DIRECTIVE 2004/48/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 on the enforcement of intellectual property rights (Text with EEA relevance)
Date: 2004-04-29
Institutions: Council of the European Union, European Parliament
Subjects: TRIPS, industrial property, judicial proceedings, right of action, right to justice

45
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

DIRECTIVE 2004/48/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

of 29 April 2004 

on the enforcement 

of intellectual property rights 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 95 

thereof, 

Having regard to the proposal from the Commission, 

Having regard to the Opinion of the European Economic and Social Committee 1, 

After consulting the Committee of the Regions, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty 2, 

1  
2  

OJ C 32, 5.2.2004, p. 15. 
Opinion of the European Parliament of 9 March 2004 (not yet published in the 
Official Journal) and Council Decision of 26 April 2004. 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
46
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Whereas: 

(1)  The achievement of the Internal Market entails eliminating restrictions on freedom of 

movement and distortions of competition, while creating an environment conducive to 

innovation and investment.  In this context, the protection of intellectual property is an 

essential element for the success of the Internal Market.  The protection of intellectual 

property is important not only for promoting innovation and creativity, but also for 

developing employment and improving competitiveness. 

(2)  The protection of intellectual property should allow the inventor or creator to derive a 

legitimate profit from his invention or creation.  It should also allow the widest possible 

dissemination of works, ideas and new know-how.  At the same time, it should not hamper 

freedom of expression, the free movement of information, or the protection of personal data, 

including on the Internet. 

(3)  However, without effective means of enforcing intellectual property rights, innovation and 

creativity are discouraged and investment diminished.  It is therefore necessary to ensure that 

the substantive law on intellectual property, which is nowadays largely part of the 

acquis communautaire, is applied effectively in the Community.  In this respect, the means of 

enforcing intellectual property rights are of paramount importance for the success of the 

Internal Market. 

 
 
 
 
 
 
47
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(4)  At international level, all Member States, as well as the Community itself as regards matters 

within its competence, are bound by the Agreement on Trade-Related Aspects of Intellectual 

Property (the "TRIPS Agreement"), approved, as part of the multilateral negotiations of the 
Uruguay Round, by Council Decision 94/800/EC 1 and concluded in the framework of the 

World Trade Organisation. 

(5)  The TRIPS Agreement contains, in particular, provisions on the means of enforcing 

intellectual property rights, which are common standards applicable at international level and 

implemented in all Member States.  This Directive should not affect Member States' 

international obligations, including those under the TRIPS Agreement. 

(6)  There are also international conventions to which all Member States are parties and which 

also contain provisions on the means of enforcing intellectual property rights.  These include, 

in particular, the Paris Convention for the Protection of Industrial Property, the 

Berne Convention for the Protection of Literary and Artistic Works, and the 

Rome Convention for the Protection of Performers, Producers of Phonograms and 

Broadcasting Organisations. 

1 

OJ L 336, 23.12.1994, p. 1. 

 
 
 
 
 
                                                 
48
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(7) 

It emerges from the consultations held by the Commission on this question that, in the 

Member States, and despite the TRIPS Agreement, there are still major disparities as regards 

the means of enforcing intellectual property rights.  For instance, the arrangements for 

applying provisional measures, which are used in particular to preserve evidence, the 

calculation of damages, or the arrangements for applying injunctions, vary widely from one 

Member State to another.  In some Member States, there are no measures, procedures and 

remedies such as the right of information and the recall, at the infringer's expense, of the 

infringing goods placed on the market. 

(8)  The disparities between the systems of the Member States as regards the means of enforcing 

intellectual property rights are prejudicial to the proper functioning of the Internal Market and 

make it impossible to ensure that intellectual property rights enjoy an equivalent level of 

protection throughout the Community.  This situation does not promote free movement within 

the Internal Market or create an environment conducive to healthy competition. 

