Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights
Date: 2003-07-22
Institutions: Council of the European Union
Subjects: customs regulations, fraud, free movement of goods, illicit trade, industrial counterfeiting

2.8.2003

EN

Official Journal of the European Union

L 196/7

COUNCIL REGULATION (EC) No 1383/2003

of 22 July 2003

concerning customs action against goods suspected of infringing certain intellectual property
rights and the measures to be taken against goods found to have infringed such rights

THE COUNCIL OF THE EUROPEAN UNION,

(5)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 133 thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

(3)

(4)

(6)

(7)

(8)

(9)

To improve the working of the system concerning the
entry into the Community and the export and re-export
from the Community of goods infringing certain intellec-
tual property rights introduced by Council Regulation
(EC) No 3295/94 of 22 December 1994 laying down
measures to prohibit
the release for free circulation,
export, re-export or entry for a suspensive procedure of
counterfeit and pirated goods (1), conclusions should be
drawn from experience of its application. In the interests
of clarity, Regulation (EC) No 3295/94 should be
repealed and replaced.

The marketing of counterfeit and pirated goods, and
indeed all goods infringing intellectual property rights,
does considerable damage to law-abiding manufacturers
and traders and to right-holders, as well as deceiving and
in some cases endangering the health and safety of
consumers. Such goods should, in so far as is possible,
be kept off the market and measures adopted to deal
effectively with this unlawful activity without impeding
the freedom of legitimate trade. This objective is consis-
tent with efforts under way at international level.

In cases where counterfeit goods, pirated goods and,
more generally, goods infringing an intellectual property
right originate in or come from third countries, their
introduction into the Community customs territory,
including their transhipment, release for free circulation
in the Community, placing under a suspensive procedure
and placing in a free zone or warehouse, should be
prohibited and a procedure set up to enable the customs
authorities to enforce this prohibition as effectively as
possible.

Customs authorities should also be able to take action
against counterfeit goods, pirated goods and goods
infringing certain intellectual property rights which are
in the process of being exported, re-exported or leaving
the Community customs territory.

(10)

(1) OJ L 341, 30.12.1994, p. 8. Regulation as last amended by Regula-

tion (EC) No 806/2003 (OJ L 122, 16.5.2003, p. 1).

Action by the customs authorities should involve, for
the period necessary to determine whether suspect goods
are indeed counterfeit goods, pirated goods or goods
infringing certain intellectual property rights, suspending
release for free circulation, export and re-export or, in
the case of goods placed under a suspensive procedure,
placed in a free zone or a free warehouse, in the process
of being re-exported with notification, introduced into
the customs territory or leaving that territory, detaining
those goods.

The particulars of the application for action, such as its
period of validity and form, need to be defined and
harmonised in all Member States. The same applies to
the conditions governing the acceptance of applications
by the customs authorities and the service designated to
receive, process and register them.

Even where no application has yet been lodged or
approved, the Member States should be authorised to
detain the goods for a certain period to allow right-
holders to lodge an application for action with the
customs authorities.

Proceedings initiated to determine whether an intellec-
tual property right has been infringed under national
law will be conducted with reference to the criteria used
to establish whether goods produced in that Member
State infringe intellectual property rights. This Regula-
tion does not affect the Member States' provisions on
the competence of the courts or judicial procedures.

To make the Regulation easier to apply for customs
administrations and right-holders alike, provision should
also be made for a more flexible procedure allowing
goods infringing certain intellectual property rights to be
destroyed without there being any obligation to initiate
proceedings to establish whether an intellectual property
right has been infringed under national law.

It is necessary to lay down the measures applicable to
goods which have been found to be counterfeit, pirated
or generally to infringe certain intellectual property
rights. Those measures should not only deprive those
responsible for trading in such goods of the economic
benefits of the transaction and penalise them but should
also constitute an effective deterrent to further transac-
tions of the same kind.

