintentional infringement without negligence' are 
interpreted very narrowly given th at the standards to act with due care are set at a relatively 
high level. 
2.7. Damages and legal costs (Articles 13 and 14) 
Article 13(1) of the Directive requires Member  States to enable the competent judicial 
authorities to order the infringer who know ingly, or with reason able grounds to know, 
engaged in an infringing activity, to pay the right holder damages appr opriate to the actual 
prejudice suffered by him as a result of th e infringement. Where the infringer acted in good 
faith (i.e. without reasonable ground to know), Member States have the possibility to allow 
the judicial authorities to order the recovery of  profits or the payment of damages, which may 
be pre-established (Article 13( 2)). Article 14 requires that th e reasonable and proportionate 
legal costs and other expenses incurred by the successful party shall be borne by the 
unsuccessful party, unless equity does not allow it.  
Since the pecuniary value of intellectual property may be rather difficult to measure, also due 
to its 'abstract' nature, practice has shown th at assessing damages for infringements of 
intellectual property rights is often compli cated. Damages from sales of counterfeit goods 
over the Internet are even more difficult to as sess, and it often happens that after having been 
discovered, infringers quickly re-appear unde r a different name. This situation has not 
changed significantly through the entry into force of the Directive. In most cases only slight 
adjustments of national laws governing the calcul ation and award of damages were needed to 
make Member States comply with the Directive.  However, due to the relatively low number 
and the considerable length of th e judicial proceedings, there is not yet an established case 
law on the evaluation and assessment of damages si nce the transposition of the Directive in 
the Member States. At the same time it seems that existing judgements have not been overly 
explicit and detailed on how awarde d damages have been calculated. 
However, most rightholders repor t to prefer quick provisional measures (e.g. injunctions) and 
not damages claims as the main enforcement remedy. The reasons for this are the high costs of the proceedings which are rarely reflected  in the damages awarded and the length of 
judicial proceedings involving infringements of intellectual property rights. Therefore 
damages awards in intellectual property cases are not requested by rightholders as a matter of 
course. 
2.7.1.  Calculation of damages 
The Directives provides for two possibilities fo r the judicial authorities to determine the 
amount of the damages:  
(1) They can base the amount on the  actual prejudice  (e.g. the rightholde r's lost profits, 
the infringer's unfair profits, moral prejudice and other negative economic 
consequences); 
                                                
 
50 This article was implemented e.g. by Denmark, Estonia, Germany, Lithuania, Malta, Poland, Romania 
and Sweden. 
51 E. g. Germany. 
 
EN 22   EN (2) Or they can award  lump sum  damages based on at least the (single)  amount of 
royalties which would have been due if the infringer has requested authorisation to use 
the intellectual proper ty right(s) in question (e.g. if  an infringer had concluded a 
licensing agreement with  a right holder).  
2.7.2.  Wilful and negligent infringements and infringements committed in good faith 
It appears that all Member States  provide for damages in cases of wilful or negligent  
infringements of intellectual property rights (A rticle 13(1)). However, some Member States 
also award damages for infringements committed in 'good faith'  (Article 13(2)), and 
therefore the mere existence of an infringement  is a sufficient justification for the rightholder 
to claim damages. Certain specificities seem to exist for copyright infringements and for 
infringements of rights related to copyright wh ere often good faith is irrelevant for claiming 
damages. This is different from patent infri ngements, where in some Member States damages 
may be claimed only for infringements committed intentionally. 
Most Member States seem to award damages regardless of whether the infringement is 
committed on a commercial scale,  and there is generally no ove rall limitation on damages. 
2.7.3.  Damages appropriate to the actual pr ejudice suffered by the rightholder 
2.7.3.1.  Rightholders' lost profits 
When awarding damages, it appears that all Member States take the rightholders' lost profits  
into account. Lost profits are usually defined as  profits which would have been earned by the 
rightholder, in the absence of th e infringement, or which could have been justifiably expected 
(excluding the infringer's profits ). Nevertheless, in some Member States it seems unclear, 
whether the price of the original  product or the price of a c ounterfeit/pirated product (which 
may be substantially lower in some cases) shou ld be taken into account when assessing the 
rightholder's lost profits. Moreove r, lost profits can be difficult to prove, in particular where 
infringing activities undermine th e value of legal sales. Extens ive infringing activities often 
make the branded goods lose their 'exclusivity' which leads to a decline in consumer demand, 
damage to goodwill etc.. 
2.7.3.2.  Infringers' profits 
The profits unlawfully made by the in fringer ('unjustified enrichment')  constituted a new 
aspect for assessing damages in some Member States and it has been implemented into the 
national legislation in very different ways.  
Many Member States require a rightholder to prove  that profits were made with or as a result 
of the infringing products (causal link). Infrin gers may sometimes make higher profits with 
the infringing products than the rightholders w ith their branded goods. Ri ghtholders appear to 
find it very difficult to prove that they would ha ve earned the same profits as the infringers, 
particularly where the infringers offer their products under conditions that significantly differ 
from those of the legal channels (e.g. lower pr ices, lower manufacturi ng costs, absence of 
related services etc.). Furthermore, in some Member States52 it appears that infringers' profits 
can only be taken into considera tion once, either as a recovery of unfair profits or as damages 
                                                 