 
 
 
 
49
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(9)  The current disparities also lead to a weakening of the substantive law on intellectual property 

and to a fragmentation of the Internal Market in this field.  This causes a loss of confidence in 

the Internal Market in business circles, with a consequent reduction in investment in 

innovation and creation.  Infringements of intellectual property rights appear to be 

increasingly linked to organised crime.  Increasing use of the Internet enables pirated products 

to be distributed instantly around the globe.  Effective enforcement of the substantive law on 

intellectual property should be ensured by specific action at Community level.  

Approximation of the legislation of the Member States in this field is therefore an essential 

prerequisite for the proper functioning of the Internal Market. 

(10)  The objective of this Directive is to approximate legislative systems so as to ensure a high, 

equivalent and homogeneous level of protection in the Internal Market.  

(11)  This Directive does not aim to establish harmonised rules for judicial cooperation, 

jurisdiction, the recognition and enforcement of decisions in civil and commercial matters, or 

deal with applicable law.  There are Community instruments which govern such matters in 

general terms and are, in principle, equally applicable to intellectual property. 

 
 
 
 
 
50
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(12)  This Directive should not affect the application of the rules of competition, and in particular 

Articles 81 and 82 of the Treaty.  The measures provided for in this Directive should not be 

used to restrict unduly competition in a manner contrary to the Treaty. 

(13)  It is necessary to define the scope of this Directive as widely as possible in order to 

encompass all the intellectual property rights covered by Community provisions in this field 

and/or by the national law of the Member State concerned.  Nevertheless, that requirement 

does not affect the possibility, on the part of those Member States which so wish, to extend, 

for internal purposes, the provisions of this Directive to include acts involving unfair 

competition, including parasitic copies, or similar activities.  

(14)  The measures provided for in Articles 6(2), 8(1) and 9(2) need to be applied only in respect of 

acts carried out on a commercial scale.  This is without prejudice to the possibility for 

Member States to apply those measures also in respect of other acts.  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. 

 
 
 
 
 
51
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(15)  This Directive should not affect substantive law on intellectual property, Directive 95/46/EC 

of 24 October 1995 of the European Parliament and of the Council on the protection of 

individuals with regard to the processing of personal data and on the free movement of such 
data 1, Directive 1999/93/EC of the European Parliament and of the Council of 
13 December 1999 on a Community framework for electronic signatures 2 and 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on 

certain legal aspects of information society services, in particular electronic commerce, in the 
Internal Market 3. 

(16)  The provisions of this Directive should be without prejudice to the particular provisions for 

the enforcement of rights and on exceptions in the domain of copyright and related rights set 

out in Community instruments and notably those found in Council Directive 91/250/EEC of  
14 May 1991 on the legal protection of computer programs 4 or in Directive 2001/29/EC of 

the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain 
aspects of copyright and related rights in the information society 5. 

1 

2 
3 
4  

5  

OJ L 281, 23.11.1995, p. 31.  Directive as amended by Regulation (EC) No 1882/2003 
(OJ L 284, 31.10.2003, p. 1). 
OJ L 13, 19.1.2000, p. 12. 
OJ L 178, 17.7.2000, p. 1. 
OJ L 122, 17.5.1991, p. 42.  Directive as amended by Directive 93/98/EEC (OJ L 290, 
24.11.1993, p. 9). 
OJ L 167, 22.6.2001, p. 10. 

 
 
 
 
                                                 
52
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(17)  The measures, procedures and remedies provided for in this Directive should be determined in 

each case in such a manner as to take due account of the specific characteristics of that case, 

including the specific features of each intellectual property right and, where appropriate, the 

intentional or unintentional character of the infringement. 

(18)  The persons entitled to request application of those measures, procedures and remedies should 

be not only the rightholders but also persons who have a direct interest and legal standing in 

so far as permitted by and in accordance with the applicable law, which may include 

professional organisations in charge of the management of those rights or for the defence of 

the collective and individual interests for which they are responsible. 

(19)  Since copyright exists from the creation of a work and does not require formal registration, it 

is appropriate to adopt the rule laid down in Article 15 of the Berne Convention, which 

establishes the presumption whereby the author of a literary or artistic work is regarded as 

such if his name appears on the work.  A similar presumption should be applied to the owners 

of related rights since it is often the holder of a related right, such as a phonogram producer, 

who will seek to defend rights and engage in fighting acts of piracy. 

