Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning customs enforcement of intellectual property rights
Date: 2011-05-24
Institutions: European Commission
Subjects: customs regulations, illicit trade, industrial counterfeiting, trade-mark law

EUROPEAN COMMISSION 

Brussels, 24.5.2011 
COM(2011) 285 final 

2011/0137 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

concerning customs enforcement of intellectual property rights 

{SEC(2011) 597 final} 
{SEC(2011) 598 final} 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Background 

The  Commission’s  Communication  on  a  strategy  for  smart,  sustainable  growth,  ‘Europe 
2020’1, underlined the importance of innovation for growth and jobs and Intellectual Property 
Rights  (IPR)  are  fundamental  to  this  key  priority,  ensuring  full  benefits  from  research, 
innovation  and  creative  activities.  IPR  infringements  and  the  resulting  trade  in  infringing 
goods  are  of  growing  concern,  particularly  in  a  globalised  economy.  In  addition  to  the 
economic  consequences  for  industry,  the  infringing  products  may  pose  serious  health  and 
safety  risks  to  consumers.  In  its  Communication  on  a  Single  Market  Act2,  the  Commission 
therefore  recalled  that  customs  authorities  should  be  able  to  provide  greater  protection  for 
intellectual-property rights through revised legislation. 

Council Regulation (EC) No 1383/2003 provides for customs action against goods suspected 
of  infringing  certain  intellectual  property  rights  and  is  an  important  element  in  the  EU's 
strategy  to  protect  and  enforce  intellectual  property  rights.  In  September  2008  the  Council3 
invited  the  Commission  and  the  Member  States  to  review  this  Regulation  and  suggest  and 
evaluate the improvements to the legal framework on action against products found to have 
infringed such rights. 

The Commission developed a new customs action plan to combat IPR infringements for the 
years  2009-2012.  The  main  elements  of  the  Action  Plan4,  prepared  by  the  Commission  and 
endorsed  by  the  Council,  cover  legislation,  operational  performance,  cooperation  with 
industry, international cooperation and awareness-raising. The review of the Regulation was 
incorporated into the plan and was carried out by the Commission, in close collaboration with 
the  Member  States  through  a  working  group  created  under  the  Customs  2013  Programme, 
which was composed by experts of the customs administrations of the Member States. 

Certain  instances  of  detentions  by  customs  authorities  of  shipments  of  medicines  in  transit 
through  the  EU,  which  occurred  at  the  end  of  2008,  gave  rise  to  concerns  among  certain 
Members of the WTO, Members of the European Parliament, NGOs and the civil society. It 
was  claimed  that  such  measures  could  hamper  legitimate  trade  in  generic  medicines,  thus 
contradicting the EU commitment to facilitating access to medicines in the developing world, 
and  eventually  violating  WTO  rules.  The  incidents  of  detentions  triggered  WTO  disputes 
against  the  EU  by  India  and  Brazil,  which  together  with  the  concerns  expressed  during  the 
relevant  WTO  consultations  between  India  and  Brazil  and  the  EU,  have  shown  that  the 
relevant  EU  legislation  for  intellectual  property  enforcement  by  customs  authorities  could 
benefit from further clarification to increase legal certainty. 

1 

2 
3 

4 

Communication  from  the  Commission,  Europe  2020.  A  strategy  for  smart,  sustainable  and  inclusive 
growth. Brussels - COM(2010) 2020, 3.3.2010. 
Commission Communication of 13 April 2011: Single Market Act - COM(2011) 206. 
Council Resolution of 25 September 2008 on a comprehensive European anti-counterfeiting and anti-
piracy plan (OJ C 253, 4.10.2008, p. 1). 
Council Resolution of 16 March 2009 on the EU Customs Action Plan to combat IPR infringements for 
the years 2009 to 2012 (OJ C 71, 25.3.2009 p. 1). 

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1.2. 

Consistency with other EU policies 

The proposal is in line with the Union’s longstanding policy and strategy on the protection of 
IPR. This policy has been reflected in several Communications from the Commission, such as 
Europe  2020  and  the  Communication  on  a  Single  Market  Act5.  Protection  of  intellectual 
property  stimulates  innovation  and  effective  enforcement  has  a  positive  impact  on 
employment, consumers and society as a whole.  

The border enforcement of IPR by customs complements enforcement on the internal market, 
as  well  trade  initiatives  with  third  countries  and  in  international  fora.  The  proposal  is  an 
integral  part  of  the  strategic  framework  outlined  in  the  new  Communication  from  the 
Commission on a Single Market for Intellectual Property Rights of [ May 2011]. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

2.1. 

Public consultation 

A  public  consultation  was  carried  out  to  ensure  that  all  stakeholders  were  given  ample 
opportunity to contribute to the review of Regulation (EC) No 1383/2003. The response to the 
public  consultation  included  89  contributions  from  a  wide  range  of  stakeholders,  including 
right-holders,  providers  of  services  related  to  international  trade,  such  as  forwarders  and 
carriers, lawyers, academic institutions, NGOs, public authorities and citizens. 

The main issues that attracted interest from the respondents were the scope of the Regulation 
in  relation  to  the  situations  in  which  customs  authorities  can  take  action  and  the  range  of 
intellectual property rights covered by the Regulation, the simplified procedure in general and 
in relation to small consignments and the costs of storage and destruction of goods. 

2.2. 

