WRITTEN QUESTION P-3012/00

by Ursula Stenzel (PPE-DE) to the Commission

(19 September 2000)

Subject: Polish Industrial Property Act

Commissioner Verheugen, acting on behalf of the Commission, has replied to my Written Question P-2326/00(1) with a suggestion that the problems caused by Article 322 of the Polish Industrial Property Act fall outside the scope of both EC law and the European Agreement with Poland.

Commissioner Verheugen has invoked Article 295 of the EC Treaty, which lays down that Member States are free to decide on their respective systems of property ownership, to support his opinion.

1. Does the Commission believe that Article 295 of the EC Treaty allows Member States to acquire property (e.g. a trade mark) located in foreign countries and therefore subject to foreign jurisdiction?

2. Does it believe that Article 295 of the EC Treaty covers the situation where a state obliges a private individual to transfer his property (e.g. a trade mark) to another person, who may be either a public or a private entity?

3. Can it confirm that, according to EC law (which Poland must incorporate into its domestic legal system, the registration of a trade mark is the basic source of rights over that trade mark?

4. In the light of the wording of Article 322 of the new Polish Industrial Property Act, which lays down that [t]rade marks registered in Poland or abroad in the name of [the current owners] shall be transferred, in Poland or abroad, to the manufacturer [mldr], does the Commission believe that the application by analogy of Article 295 of the Treaty to this legal provision is appropriate?

(1) OJ C 89 E, 20.3.2001, p. 183.

Answer given by Mr Verheugen on behalf of the Commission

(15 November 2000)

The Commission would refer the Honourable Member to its answer to her Written Question P-2326/00(1).

Poland is currently not a member of the Union. If the EC Treaty in its Article 295 (ex-article 222) explicitly states that This treaty shall in no way prejudice the rules in Member States governing the system of property ownership, then, a fortiori, the Community has no competence to intervene in property issues in countries that apply for membership. Therefore, the issue is, and would be even if Poland were already member of the Union, one for national law rather than Community law.

In this framework the questions posed by the Honourable Member relating to the interpretation of Article 295 are not relevant to the case in question as Poland is not a Member State. The Commission reiterates its view that, in falling outside the scope of the Europe agreement, the question is one for Poland's domestic law and its international obligations, as the European Union's common position for the Association Council also underlines. The Commission further notes in this context that the issue of the amendment in question has been sent to the Polish constitutional court for a ruling on its legality. If the legislation is not amended it will be for any company concerned to pursue directly through the appropriate legal channels.

With regard to the issue of respect of the acquis in the field of trademarks the Commission has made Poland fully aware of the obligations arising out of the acquis and that Poland must be in a position to meet these requirements upon accession.

(1) OJ C 89 E, 20.3.2001, p. 183.