 
 
 
 
 
53
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(20)  Given that evidence is an element of paramount importance for establishing the infringement 

of intellectual property rights, it is appropriate to ensure that effective means of presenting, 

obtaining and preserving evidence are available.  The procedures should have regard to the 

rights of the defence and provide the necessary guarantees, including the protection of 

confidential information.  For infringements committed on a commercial scale it is also 

important that the courts may order access, where appropriate, to banking, financial or 

commercial documents under the control of the alleged infringer. 

(21)  Other measures designed to ensure a high level of protection exist in certain Member States 

and should be made available in all the Member States.  This is the case with the right of 

information, which allows precise information to be obtained on the origin of the infringing 

goods or services, the distribution channels and the identity of any third parties involved in 

the infringement. 

(22)  It is also essential to provide for provisional measures for the immediate termination of 

infringements, without awaiting a decision on the substance of the case, while observing the 

rights of the defence, ensuring the proportionality of the provisional measures as appropriate 

to the characteristics of the case in question and providing the guarantees needed to cover the 

costs and the injury caused to the defendant by an unjustified request.  Such measures are 

particularly justified where any delay would cause irreparable harm to the holder of an 

intellectual property right. 

 
 
 
 
 
54
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(23)  Without prejudice to any other measures, procedures and remedies available, rightholders 

should have the possibility of applying for an injunction against an intermediary whose 

services are being used by a third party to infringe the rightholder's industrial property right.  

The conditions and procedures relating to such injunctions should be left to the national law 

of the Member States.  As far as infringements of copyright and related rights are concerned, 

a comprehensive level of harmonisation is already provided for in Directive 2001/29/EC.  

Article 8(3) of Directive 2001/29/EC should therefore not be affected by this Directive. 

(24)  Depending on the particular case, and if justified by the circumstances, the measures, 

procedures and remedies to be provided for should include prohibitory measures aimed at 

preventing further infringements of intellectual property rights.  Moreover there should be 

corrective measures, where appropriate at the expense of the infringer, such as the recall and 

definitive removal from the channels of commerce, or destruction, of the infringing goods 

and, in appropriate cases, of the materials and implements principally used in the creation or 

manufacture of these goods.  These corrective measures should take account of the interests of 

third parties including, in particular, consumers and private parties acting in good faith. 

 
 
 
 
55
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(25)  Where an infringement is committed unintentionally and without negligence and where the 

corrective measures or injunctions provided for by this Directive would be disproportionate, 

Member States should have the option of providing for the possibility, in appropriate cases, of 

pecuniary compensation being awarded to the injured party as an alternative measure.  

However, where the commercial use of counterfeit goods or the supply of services would 

constitute an infringement of law other than intellectual property law or would be likely to 

harm consumers, such use or supply should remain prohibited. 

(26)  With a view to compensating for the prejudice suffered as a result of an infringement 

committed by an infringer who engaged in an activity in the knowledge, or with reasonable 

grounds for knowing, that it would give rise to such an infringement, the amount of damages 

awarded to the rightholder should take account of all appropriate aspects, such as loss of 

earnings incurred by the rightholder, or unfair profits made by the infringer and, where 

appropriate, any moral prejudice caused to the rightholder.  As an alternative, for example 

where it would be difficult to determine the amount of the actual prejudice suffered, the 

amount of the damages might be derived from elements such as the royalties or fees which 

would have been due if the infringer had requested authorisation to use the intellectual 

property right in question.  The aim is not to introduce an obligation to provide for punitive 

damages but to allow for compensation based on an objective criterion while taking account 

of the expenses incurred by the rightholder, such as the costs of identification and research. 

 
 
 
 
56
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(27)  To act as a supplementary deterrent to future infringers and to contribute to the awareness of 

the public at large, it is useful to publicise decisions in intellectual property infringement 

cases. 

(28)  In addition to the civil and administrative measures, procedures and remedies provided for 

under this Directive, criminal sanctions also constitute, in appropriate cases, a means of 

ensuring the enforcement of intellectual property rights. 