52 E.g. Slovak Republic. 
 
EN 23   EN (or part of damages), but not in a cumulative way. In other Member States53 the transfer of 
infringers' profits are awarded as an altern ative, when the profits  are higher than the 
rightholder's calculated damages (e.g. the rightholders' lost prof its). Finally, in some Member 
States54, in addition to damages, also  the transfer of the infrin ger's profits may be ordered. 
2.7.3.3.  Moral damages and damages for negative economic consequences 
With respect to moral damages  (as part of immaterial damages) and damages for negative 
economic consequences  (as part of material damages; fo r example price erosion, tarnishment 
of a trademark etc.), rightholde rs report that they are not requesting them as a matter of 
course, and that where such requests have been made they have only occasionally been successful. They also report that mo ral damages tend to be rather low.
55  
Therefore, despite the fact that rightholders ha ve the right to claim damages in these cases it 
seems that damages for negative economic conse quences and moral damages are rarely used 
in practice. It appears that one of the main r easons for this is that proving such damages may 
be very difficult. However, Member States' la ws are too recent and too few precedents exist 
as this stage to properly assess the implications of this provision of th e Directive in practice. 
2.7.4.  Lump sum damages 
Member States generally provide for lump su m damages calculated on the basis of the amount 
of royalties that would have been due if the infringer had sought an authorisation (licence) 
from the rightholder. Where a licence royalty is al ready fixed and used in the relevant sector, 
this amount will be used; if there is not an ag reed royalty rate or where it is difficult to 
determine precise rates, often an estimated aver age royalty related to the specific type of 
business involved is used.  
From information received it seems that there are doubts whether the criteria for the 
calculation of damages (damages appropriate  to the actual prejudice suffered by the 
rightholder and lump sum damages) are alternative , and therefore leave a real choice to the 
judicial authorities, or whethe r the lump sum damages only come into play if the damage 
cannot be assessed according to the actual prejud ice suffered. It appears that Member States' 
practice in this respect varies. In some Member States (e.g. Hungary, Latvia, Slovak 
Republic) it appears that lump  sum damages are available only if  damages cannot be 
calculated otherwise, for example in cases wh en the actual prejudice cannot be calculated 
precisely. In those cases, the amount of the damage  is assessed on the basis of the principle of 
equity. In other Member States (e.g. the Nether lands, Poland), it seems that courts or parties 
can freely choose according to which criterion they assess the damage. 
The wording of the Directive s uggests the judicial authorities should be allowed to assess the 
damage according to the actual pr ejudice or to award them as a lump sum, as they consider 
more appropriate. It could also be desirable for th e rightholders to be able to opt for one or the 
other method of calculation, depending on which is for them the most favourable. 
                                                 
53 E.g. Germany and Italy. 
54 E.g. Benelux countries in cases of bad faith. 
55 In Hungary, there seems to be an "upper" limit of HUF 1 million (approx. EUR 3,500) for moral 
damages awards. 
 