L 196/8

EN

Official Journal of the European Union

2.8.2003

(11)

(12)

(13)

(14)

it

To avoid disrupting the clearance of goods carried in
is appropriate, except
travellers' personal baggage,
where certain material
indications suggest commercial
traffic is involved, to exclude from the scope of this
Regulation goods that may be counterfeit, pirated or
rights when
infringe
imported from third countries within the limits of the
duty-free allowance accorded by Community rules.

certain intellectual property

it is
In the interests of this Regulation's effectiveness,
important
the
to ensure the uniform application of
common rules it lays down and to reinforce mutual
assistance between the Member States and between the
Member States and the Commission,
in particular by
recourse to Council Regulation (EC) No 515/97 of 13
March 1997 on mutual assistance between the adminis-
trative authorities of the Member States and cooperation
between the latter and the Commission to ensure the
correct application of the law on customs and agricul-
tural matters (1).

In the light of the experience gained in the implementa-
tion of this Regulation, inter alia, consideration should be
given to the possibility of increasing the number of intel-
lectual property rights covered.

The measures necessary for the implementation of this
Regulation should be adopted in accordance with
Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing
powers conferred on the Commission (2).

(15)

Regulation (EC) No 3295/94 should be repealed,

HAS ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER AND SCOPE

Article 1

(b) when they are found during checks on goods entering or
leaving the Community customs territory in accordance
with Articles 37 and 183 of Regulation (EEC) No 2913/92,
placed under a suspensive procedure within the meaning of
Article 84(1)(a) of that Regulation, in the process of being
re-exported subject to notification under Article 182(2) of
that Regulation or placed in a free zone or free warehouse
within the meaning of Article 166 of that Regulation.

2.
This Regulation also fixes the measures to be taken by
the competent authorities when the goods referred to in para-
graph 1 are found to infringe intellectual property rights.

Article 2

For the purposes of this Regulation, ‘goods infringing an

1.
intellectual property right’ means:

(a) ‘counterfeit goods’, namely:

(i) goods, including packaging, bearing without authorisa-
to the trademark validly
tion a trademark identical
registered in respect of the same type of goods, or
which cannot be distinguished in its essential aspects
from such a trademark, and which thereby infringes
the trademark-holder's rights under Community law, as
provided for by Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trademark (4)
or the law of the Member State in which the applica-
tion for action by the customs authorities is made;

(ii) any trademark symbol (including a logo, label, sticker,
brochure, instructions for use or guarantee document
bearing such a symbol), even if presented separately,
on the same conditions as the goods referred to in
point (i);

(iii) packaging materials bearing the trademarks of counter-
feit goods, presented separately, on the same condi-
tions as the goods referred to in point (i);

1.
This Regulation sets out the conditions for action by the
customs authorities when goods are suspected of infringing an
intellectual property right in the following situations:

(a) when they are entered for release for free circulation,
export or re-export
in accordance with Article 61 of
Council Regulation (EC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (3);

(1) OJ L 82, 22.3.1997, p. 1. Regulation as last amended by Regulation

(EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).

(2) OJ L 184, 17.7.1999, p. 23.
(3) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by Regula-
tion (EC) No 2700/2000, of the European Parliament and of the
Council (OJ L 311, 12.12.2000, p. 17).

(b) ‘pirated goods’, namely goods which are or contain copies
made without the consent of the holder of a copyright or
related right or design right, regardless of whether it is
registered in national law, or of a person authorised by the
right-holder in the country of production in cases where
the making of those copies would constitute an infringe-
ment of that right under Council Regulation (EC) No 6/
2002 of 12 December 2001 on Community designs (5) or
the law of the Member State in which the application for
customs action is made;

(4) OJ L 11, 14.01.1994, p. 1. Regulation as last amended by Regula-

tion (EC) No 807/2003.
(5) OJ L 3, 5.1.2002, p. 1.