(29)  Industry should take an active part in the fight against piracy and counterfeiting.  The 

development of codes of conduct in the circles directly affected is a supplementary means of 

bolstering the regulatory framework.  The Member States, in collaboration with the 

Commission, should encourage the development of codes of conduct in general.  Monitoring 

of the manufacture of optical discs, particularly by means of an identification code embedded 

in discs produced in the Community, helps to limit infringements of intellectual property 

rights in this sector, which suffers from piracy on a large scale.  However, these technical 

protection measures should not be misused to protect markets and prevent parallel imports. 

(30)  In order to facilitate the uniform application of this Directive, it is appropriate to provide for 

systems of cooperation and the exchange of information between Member States, on the one 

hand, and between the Member States and the Commission on the other, in particular by 

creating a network of correspondents designated by the Member States and by providing 

regular reports assessing the application of this Directive and the effectiveness of the 

measures taken by the various national bodies. 

 
 
 
 
 
 
57
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(31)  Since, for the reasons already described, the objective of this Directive can best be achieved at 

Community level, the Community may adopt measures, in accordance with the principle of 

subsidiarity as set out in Article 5 of the Treaty.  In accordance with the principle of 

proportionality as set out in that Article, this Directive does not go beyond what is necessary 

in order to achieve that objective. 

(32)  This Directive respects the fundamental rights and observes the principles recognised in 

particular by the Charter of Fundamental Rights of the European Union.  In particular, this 

Directive seeks to ensure full respect for intellectual property, in accordance with 

Article 17(2) of that Charter, 

HAVE ADOPTED THIS DIRECTIVE: 

 
 
 
 
 
58
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

CHAPTER I 

Objective and scope 

Article 1 

Subject-matter 

This Directive concerns the measures, procedures and remedies necessary to ensure the 

enforcement of intellectual property rights.  For the purposes of this Directive, the term "intellectual 

property rights" includes industrial property rights. 

 
 
 
 
 
 
 
59
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 2 

Scope 

1.  Without prejudice to the means which are or may be provided for in Community or national 

legislation, in so far as those means may be more favourable for rightholders, the measures, 

procedures and remedies provided for by this Directive shall apply, in accordance with Article 3, to 

any infringement of intellectual property rights as provided for by Community law and/or by the 

national law of the Member State concerned. 

2. 

This Directive shall be without prejudice to the specific provisions on the enforcement of 

rights and on exceptions contained in Community legislation concerning copyright and rights 

related to copyright, notably those found in Directive 91/250/EEC and, in particular, Article 7 

thereof or in Directive 2001/29/EC and, in particular, Articles 2 to 6 and Article 8  thereof. 

 
 
 
 
 
 
60
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

3. 

This Directive shall not affect: 

(a) 

the Community provisions governing the substantive law on intellectual property, 

Directive 95/46/EC, Directive 1999/93/EC or Directive 2000/31/EC, in general, and 

Articles 12 to 15 of Directive 2000/31/EC in particular; 

(b)  Member States' international obligations and notably the TRIPS Agreement, including those 

relating to criminal procedures and penalties; 

(c) 

any national provisions in Member States relating to criminal procedures or penalties in 

respect of infringement of intellectual property rights. 

 
 
 
 
 
 
61
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

CHAPTER II 

Measures, procedures and remedies  

Section 1 

General provisions 

Article 3 

General obligation 

1.   Member States shall provide for the measures, procedures and remedies necessary to ensure the 

enforcement of the intellectual property rights covered by this Directive.  Those measures, 

procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or 

costly, or entail unreasonable time-limits or unwarranted delays. 

2.  Those measures, procedures and remedies shall also be effective, proportionate and dissuasive 

and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to 

provide for safeguards against their abuse. 