EN 24   EN 2.7.5.  More far-reaching national rules 
It should be noted that, in respect of specific infringeme nts (mostly infringements of 
copyright and rights related to copyright), a significan t number of Member States56 appear to 
have gone beyond the minimum rules set out by the Directive by in troducing lump sum 
damages set as multiple (mostly double) am ounts of royalties (licensing fees) due. 
Furthermore, at least one Member  State reports to provide for punitive damages .57 
2.7.6.  Legal costs and other expenses 
Most Member States did not need to implement this provision specifically as their previous 
civil procedural laws already covered the Directiv e's requirements. In principle, the successful 
party can recover costs of proceedings necessary  for the effective protection or enforcement 
of intellectual property rights. However, the amount to be reimbursed can be reduced or 
eliminated in cases where the wins are only partial. Moreover, if the costs incurred are 
disproportionate or unnecessary, the courts can order a partial recovery of the costs.  
The costs of litigation concerning intellectual property rights are often very high. This is 
partly due to the fact that in order to gather proper and reliab le evidence, technical expert(s) 
(e.g. such as patent agen ts in patent cases or Internet investigator(s))  must be engaged by the 
rightholders. Moreover, the rightholders must sometimes do 'test purchases' in order to 
confirm an infringement of their rights or to gather evidence. Translations are often required, 
too. Furthermore, given the (oft en) cross-border nature of th e infringing activities, experts 
from several jurisdictions may be required to assist. These costs are not always fully taken 
into consideration by the courts. In some jurisdictions, only the fees of the experts appointed 
by the court are reimbursed. 
It appears that rightholders rarely are reim bursed all legal costs and other expenses they 
encounter to protect their rights in the proceed ings concerning infringe ments of intellectual 
property rights. Stakeholders' consultation reve aled the following, very different, experiences 
with the reimbursement of the legal costs in a successful litigation: 10-50% in Denmark, 'only 
a small percentage' in Greece, 30% in Ital y, 10-30% in Luxembourg, 50% in Cyprus, 66%-
100% in Romania, 'very low' in Spain, about 75% in Sweden, 50-70% in Austria, 80% in 
Ireland. The possibility of a 100% reimburseme nt was reported for Lithuania, Hungary, 
Slovakia and Austria for simple cases. Many stakeholders were not able to state the 
percentage because of inconsistent experien ce and disparate case-law (e.g. Latvia). One 
respondent (Slovakia) stated th at lawyers' fees are substan tially limited when the claims 
cannot be assessed in monetary  terms (e.g. where the rightholde r requests termin ation of the 
infringing activities). 
To summarise, it seems that the reimburseme nt of legal costs and other expenses in a 
successful litigation usually remains far below the actual legal costs incurred. 
2.8. Codes of Conduct 
Article 17 of the Directive obliges the Member States to encourage the development, by trade 
or professional organisations, of codes of conduct at Union level that are aimed at 
contributing towards the enforcement of intellectual property rights. 
                                                 