2.8.2003

EN

Official Journal of the European Union

L 196/9

(c) goods which, in the Member State in which the application

for customs action is made, infringe:

(i) a patent under that Member State's law;

(ii) a supplementary protection certificate of

the kind
provided for in Council Regulation (EEC) No 1768/
92 (1) or Regulation (EC) No 1610/96 of the European
Parliament and of the Council (2);

(iii) a national plant variety right under the law of that
Member State or a Community plant variety right of
the kind provided for in Council Regulation (EC) No
2100/94 (3);

(iv) designations of origin or geographical

indications
under the law of that Member State or Council Regula-
tions (EEC) No 2081/92 (4) and (EC) No 1493/1999 (5);

(v) geographical designations of the kind provided for in

Council Regulation (EEC) No 1576/89 (6).

2.

For the purposes of this Regulation, ‘right-holder’ means:

(a) the holder of a trademark, copyright or related right, design
right, patent, supplementary protection certificate, plant
variety right, protected designation of origin, protected
indication and, more generally, any right
geographical
referred to in paragraph 1; or

(b) any other person authorised to use any of the intellectual
property rights mentioned in point (a), or a representative
of the right-holder or authorised user.

3.
Any mould or matrix which is specifically designed or
adapted for the manufacture of goods infringing an intellectual
property right shall be treated as goods of that kind if the use
of such moulds or matrices infringes the right-holder's rights
under Community law or the law of the Member State in
which the application for action by the customs authorities is
made.

Article 3

This Regulation shall not apply to goods bearing a trade-
1.
mark with the consent of the holder of that trademark or to
goods bearing a protected designation of origin or a protected
geographical indication or which are protected by a patent or a
supplementary protection certificate, by a copyright or related
right or by a design right or a plant variety right and which
have been manufactured with the consent of the right-holder
but are placed in one of the situations referred to in Article
1(1) without the latter's consent.

It shall similarly not apply to goods referred to in the first
subparagraph and which have been manufactured or are
protected by another intellectual property right referred to in
Article 2(1) under conditions other than those agreed with the
right-holder.

(1) OJ L 182, 2.7.1992, p. 1.
(2) OJ L 198, 8.8.1996, p. 30.
(3) OJ L 227, 1.9.1994, p. 1. Regulation as last amended by Regulation

(EC) No 807/2003.

(4) OJ L 208, 24.7.1992, p. 1. Regulation as last amended by Regula-

tion (EC) No 806/2003.

(5) OJ L 179, 14.7.1999, p. 1. Regulation as last amended by Regula-

tion (EC) No 806/2003.

(6) OJ L 160, 12.6.1989, p. 1. Regulation as last amended by Regula-
the

the European Parliament and of

tion (EC) No 3378/94 of
Council (OJ L 366, 31.12.1994, p. 1).

2. Where a traveller's personal baggage contains goods of a
non-commercial nature within the limits of the duty-free allow-
ance and there are no material indications to suggest the goods
are part of commercial traffic, Member States shall consider
such goods to be outside the scope of this Regulation.

CHAPTER II

APPLICATIONS

FOR

ACTION
AUTHORITIES

BY

THE

CUSTOMS

Se c ti on 1

Measures prior to an application for action by the customs
authorities

Article 4

1. Where the customs authorities, in the course of action in
one of the situations referred to in Article 1(1) and before an
application has been lodged by a right-holder or granted, have
sufficient grounds for suspecting that goods infringe an intellec-
tual property right, they may suspend the release of the goods
or detain them for a period of three working days from the
moment of receipt of the notification by the right-holder and
by the declarant or holder of the goods, if the latter are known,
in order to enable the right-holder to submit an application for
action in accordance with Article 5.

2.
In accordance with the rules in force in the Member State
concerned, the customs authorities may, without divulging any
information other than the actual or supposed number of items
and their nature and before informing the right-holder of the
possible infringement, ask the right-holder to provide them
with any information they may need to confirm their suspi-
cions.

Se c ti on 2

The lodging and processing of applications for customs
action

Article 5

In each Member State a right-holder may apply in writing
1.
to the competent customs department
for action by the
customs authorities when goods are found in one of the situa-
tions referred to in Article 1(1) (application for action).

L 196/10

EN

Official Journal of the European Union

2.8.2003

Each Member State shall designate the customs depart-
2.
ment competent to receive and process applications for action.

