2. and 3.

The fight against counterfeiting and piracy is one of the priorities for the Commission which is already involved in the adoption of vigorous measures intended to improve and step up the fight against counterfeiting and piracy. On 22 July 2003, the Council of Ministers adopted on the basis of a Proposal from the Commission (2) a new Regulation (3) to improve customs controls to counteract infringements of intellectual property rights. This new law will provide a broader protection than previous measures as well as better, simpler and cheaper protection for right holders of all nationalities. In parallel with this tighter legislation, the Commission wanted to improve customs control in this field by developing and attempting to harmonise new criteria for better risk analysis. In 2002, for example, the Italian customs authorities alone intercepted almost 36 million counterfeit or pirated items. In addition, the Commission is working on the implementation of its action plan adopted in November 2000 (4) on combating counterfeiting and piracy in the single market. A key element of the action plan was the presentation in January 2003 of a Proposal for a Directive (5) that aims at the harmonisation of the measures and procedures necessary to ensure the enforcement of intellectual property (IP) rights within the internal market. The Proposal covers infringements of all intellectual property rights which have been harmonised within the Union, including trade marks and copyrights. The proposed measures include, inter alia, injunctions to halt the sale of counterfeit or pirated goods, provisional measures such as precautionary freezing of suspected offenders' bank accounts, evidence-gathering powers for judicial authorities and powers to force offenders to pay damages to right holders to compensate for lost income. It also requires Member States to ensure that all serious infringements of intellectual property rights are treated as a criminal offence to which criminal sanctions may be applied. Member States remain free to adopt or maintain in their legal order measures which are more favourable for right holders. The Commission believes that once the Council and the Parliament have formally adopted the Directive, the Community will be in the possession of an important and efficient instrument in the fight against piracy and counterfeiting in an enlarged Union. The Commission also intends to propose an initiative in 2004 with a view to adopting a framework decision to strengthen the penal framework for combating counterfeiting. The purpose of this initiative will be to set minimum thresholds for prison sentences incurred for counterfeiting offences, particularly when these are committed in connection with organised crime. In addition, the aim is to achieve an optimum level of police and judicial cooperation in this field. The Commission would like to clarify that the ‘CE’ marking is not a quality marking. The ‘CE’ marking (which stands for ‘conformità europea’) indicates that a product complies with the requirements of relevant Community technical Directives (so called New Approach Directives) and that relevant prescribed conformity assessment procedures to verify compliance have been carried out. According to those Directives, it is then up to the Member States' market surveillance authorities to verify that this is really the case and, where necessary, either to restrict or forbid the placing on the market of non-compliant products or to withdraw them from the market (see also Council Decision 93/465/EEC of 22 July 1993 (6) concerning the modules for the various phases of the conformity assessment procedures and the rules for the affixing and use of the CE conformity marking and Council Directive 92/59/EEC of 29 June 1992, on general product safety (7)). The Communication from the Commission to the Council and the Parliament ‘Enhancing the Implementation of the New Approach Directives’ of 7 May 2003 (8), while reaffirming the Member States' responsibility for market surveillance, calls for an improved level of market surveillance through reinforced administrative co-operation between Member States' market surveillance authorities. Furthermore, the Community has already adopted measures in order to ensure that consumers do not confuse national or private quality labels with other indications that are protected on the basis of Community legislation. Labelling, indications and advertising are for example subject to general rules laid down in Community legislation such as the Directive on misleading and comparative advertising (Council Directive 84/450/EEC of 10 September 1984 (9), as amended by Directive 97/55/EC of the Parliament and of the Council, of 6 October 1997 (10)). The Commission's proposal for a Directive on unfair business-to-consumer commercial practices (11) also includes a provision which would specifically prohibit any marketing, including advertising, which is likely to distort consumers' decisions by creating confusion with any products, trade marks, trade names and other distinguishing marks of a competitor.