56 E.g. Austria, Belgium, Czech Republic, Germany, Greece, Lithuani a, Poland, Romania and Slovenia. 
57 Slovenia. 
 
EN 25   EN In several Member States associations have ma de use of such a collaborative approach and 
have put in place national codes of conduc ts (voluntary arrangements) to combat 
counterfeiting and piracy.58 In some cases, such voluntary agreements became the basis for 
legislation.59 However, in other Member States such arrangements would seem not to be 
possible, mainly due to the re strictions imposed by privacy la ws and protection of personal 
data, which prevent intermediaries (e.g. Internet service providers) to forward warning notices 
to the alleged infringers or to share informa tion about the alleged infringer's identity outside 
the scope of judicial proceedings. 
3. ABSENCE OF HARMONIZED PROTECTION OF INTELLECTUAL PROPERTY RIGHTS 
THROUGH CRIMINAL LAW  
Counterfeiting and piracy appears to be  increasingly linked to organised crime60 raising 
security and safety concerns and is also prove n to be spreading over the Internet. Therefore 
measures taken against cybercrime  at EU level should be seen as relevant and complementary 
to the legislative and non legislative measures ta ken and to be taken in the civil and criminal 
area. 
Despite the fact that almost all Member Stat es provide for criminal measures to protect 
intellectual property rights, the disparities be tween the national definitions of the kind and 
level of penalties for the vari ous infringements of intellect ual property rights may make it 
difficult to combat these infringements effectively.  
The Commission is currently analysing to what  extent protection of  intellectual property 
rights through criminal law via a harmonized dir ective on criminal measures is necessary to 
supplement the enforcement of intellectual pr operty rights through civil law. Absence of 
harmonisation in the area of criminal measures to protect intellectual pr operty rights could be 
a serious obstacle and hinder cr oss-border cooperation between the law enforcement agencies. 
Following this assessment,  the Commission intends to present a new legislative proposal 
which would replace the 2006 proposal fo r a Directive on criminal sanctions61. 
                                                 
58 In Estonia, it has been reported that a Memorandum of Understanding was signed between Estonian 
Organisation of Copyright Protection and several internet service providers to enable the removal of material that infringes intellectual property rights. In  Denmark, internet servi ce providers together with 
the Danish IT Industry Association (ITB) and the Telecommunication Industries in Denmark (TI) have 
agreed to collaborate on combating piracy on the internet and a Code of Conduct for internet service providers concerning the enforcement of intellectual property rights has also been agreed. Similarly in 
France, the " Charte de lutte la contrefaçon sur Internet" was signed between the French online market 
places and rightholders to advance the fight against the sale of counterfeit goods over the internet. 
59 For example "Élysée agreement  for the development and protection of creative works and cultural 
programmes on the new networks" was a basis of the legislation which was adopted subsequently in 
France. 
60 See e.g. Europol, 'OCTA 2009 - EU Organised Crime Threat Assessment', 
http://www.europol.europa.eu/publications/Europ ean_Organised_Crime_Threat_Assessment_(OCTA)/
OCTA2009.pdf. 
61 Amended proposal for a Directive of the European Parliament and of the Council on criminal measures 
aimed at ensuring the enforcement of intellectual property rights (COM(2006) 168 final).  
 
EN 26   EN 4. CONCLUSION  
On the basis of the information available at this stage it can be concluded that the Directive 
has provided a solid basis for the enforcement of intellectual property rights in the internal market and led to considerable improvements of the legal frameworks in place in the Member 
States. 
However, the analysis shows that some of the provisions of the Directive have led to 
diverging interpretations by the Member Stat es and by the courts, and some of these 
provisions have not fully reached the objectives pursued by the Directive. At the same time, 
infringements of intellectual property rights ha ve reached a significant level. The provisions 
concerned could therefore be clarified. Clarific ation could also be necessary in order to 
reinforce the dissuasive e ffect of the Directive  and therefore its effectiveness. 
 