3. Where electronic data interchange systems exist,
the
Member States shall encourage right-holders to lodge applica-
tions electronically.

4. Where the applicant is the right-holder of a Community
trademark or a Community design right, a Community plant
variety right or a designation of origin or geographical indica-
tion or a geographical designation protected by the Commu-
nity, an application may, in addition to requesting action by
the customs authorities of the Member State in which it is
lodged, request action by the customs authorities of one or
more other Member States.

5.
The application for action shall be made out on a form
established in accordance with the procedure referred to in
it must contain all the information needed to
Article 21(2);
enable the goods in question to be readily recognised by the
customs authorities, and in particular:

(i) an accurate and detailed technical description of the goods;

(ii) any specific

information the

right-holder may have

concerning the type or pattern of fraud;

(iii) the name and address of the contact person appointed by

the right-holder.

On receiving an application for action, the competent
7.
customs department shall process that application and notify
the applicant in writing of its decision within 30 working days
of its receipt.

The right-holder shall not be charged a fee to cover the admin-
istrative costs occasioned by the processing of the application.

8. Where the application does not contain the mandatory
the competent customs
information listed in paragraph 5,
department may decide not
to process the application for
action; in that event it shall provide reasons for its decision and
include information on the appeal procedure. The application
can only be re-submitted when duly completed.

Article 6

Applications

1.
for action shall be accompanied by a
declaration from the right-holder, which may be submitted
either in writing or electronically, in accordance with national
legislation, accepting liability towards the persons involved in a
situation referred to in Article 1(1) in the event that a proce-
dure initiated pursuant to Article 9(1) is discontinued owing to
an act or omission by the right-holder or in the event that the
goods in question are subsequently found not to infringe an
intellectual property right.

The application for action must also contain the declaration
required of the applicant by Article 6 and proof that the appli-
cant holds the right for the goods in question.

In that declaration the right-holder shall also agree to bear all
costs incurred under this Regulation in keeping goods under
customs control pursuant to Article 9 and, where applicable,
Article 11.

In the situation described in paragraph 4 the application for
action shall
indicate the Member State or States in which
customs action is requested as well as the names and addresses
of the right-holder in each of the Member States concerned.

By way of indication and where known, right-holders should
also forward any other information they may have, such as:

(a) the pre-tax value of the original goods on the legitimate
market in the country in which the application for action is
lodged;

(b) the location of the goods or their intended destination;

(c) particulars identifying the consignment or packages;

(d) the scheduled arrival or departure date of the goods;

2. Where an application is submitted under Article 5(4), the
right-holder shall agree in the declaration to provide and pay
for any translation necessary; this declaration shall be valid in
every Member State in which the decision granting the applica-
tion applies.

Article 7

Articles 5 and 6 shall apply mutatis mutandis to requests for an
extension.

Se c ti on 3

(e) the means of transport used;

Acceptance of the application for action

(f) the identity of the importer, exporter or holder of the

goods;

(g) the country or countries of production and the routes used

by traffickers;

(h) the technical differences, if known, between the authentic

and suspect goods.

6.
Details may also be required which are specific to the
type of intellectual property right referred to in the application
for action.

Article 8

1. When granting an application for action, the competent
customs department shall specify the period during which the
customs authorities are to take action. That period shall not
exceed one year. On expiry of the period in question, and
subject to the prior discharge of any debt owed by the right-
holder under this Regulation, the department which took the
initial decision may, at the right-holder's request, extend that
period.

2.8.2003

EN

Official Journal of the European Union

L 196/11

The right-holder shall notify the competent customs depart-
ment referred to in Article 5(2), if his right ceases to be validly
registered or expires.

1(1) are suspected of infringing an intellectual property right
covered by that decision, it shall suspend release of the goods
or detain them.

The decision granting the right-holder's application for
2.
action shall immediately be forwarded to those customs offices
of the Member State or States likely to be concerned by the
goods alleged in the application to infringe an intellectual prop-
erty right.