 
 
 
 
 
 
 
 
 
 
62
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 4 

Persons entitled to apply for the application of the measures, procedures and remedies 

1.  Member States shall recognise as persons entitled to seek application of the measures, 

procedures and remedies referred to in this Chapter: 

(a) 

the holders of intellectual property rights, in accordance with the provisions of the applicable 

law, 

(b) 

all other persons authorised to use those rights, in particular licensees, in so far as permitted 

by and in accordance with the provisions of the applicable law, 

(c) 

intellectual property collective rights management bodies which are regularly recognised as 

having a right to represent holders of intellectual property rights, in so far as permitted by and 

in accordance with the provisions of the applicable law, 

(d)  professional defence bodies which are regularly recognised as having a right to represent 

holders of intellectual property rights, in so far as permitted by and in accordance with the 

provisions of the applicable law. 

 
 
 
 
 
 
 
 
 
 
 
63
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 5 

Presumption of authorship or ownership 

For the purposes of applying the measures, procedures and remedies provided for in this Directive, 

(a) 

for the author of a literary or artistic work, in the absence of proof to the contrary, to be 

regarded as such, and consequently to be entitled to institute infringement proceedings, it shall 

be sufficient for his name to appear on the work in the usual manner; 

(b) 

the provision under (a) shall apply mutatis mutandis to the holders of rights related to 

copyright with regard to their protected subject matter. 

 
 
 
 
 
 
 
64
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Section 2 

Evidence 

Article 6 

Evidence 

1.  Member States shall ensure that, on application by a party which has presented reasonably 

available evidence sufficient to support its claims, and has, in substantiating those claims, specified 

evidence which lies in the control of the opposing party, the competent judicial authorities may 

order that such evidence be presented by the opposing party, subject to the protection of 

confidential information.  For the purposes of this paragraph, Member States may provide that a 

reasonable sample of a substantial number of copies of a work or any other protected object be 

considered by the competent judicial authorities to constitute reasonable evidence. 

2.  Under the same conditions, in the case of an infringement committed on a commercial scale 

Member States shall take such measures as are necessary to enable the competent judicial 

authorities to order, where appropriate, on application by a party, the communication of banking, 

financial or commercial documents under the control of the opposing party, subject to the protection 

of confidential information. 

 
 
 
 
 
 
 
 
65
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 7 

Measures for preserving evidence 

1.  Member States shall ensure that, even before the commencement of proceedings on the merits 

of the case, the competent judicial authorities may, on application by a party who has presented 

reasonably available evidence to support his claims that his intellectual property right has been 

infringed or is about to be infringed, order prompt and effective provisional measures to preserve 

relevant evidence in respect of the alleged infringement, subject to the protection of confidential 

information.  Such measures may include the detailed description, with or without the taking of 

samples, or the physical seizure of the infringing goods, and, in appropriate cases, the materials and 

implements used in the production and/or distribution of these goods and the documents relating 

thereto.  Those measures shall be taken, if necessary without the other party having been heard, in 

particular where any delay is likely to cause irreparable harm to the rightholder or where there is a 

demonstrable risk of evidence being destroyed. 

Where measures to preserve evidence are adopted without the other party having been heard, the 

parties affected shall be given notice, without delay after the execution of the measures at the latest.  

A review, including a right to be heard, shall take place upon request of the parties affected with a 

view to deciding, within a reasonable period after the notification of the measures, whether the 

measures shall be modified, revoked or confirmed.  

 
 
 
 
 
 
66
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

2.  Member States shall ensure that the measures to preserve evidence may be subject to the 

lodging by the applicant of adequate security or an equivalent assurance intended to ensure 

compensation for any prejudice suffered by the defendant as provided for in paragraph 4. 

3.  Member States shall ensure that the measures to preserve evidence are revoked or otherwise 

cease to have effect, upon request of the defendant, without prejudice to the damages which may be 

claimed, if the applicant does not institute, within a reasonable period, proceedings leading to a 

decision on the merits of the case before the competent judicial authority, the period to be 

determined by the judicial authority ordering the measures where the law of a Member State so 

permits or, in the absence of such determination, within a period not exceeding 20 working days or 

31 calendar days, whichever is the longer. 