EN 27   EN Annex 1: The transposition of the Directive by the Member States  
and Member States' application reports  
1. Transposition process 
Few Member States transposed the Enforcement Directive on time, i.e. by 26 April 2006: only 
5 Member States (Denmark, Hungary, Italy, Slovenia and the UK) complied with the 
deadline.  
Most of the Member States were late w ith the implementation. 20 infringements for non-
communications were recorded, namely agains t Austria, Belgium, Cyprus, Czech Republic, 
Estonia, Finland, France, Germany, Greece, Ireland, Latvia, Lithuania, Luxembourg, Malta, 
the Netherlands, Poland, Portugal, Slovak Republic , Spain and Sweden. Ou t of these, 15 cases 
were closed before reaching the stage of refe rral to the Court of Justice of the European 
Union. A referral was made for Germany, L uxembourg, Sweden, France and Portugal.  
Subsequently, the case was withdrawn for Fran ce and Portugal. The last Member States to 
implement the Directive were Germany (July 2008), Sweden (April 2009) and Luxembourg 
(June 2009), after a deci sion confirming an infringement had been taken by the Court of 
Justice. Despite of having notified complete tran sposition, in the course of the works to draw 
up this report it turned out that Greece seems not to have implemented  the Directive it its 
entirety yet, but only in respect of copyright and related rights.  
2. Implementation Reports 
Article 18(1) of the Directive obliges Member States to submit, three years after the expiry of 
the deadline for the tr ansposition, a report to the Commi ssion on the implementation of the 
Directive. 
However, even by autumn 2010, not all nati onal reports have been received by the 
Commission. Thus, Bulgaria and Spain did no t provide any report. Greece provided an 
incomplete report covering only copyright and ri ghts related to copyright . Some reports have 
been received by the Commission with a signi ficant delay (e.g. the reports by Belgium and 
Sweden which were received in May 2010, Luxem burg and Portugal only sent their report in 
October 2010). 
Furthermore, the completeness and the quality of these national reports appear to differ 
considerably. The late transposition of the Direct ive was, for some of reports, the main reason 
for this difference in quality. The most comple te reports are reflecti ng in depth the national 
situation and contain statistical data including jurisprudence. Some Member States have also 
provided the Commission with information on st akeholders' perceptions. Such reports have 
been received by the Commission for exampl e from Denmark, Estonia, Germany, Hungary, 
Ireland, Latvia, Lithuania, Poland and Slovenia. 
From the other, less detailed reports, it was not  possible to make a clear assessment of the 
implications the Directive has had on innovati on and the development of the information 
society. Cyprus, France, Luxembourg, Malta, the Slovak Republic and the UK have provided 
reports with particularly limited information.  
 
EN 28   EN As a result, the Commission has not been able to e ngage in a critical economic analysis of the 
effects that this Directive ma y have had on innovation and the development of the information 
society. 
 
EN 29   EN Annex 2: Methodology for the Analysis  
1. Information gathering from the Member States 
The Commission's services have carefully examined the national implementation reports 
provided by the Member States and have integr ated information contained in these reports 
into the text of the Staff Working Paper. Apart from the information contained in these reports, the Commission did not receive a substa ntial amount of additional information from 
the Member States' authorities, neither during the implementation period, nor after the transposition of the Directive into the national law. As a result, and because of the reasons 
mentioned above, the informati on received had to be compleme nted from other sources, in 
particular through consulta tion with rightholders, and in particular thr ough the consultation of 
legal experts from the private s ector who meet regularly in th e legal subgroup that has been 
formed in the context of the European Observatory on Counterfeiting and Piracy. 
2. Information gathering fr om the stakeholders 
The legal subgroup formed in the context of th e European Observatory on Counterfeiting and 
Piracy made an attempt to screen the implementation and the application of the Directive in all 27 Member States. It concentrated on the nati onal legislation as well  as the national court 
practices. The work was divided into several sections: damages and legal costs, corrective 
measures, evidence and right of informat ion and injunctions, where four detailed 
questionnaires have been produced by the subg roup together with th e Commission services. 
These questionnaires were subsequently forwarde d to rightholders and le gal practitioners in 
all Member States. Detailed responses are available at the website of the European 
Commission.
62 The summaries of the responses also contain some conclu sions and practical 
recommendations for improvement. 
A substantial amount of information was gather ed through bilateral contacts and consultation 
papers issued by the business associations. Comm ission services have also held a number of 
meetings with private sector stakeholders and with individual companies (in particular 
rightholders and intermediaries) on the operation of the Directive. 
                                                 
62 http://ec.europa.eu/internal_market/iprenforcement/observatory/index_en.htm