When an application for action submitted in accordance with
Article 5(4) is granted, the period during which the customs
authorities are to take action shall be set at one year; on expiry
of the period in question, the department which processed the
initial application shall, on the right-holder's written applica-
tion, extend that period. The first indent of Article 250 of
Regulation (EEC) No 2913/92 shall apply mutatis mutandis to
the decision granting that application and to decisions
extending or repealing it.

Where an application for action is granted, it is for the appli-
cant to forward that decision, with any other information and
to the competent
any translations that may be necessary,
customs department of the Member State or States in which
the applicant has requested customs action. However, with the
applicant's consent, the decision may be forwarded directly by
the customs department which has taken the decision.

At the request of the customs authorities of the Member States
concerned, the applicant shall provide any additional informa-
tion necessary for the implementation of the decision.

3.
The period referred to in the second subparagraph of
paragraph 2 shall run from the date of adoption of the decision
granting the application. The decision will not enter into force
it has been
in the recipient Member State or States until
forwarded in accordance with the third subparagraph of para-
graph 2 and the right-holder has fulfilled the formalities
referred to in Article 6.

The decision shall then be sent immediately to the national
customs offices likely to have to deal with the goods suspected
of infringing intellectual property rights.

This paragraph shall apply mutatis mutandis
extending the initial decision.

to a decision

CHAPTER III

CONDITIONS GOVERNING ACTION BY THE CUSTOMS
AUTHORITIES AND BY THE AUTHORITY COMPETENT TO
DECIDE ON THE CASE

Article 9

The customs office shall
customs department which processed the application.

immediately inform the competent

The competent customs department or customs office
2.
referred to in paragraph 1 shall inform the right-holder and the
declarant or holder of the goods within the meaning of Article
38 of Regulation (EEC) No 2913/92 of
its action and is
authorised to inform them of the actual or estimated quantity
and the actual or supposed nature of the goods whose release
has been suspended or which have been detained, without
being bound by the communication of that information to
notify the authority competent to take a substantive decision.

3. With a view to establishing whether an intellectual prop-
erty right has been infringed under national law, and in accor-
dance with national provisions on the protection of personal
data, commercial and industrial secrecy and professional and
administrative confidentiality, the customs office or department
which processed the application shall inform the right-holder,
at his request and if known, of the names and addresses of the
consignee, the consignor, the declarant or the holder of the
goods and the origin and provenance of goods suspected of
infringing an intellectual property right.

The customs office shall give the applicant and the persons
involved in any of the situations referred to in Article 1(1) the
opportunity to inspect goods whose release has been suspended
or which have been detained.

When examining goods, the customs office may take samples
and, according to the rules in force in the Member State
concerned, hand them over or send them to the right-holder, at
his express request, strictly for the purposes of analysis and to
facilitate the subsequent procedure. Where circumstances allow,
subject to the requirements of Article 11(1) second indent
where applicable, samples must be returned on completion of
the technical analysis and, where applicable, before goods are
released or their detention is ended. Any analysis of these
samples shall be carried out under the sole responsibility of the
right-holder.

Article 10

The law in force in the Member State within the territory of
which the goods are placed in one of the situations referred to
in Article 1(1) shall apply when deciding whether an intellec-
tual property right has been infringed under national law.

1. Where a customs office to which the decision granting an
application by the right-holder has been forwarded pursuant to
Article 8 is satisfied, after consulting the applicant where neces-
sary, that goods in one of the situations referred to in Article

That law shall also apply to the immediate notification of the
customs department or office referred to in Article 9(1) that
the procedure provided for in Article 13 has been initiated,
unless the procedure was initiated by that department or office.