4.  Where the measures to preserve evidence are revoked, or where they lapse due to any act or 

omission by the applicant, or where it is subsequently found that there has been no infringement or 

threat of infringement of an intellectual property right, the judicial authorities shall have the 

authority to order the applicant, upon request of the defendant, to provide the defendant appropriate 

compensation for any injury caused by those measures. 

5.  Member States may take measures to protect witnesses' identity. 

' 

 
 
 
 
 
 
 
67
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Section 3 

Right of information 

Article 8 

Right of information 

1.  Member States shall ensure that, in the context of proceedings concerning an infringement of 

an intellectual property right and in response to a justified and proportionate request of the claimant, 

the competent judicial authorities may order that information on the origin and distribution 

networks of the goods or services which infringe an intellectual property right be provided by the 

infringer and/or any other person who: 

(a)  was found in possession of the infringing goods on a commercial scale; 

(b)  was found to be using the infringing services on a commercial scale; 

 
 
 
 
 
 
 
 
 
68
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(c)  was found to be providing on a commercial scale services used in infringing activities; or 

(d)  was indicated by the person referred to in point (a), (b) or (c) as being involved in the 

production, manufacture or distribution of the goods or the provision of the services. 

2. 

The information referred to in paragraph 1 shall, as appropriate, comprise: 

(a) 

the names and addresses of the producers, manufacturers, distributors, suppliers and other 

previous holders of the goods or services, as well as the intended wholesalers and retailers; 

(b) 

information on the quantities produced, manufactured, delivered, received or ordered, as well 

as the price obtained for the goods or services in question. 

 
 
 
 
 
 
 
69
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

3. 

Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which: 

(a) 

grant the rightholder rights to receive fuller information; 

(b)  govern the use in civil or criminal proceedings of the information communicated pursuant to 

this Article; 

(c) 

govern responsibility for misuse of the right of information; or 

(d) 

afford an opportunity for refusing to provide information which would force the person 

referred to in paragraph 1 to admit to his own participation or that of his close relatives in an 

infringement of an intellectual property right; or 

(e) 

govern the protection of confidentiality of information sources or the processing of personal 

data. 

 
 
 
 
 
 
 
 
 
70
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Section 4 

Provisional and precautionary measures 

Article 9 

Provisional and precautionary measures 

1.  Member States shall ensure that the judicial authorities may, at the request of the applicant: 

(a) 

issue against the alleged infringer an interlocutory injunction intended to prevent any 

imminent infringement of an intellectual property right, or to forbid, on a provisional basis 

and subject, where appropriate, to a recurring penalty payment where provided for by national 

law, the continuation of the alleged infringements of that right, or to make such continuation 

subject to the lodging of guarantees intended to ensure the compensation of the rightholder; 

an interlocutory injunction may also be issued, under the same conditions, against an 

intermediary whose services are being used by a third party to infringe an intellectual property 

right; injunctions against intermediaries whose services are used by a third party to infringe a 

copyright or a related right are covered by Directive 2001/29/EC; 

 
 
 
 
 
 
 
 
71
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

(b)  order the seizure or delivery up of the goods suspected of infringing an intellectual property 

right so as to prevent their entry into or movement within the channels of commerce. 

2. 

In the case of an infringement committed on a commercial scale, the Member States shall 

ensure that, if the injured party demonstrates circumstances likely to endanger the recovery of 

damages, the judicial authorities may order the precautionary seizure of the movable and 

immovable property of the alleged infringer, including the blocking of his bank accounts and other 

assets.  To that end, the competent authorities may order the communication of bank, financial or 

commercial documents, or appropriate access to the relevant information. 

3. 

The judicial authorities shall, in respect of the measures referred to in paragraphs 1 and 2, 

have the authority to require the applicant to provide any reasonably available evidence in order to 

satisfy themselves with a sufficient degree of certainty that the applicant is the rightholder and that 

the applicant's right is being infringed, or that such infringement is imminent. 

 
 
 
 
 
72
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

4.  Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 

may, in appropriate cases, be taken without the defendant having been heard, in particular where 

any delay would cause irreparable harm to the rightholder.  In that event, the parties shall be so 

informed without delay after the execution of the measures at the latest. 

