WRITTEN QUESTION E-2932/03 by Cristiana Muscardini (UEN) to the Commission. Combating counterfeiting.
Date: 2003-10-06
Institutions: European Parliament, Provisional data
Subjects: European standard, approximation of laws, computer piracy, consumer protection, fraud, impact study, industrial counterfeiting, intellectual property, product quality, trade mark

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Answer given by Mr Patten on behalf of the Commission

(13 November 2003)

The Commission is aware of the appointment referred to by the Honourable Members.

As the Commission has already made clear in its reply to written question E-2554/03 by Mr. Cappato (1)
on the World Summit on the Information Society (WSIS) several factors need to be borne in mind.

First, holding the second session of the WSIS summit in Tunisia is a decision taken by the United Nations’
General Assembly (UNGA) and therefore has only indirectly involved the Commission.

Second, the fact the summit will be held along the Johannesburg model implies a range of positive side
effects likely to benefit Tunisian civil society: a whole range of different actors will be involved in the
preparation phase as well as in the summit itself.

Third, the Commission, in its communication (2) to the Council and the Parliament ‘Towards a Global
Partnership in the Information society: EU perspective in the context of the UN World Summit on the
Information Society’ points out that the following principles need to be solemnly ‘upheld and extended
within the information society: The right of freedom of opinion and expression in accordance with the
provisions of the UN Universal Declaration of Human Rights’. This will also be its approach with Tunisia.

In so far as the appointment of general Ammar is more than an internal Tunisian matter, the organisation
of the WSIS Depends on the UNGA and its members.

However, the Commission will follow the situation, and if opportune, open the dialogue with Tunisian
Authorities in close co-operation with the Member States.

(1) OJ C 65 E, 13.3.2004, p. 175.
(2) COM(2003) 271 final.

(2004/C 70 E/176)

WRITTEN QUESTION E-2932/03

by Cristiana Muscardini (UEN) to the Commission

(6 October 2003)

Subject: Combating counterfeiting

Counterfeiting is now reaching intolerable levels. According to a study conducted by the American
Chamber of Commerce in Italy with the cooperation of KPMG, it is having an extremely damaging impact
on Italian companies and government revenues. The annual losses for companies are currently estimated at
EUR 8 billion, with the annual shortfall in tax revenues standing at close to EUR 3 billion. Many of the
companies affected are Italian, but a large number of them are European or American. The latter in
particular operate in high-technology sectors. The effects are being felt not just by companies, as it might
seem at first glance, but also by the Italian economy, since counterfeiting, in the same way as piracy, acts
as a major disincentive to investment in Italy. It is common knowledge that the market sectors hardest hit
by counterfeiting are the audiovisual, pay TV, music, software, video games, fashion, book, clock-making,
sports goods, domestic goods, alcohol and toy sectors.

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Given this situation, which is most probably much the same in other industrialised countries in Europe,
would the Commission not agree that:

1.

it should conduct an in-depth analysis of counterfeiting in all EU Member States with a view to
quantifying the damage to companies and tax revenues?

2.

it should take steps aimed at putting forward common measures to:

(cid:1) protect original products and, thereby, trade marks and copyright?

(cid:1) closely monitor products bearing quality labels (such as EC) in order to ensure that consumers do

not confuse them with the EU’s own quality labels?

3.

the proposal for a directive on measures and procedures to ensure the enforcement of intellectual
property rights (2003/2004 (COD)) of 30 January 2003 is totally incapable of tackling an enormous
increase in counterfeiting in an enlarged Europe?

Answer given by Mr Bolkestein on behalf of the Commission

(25 November 2003)

1.
The Commission has taken note of the study on counterfeiting conducted by the American Chamber
of Commerce in Italy. The tendency reflected in the study coincides with previous statistics on estimated
damages that have been published at national, European and international level. Independent studies show
that ever-increasing harm is being done to business (lower level of investment, closure of small and
medium-sized enterprises SMEs)), society (job losses, consumer safety, threat to creativity) and governments
(loss of tax revenue) because of increasing counterfeiting and piracy.

In order to combat this type of fraud more effectively, some years ago the Commission set up an annual
study aimed at qualifying and quantifying these practices at the EU’s external borders. Each year, the
Commission does in fact publish almost 70 pages of statistics on actions taken by the EU customs
authorities to combat counterfeiting and piracy. Information on the nature of the counterfeit products,
their origin, the means of transport used and the value of these goods on the internal market are all
analysed in order to gain a better understanding of this international fraud.

As counterfeit and pirated goods fall outside the mainstream economy,
it is by definition difficult to
produce exact and objective figures on these activities within the internal market. In 2002, a study was
published, commissioned by the Commission, which developed and recommended efficient methods of
research for collecting, analysing and comparing data on counterfeiting and piracy (1). Member States and
private organisations can use the method developed in the study to measure the incidence in a range of
different product sectors.

The fight against counterfeiting and piracy is one of the priorities for the Commission which is
2. and 3.
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

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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
(see also Council Decision 93/465/EEC of 22 July 1993 (6)
or to withdraw them from the market
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)).

‘Enhancing the
The Communication from the Commission to the Council and the Parliament
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.

(1) http://europa.eu.int/comm/internal_market/en/indprop/piracy/index.htm
(2) COM(2003) 20 final.
(3) 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, OJ L 196, 2.8.2003.

(4) COM(2000) 789 final.
(5) COM(2003) 46 final.
(6) OJ L 220, 30.8.1993.
(7) OJ L 228, 11.8.1992.
(8) COM(2003) 240 final.
(9) OJ L 250, 19.9.1984.
(10) OJ L 290, 23.10.1997.
(11) COM(2003) 356 final.