L 196/12

EN

Official Journal of the European Union

2.8.2003

Article 11

Article 13

in one of

1. Where customs authorities have detained or suspended
the release of goods which are suspected of infringing an intel-
the situations covered by
lectual property right
Article 1(1), the Member States may provide,
in accordance
with their national legislation, for a simplified procedure, to be
used with the right-holder's agreement, which enables customs
authorities to have such goods abandoned for destruction
under customs control, without there being any need to deter-
mine whether an intellectual property right has been infringed
under national law. To this end, Member States shall, in accor-
dance with their national legislation, apply the following condi-
tions:

— that

the right-holder inform the customs authorities in
writing within 10 working days, or three working days in
the case of perishable goods, of receipt of the notification
provided for in Article 9, that the goods concerned by the
procedure infringe an intellectual property right referred to
in Article 2(1) and provide those authorities with the
written agreement of the declarant, the holder or the owner
of the goods to abandon the goods for destruction. With
the agreement of the customs authorities, this information
may be provided directly to customs by the declarant, the
holder or the owner of the goods. This agreement shall be
presumed to be accepted when the declarant, the holder or
the owner of
the goods has not specifically opposed
destruction within the prescribed period. This period may
be extended by a further ten working days where circum-
stances warrant it;

— that destruction be carried out, unless otherwise specified in
national legislation, at the expense and under the responsi-
bility of the right-holder, and be systematically preceded by
the taking of samples for keeping by the customs authori-
ties in such conditions that they constitute evidence admis-
sible in legal proceedings in the Member State in which
they might be needed.

2.
In all other cases, for example where the declarant, holder
or owner objects to or contests the destruction of the goods,
the procedure laid down in Article 13 shall apply.

Article 12

A right-holder
receiving the particulars cited in the first
subparagraph of Article 9(3) shall use that information only for
the purposes specified in Articles 10, 11 and 13(1).

Any other use, not permitted by the national legislation of the
Member State where the situation arose, may, on the basis of
the law of the Member State in which the goods in question
are located, cause the right-holder to incur civil liability and
lead to the suspension of the application for action, for the
period of validity remaining before renewal,
in the Member
State in which the events have taken place.

In the event of a further breach of this rule, the competent
customs department may refuse to renew the application. In
the case of an application of the kind provided for in Article
5(4), it must also notify the other Member States indicated on
the form.

1.
If, within 10 working days of receipt of the notification
of suspension of release or of detention, the customs office
referred to in Article 9(1) has not been notified that proceed-
ings have been initiated to determine whether an intellectual
property right has been infringed under national law in accor-
dance with Article 10 or has not received the right-holder's
agreement provided for in Article 11(1 ) where applicable,
release of the goods shall be granted, or their detention shall be
ended, as appropriate, subject to completion of all customs
formalities.

This period may be extended by a maximum of 10 working
days in appropriate cases.

2.
In the case of perishable goods suspected of infringing an
intellectual property right, the period referred to in paragraph
1 shall be three working days. That period may not be
extended.

Article 14

In the case of goods suspected of infringing design rights,
1.
patents, supplementary protection certificates or plant variety
rights, the declarant, owner, importer, holder or consignee of
the goods shall be able to obtain the release of the goods or an
end to their detention on provision of a security, provided that:

(a) the customs office or department referred to in Article 9(1)
has been notified, in accordance with Article 13(1), that a
procedure has been initiated within the period provided for
in Article 13(1) to establish whether an intellectual prop-
erty right has been infringed under national law;

(b) the

authority empowered for

this purpose has not
authorised precautionary measures before the expiry of the
time limit laid down in Article 13(1);

(c) all customs formalities have been completed.

The security provided for in paragraph 1 must be suffi-

2.
cient to protect the interests of the right-holder.

Payment of the security shall not affect the other legal remedies
available to the right-holder.

Where the procedure to determine whether an intellectual
property right has been infringed under national law has been
initiated other than on the initiative of the holder of a design
right, patent, supplementary protection certificate or plant
variety right, the security shall be released if the person initi-
ating the said procedure does not exercise his right to institute
legal proceedings within 20 working days of the date on which
he receives notification of the suspension of release or deten-
tion.

Where the second subparagraph of Article 13(1) applies, this
period may be extended to a maximum of 30 working days.

2.8.2003

EN

Official Journal of the European Union

L 196/13

Article 15

The conditions of storage of the goods during the period of
suspension of release or detention shall be determined by each
Member State but shall not give rise to costs for the customs
administrations.