A review, including a right to be heard, shall take place upon request of the defendant with a view 

to deciding, within a reasonable time after notification of the measures, whether those measures 

shall be modified, revoked or confirmed. 

5.  Member States shall ensure that the provisional measures referred to in paragraphs 1 and 2 are 

revoked or otherwise cease to have effect, upon request of the defendant, if the applicant does not 

institute, within a reasonable period, proceedings leading to a decision on the merits of the case 

before the competent judicial authority, the period to be determined by the judicial authority 

ordering the measures where the law of a Member State so permits or, in the absence of such 

determination, within a period not exceeding 20 working days or 31 calendar days, whichever is the 

longer. 

 
 
 
 
 
73
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

6. 

The competent judicial authorities may make the provisional measures referred to in 

paragraphs 1 and 2 subject to the lodging by the applicant of adequate security or an equivalent 

assurance intended to ensure compensation for any prejudice suffered by the defendant as provided 

for in paragraph 7.  

7.  Where the provisional measures are revoked or where they lapse due to any act or omission 

by the applicant, or where it is subsequently found that there has been no infringement or threat of 

infringement of an intellectual property right, the judicial authorities shall have the authority to 

order the applicant, upon request of the defendant, to provide the defendant appropriate 

compensation for any injury caused by those measures. 

 
 
 
 
74
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Section 5 

Measures resulting from a decision on the merits of the case 

Article 10 

Corrective measures 

1.  Without prejudice to any damages due to the rightholder by reason of the infringement, and 

without compensation of any sort, Member States shall ensure that the competent judicial 

authorities may order, at the request of the applicant, that appropriate measures be taken with regard 

to goods that they have found to be infringing an intellectual property right and, in appropriate 

cases, with regard to materials and implements principally used in the creation or manufacture of 

those goods.  Such measures shall include: 

(a)  

recall from the channels of commerce, 

(b)   definitive removal from the channels of commerce, or 

(c) 

destruction. 

 
 
 
 
 
 
 
 
 
75
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

2. 

The judicial authorities shall order that those measures be carried out at the expense of the 

infringer, unless particular reasons are invoked for not doing so. 

3. 

In considering a request for corrective measures, the need for proportionality between the 

seriousness of the infringement and the remedies ordered as well as the interests of third parties 

shall be taken into account. 

 
 
 
 
 
76
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 11 

 Injunctions 

Member States shall ensure that, where a judicial decision is taken finding an infringement of an 

intellectual property right, the judicial authorities may issue against the infringer an injunction 

aimed at prohibiting the continuation of the infringement.  Where provided for by national law, 

non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty 

payment, with a view to ensuring compliance.   Member States shall also ensure that rightholders 

are in a position to apply for an injunction against intermediaries whose services are used by a 

third party to infringe an intellectual property right, without prejudice to Article 8(3) of 

Directive 2001/29/EC. 

 
 
 
 
 
 
77
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 12 

Alternative measures 

Member States may provide that, in appropriate cases and at the request of the person liable to be 

subject to the measures provided for in this Section, the competent judicial authorities may order 

pecuniary compensation to be paid to the injured party instead of applying the measures provided 

for in this Section if that person acted unintentionally and without negligence, if execution of the 

measures in question would cause him disproportionate harm and if pecuniary compensation to the 

injured party appears reasonably satisfactory. 

Section 6 

Damages and legal costs 

Article 13 

Damages 

1.   Member States shall ensure that the competent judicial authorities, on application of the injured 

party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an 

infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by 

him as a result of the infringement. 

 
 
 
 
 
 
 
 
 
 
78
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

When the judicial authorities set the damages: 

(a) 

they shall take into account all appropriate aspects, such as the negative economic 

consequences, including lost profits, which the injured party has suffered, any unfair profits 

made by the infringer and, in appropriate cases, elements other than economic factors, such as 

the moral prejudice caused to the rightholder by the infringement; 

or 

(b) 

as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the 

basis of elements such as at least the amount of royalties or fees which would have been due 

if the infringer had requested authorisation to use the intellectual property right in question. 