CHAPTER V

PENALTIES

Article 18

CHAPTER IV

PROVISIONS APPLICABLE TO GOODS FOUND TO INFRINGE
AN INTELLECTUAL PROPERTY RIGHT

Each Member State shall introduce penalties to apply in cases
of violation of this Regulation. Such penalties must be effective,
proportionate and dissuasive.

Article 16

Goods found to infringe an intellectual property right at the
end of the procedure provided for in Article 9 shall not be:

CHAPTER VI

LIABILITY OF THE CUSTOMS AUTHORITIES AND THE
RIGHT-HOLDER

— allowed to enter into the Community customs territory,

Article 19

— released for free circulation,

— removed from the Community customs territory,

— exported,

— re-exported,

— placed under a suspensive procedure or

— placed in a free zone or free warehouse.

Article 17

1. Without prejudice to the other legal remedies open to the
right-holder, Member States shall adopt the measures necessary
to allow the competent authorities:

(a) in accordance with the relevant provisions of national law,
to destroy goods found to infringe an intellectual property
right or dispose of them outside commercial channels in
such a way as to preclude injury to the right-holder,
without compensation of any sort and, unless otherwise
specified in national legislation, at no cost to the exche-
quer;

(b) to take, in respect of such goods, any other measures effec-
tively depriving the persons concerned of any economic
gains from the transaction.

Save in exceptional cases, simply removing the trademarks
which have been affixed to counterfeit goods without
authorisation shall not be regarded as effectively depriving
the persons concerned of any economic gains from the
transaction.

1.
Save as provided by the law of the Member State in
which an application is lodged or, in the case of an application
under Article 5(4), by the law of the Member State in which
goods infringing an intellectual property right are not detected
by a customs office, the acceptance of an application shall not
entitle the right-holder to compensation in the event that such
goods are not detected by a customs office and are released or
no action is taken to detain them in accordance with Article
9(1).

2.
The exercise by a customs office or by another duly
empowered authority of the powers conferred on them in
order to fight against goods infringing an intellectual property
right shall not render them liable towards the persons involved
in the situations referred to in Article 1(1) or the persons
affected by the measures provided for in Article 4 for damages
suffered by them as a result of the authority's intervention,
except where provided for by the law of the Member State in
which the application is made or, in the case of an application
under Article 5(4), by the law of the Member State in which
loss or damage is incurred.

3.
A right-holder's civil liability shall be governed by the law
of the Member State in which the goods in question were
placed in one of the situations referred to in Article 1(1).

CHAPTER VII

FINAL PROVISIONS

Article 20

2.
Goods found to infringe an intellectual property right
may be forfeited to the exchequer. In that event, paragraph 1(a)
shall apply.

The measures necessary for the application of this Regulation
shall be adopted in accordance with the procedure referred to
in Article 21(2).

L 196/14

EN

Official Journal of the European Union

2.8.2003

Article 21

Article 23

The Commission shall be assisted by the Customs Code

1.
Committee.

2. Where reference is made to this paragraph, Articles 4 and
7 of Decision 1999/468/EC shall apply.

The period laid down in Article 4(3) of Decision 1999/468/EC
shall be set at three months.

Article 22

Member States shall communicate all relevant information on
the application of this Regulation to the Commission.

The Commission shall forward this information to the other
Member States.

The provisions of Regulation (EC) No 515/97 shall apply
mutatis mutandis.

The details of the information procedure shall be drawn up
under the implementing provisions in accordance with the
procedure referred to in Article 21(2).

On the basis of the information referred to in Article 22, the
Commission shall report annually to the Council on the appli-
cation of this Regulation. This report may, where appropriate,
be accompanied by a proposal to amend the Regulation.

Article 24

Regulation (EC) No 3295/94 is repealed with effect from 1 July
2004.

References to the repealed Regulation shall be construed as
references to this Regulation.

Article 25

This Regulation shall enter into force on the seventh day
following that of its publication in the Official Journal of the
European Union.

It shall apply with effect from 1 July 2004.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 July 2003.

For the Council

The President

G. ALEMANNO