 
 
 
 
 
 
 
79
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

2.  Where the infringer did not knowingly, or with reasonable grounds to know, engage in 

infringing activity, Member States may lay down that the judicial authorities may order the 

recovery of profits or the payment of damages, which may be pre-established. 

Article 14 

Legal costs 

Member States shall ensure that reasonable and proportionate legal costs and other expenses 

incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless 

equity does not allow this. 

 
 
 
 
 
 
 
80
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Section 7 

Publicity measures 

Article 15 

Publication of judicial decisions 

Member States shall ensure that, in legal proceedings instituted for infringement of an intellectual 

property right, the judicial authorities may order, at the request of the applicant and at the expense 

of the infringer, appropriate measures for the dissemination of the information concerning the 

decision, including displaying the decision and publishing it in full or in part.  Member States may 

provide for other additional publicity measures which are appropriate to the particular 

circumstances, including prominent advertising. 

 
 
 
 
 
 
 
 
81
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

CHAPTER III 

Sanctions by Member States 

Article 16 

Sanctions by Member States 

Without prejudice to the civil and administrative measures, procedures and remedies laid down by 

this Directive, Member States may apply other appropriate sanctions in cases where intellectual 

property rights have been infringed. 

 
 
 
 
 
 
 
 
 
82
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

CHAPTER IV 

Codes of conduct and administrative cooperation 

Article 17 

Codes of conduct 

Member States shall encourage: 

(a) 

the development by trade or professional associations or organisations of codes of conduct at 

Community level aimed at contributing towards the enforcement of the intellectual property 

rights, particularly by recommending the use on optical discs of a code enabling the 

identification of the origin of their manufacture; 

(b) 

the submission to the Commission of draft codes of conduct at national and Community level 

and of any evaluations of the application of these codes of conduct. 

 
 
 
 
 
 
 
 
 
 
 
83
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 18 

Assessment 

1. 

Three years after the date laid down in Article 20(1), each Member State shall submit to the 

Commission a report on the implementation of this Directive.  

On the basis of those reports, the Commission shall draw up a report on the application of this 

Directive, including an assessment of the effectiveness of the measures taken, as well as an 

evaluation of its impact on innovation and the development of the information society.  That report 

shall then be transmitted to the European Parliament, the Council and the European Economic and 

Social Committee.  It shall be accompanied, if necessary and in the light of developments in the 

Community legal order, by proposals for amendments to this Directive. 

2.  Member States shall provide the Commission with all the aid and assistance it may need when 

drawing up the report referred to in the second subparagraph of paragraph 1. 

 
 
 
 
 
 
 
 
84
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 19 

Exchange of information and correspondents 

For the purpose of promoting cooperation, including the exchange of information, among Member 

States and between Member States and the Commission, each Member State shall designate one or 

more national correspondents for any question relating to the implementation of the measures 

provided for by this Directive.  It shall communicate the details of the national correspondent(s) to 

the other Member States and to the Commission. 

 
 
 
 
 
85
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

CHAPTER V 

Final provisions 

Article 20 

Implementation 

1.  Member States shall bring into force the laws, regulations and administrative provisions 
necessary to comply with this Directive by ... *.  They shall forthwith inform the Commission 

thereof. 

When Member States adopt these measures, they shall contain a reference to this Directive or shall 

be accompanied by such reference on the occasion of their official publication.  The methods of 

making such reference shall be laid down by Member States. 

2.  Member States shall communicate to the Commission the texts of the provisions of national 

law which they adopt in the field governed by this Directive.

*  

Twenty-four months after the date of adoption of this Directive. 

 
 
 
 
 
 
 
 
 
                                                 
86
30.4.2004 
_______________________________________________________________________________ 

Official Journal of the European Union 

L 157/ 

EN 

Article 21 

Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in the 

Official Journal of the European Union. 

Article 22 

Addressees 

This Directive is addressed to the Member States. 

Done at Strasbourg, 29.4.2004. 

For the European Parliament 

The President 

P. COX 

For the Council 

The President 

M. McDOWELL