Impact Assessment 

The impact assessment report identified and assessed policy options concerning the customs 
measures and procedures related to the border enforcement of intellectual property rights. The 
main  areas  covered  were  the  scope  for  strengthening  IPR  enforcement  at  the  border, 
addressing the administrative and economic burdens of enforcement on customs, right-holders 
and other stakeholders, and the need to ensure effectiveness and consistency with all relevant 
legal obligations.  

The impact assessment report looked at three different options, if relevant with a number of 
sub-options.  The  first  option  provided  for  the  so-called  ‘baseline  scenario’,  where  the 
Commission  would  take  no  action  and  the  status  quo  was  maintained.  The  second  option 
provided for certain non-legislative measures, where the Commission would propose training 
initiatives and the development of guidelines and exchange of best practises. The third option 
was for the Commission to propose amendments to the existing legal framework. Under this 
option different sub-options could be available for each of the identified problems. 

5 

Commission Communication of 11 November 2010: ‘Towards a Single Market Act - COM(2010) 608 
final/2. 

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•  Option 1 should be excluded if the Commission was to respond adequately to the Council’s 
request to review the legislation and to the concerns about the scope and implementation of 
the current legislation expressed by stakeholders during the consultation process. 

•  Option 2 would only partially address the identified problems. Guidelines and explanatory 
notes could help clarify applicable procedures or how to apply general principles of law. 
However,  these  non-legislative  measures  could  not  address  some  of  the  objectives  of 
widening  the  scope  of  intellectual  property  rights  or  make  procedures  compulsory 
throughout the Union. 

•  Option 3 would give the maximum legal certainty that IP rights not covered by the present 
Regulation  would  be  included,  procedures  would  be  harmonised  and  procedural 
clarifications would be given. Under this option, two sub-options were given. Sub-option 1 
provided for the extension of the possible types of infringements to rights already covered 
by  the  current  Regulation,  for  example,  as  regards  goods  involving  any  infringement  of 
trade mark rights, not just counterfeiting. Sub-option 2 included sub-option 1 and extended 
the current scope of the Regulation in terms of IPR covered. 

The  impact  assessment  concluded  that  the  best  suitable  solution  would  be  to  amend  the 
Regulation to respond to all the problems identified and to ensure a balanced outcome for all 
categories of affected persons. 

3. 

LEGAL BASIS AND SUBSIDIARITY 

The  commercial  aspects  of  intellectual  property  are  part  of  the  framework  of  the  common 
commercial  policy.  Article  207  of  the  Treaty  on  the  Functioning  of  the  European  Union 
provides  powers  to  adopt  measures  for  implementing  the  common  commercial  policy. 
Therefore the legal basis for the proposal is Article 207 of the Treaty on the Functioning of 
the European Union. 

The Regulation concerns the commercial aspects of intellectual property rights in that it deals 
with measures enabling customs to enforce intellectual property rights at the border on goods 
that are internationally traded. Article 3(1) of the Treaty on the Functioning of the European 
Union  provides  exclusive  competence  on  the  European  Union  in  the  area  of  common 
commercial policy. 

4. 

BUDGETARY IMPLICATION 

The proposal will not have an impact on human resources and on the European Union budget 
and is therefore not accompanied by the financial statement foreseen under Article 28 of the 
Financial Regulation (Council Regulation (EC, Euratom)  No 1605/2002 of 25  June  2002  on 
the Financial Regulation applicable to the general budget of the European Communities). 

5. 

AMENDMENTS 

The  review  identified  certain  improvements  to  the  legal  framework  that  were  considered 
necessary to strengthen the provisions concerning enforcement of intellectual property rights, 
whilst  at  the  same  time  ensuring  legal  clarity  of  the  provisions  themselves.  It  is  therefore 

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proposed  to  replace  Council  Regulation (EC)  No 1383/2003,  with  the  attached  draft  new 
Regulation.  

In  order  to  strengthen  enforcement,  it  is  proposed  to  broaden  the  scope  covered  by 
Regulation (EC)  No 1383/2003,  by  including  trade  names,  topographies  of  semiconductor 
products  and  utility  models.  It  is  also  proposed  to  widen  the  scope  of  the  Regulation  by 
including infringements resulting from parallel trade and devices to circumvent technological 
measures, as well as other infringements of rights already enforced by customs.  

The  Regulation  would  maintain  the  ability  for  customs  to  control  for  the  purpose  of 
enforcement of intellectual property rights, in all situations where the goods were under their 
supervision  and  the  distinction  between  the  procedural  nature  of  the  legislation  and 
substantive law on intellectual property would be emphasised.  

The Regulation would also introduce procedures enabling customs, under certain conditions, 
to have goods abandoned  for  destruction without having  to undergo formal and costly legal 
proceedings.  These  would  be  differentiated  according  to  the  type  of  infringement.  For 
counterfeit  and  pirated  goods,  the  agreement  of  the  owner  to  destroy  the  goods  could  be 
presumed if the destruction had not been explicitly opposed, whereas for other situations, the 
owner of the goods would have to agree explicitly to their destruction. In case no agreement is 
reached,  the  right-holder  would  have  to  initiate  legal  proceedings  to  establish  the 
infringement, otherwise the goods would be released. 

A  specific  procedure  is  also  proposed  for  small  consignments  of  suspected  counterfeit  and 
pirated  goods  covered  by  an  application,  which  would  allow  for  goods  to  be  destroyed 
without the involvement of the right- holder.  

Additional  provisions  are  proposed  to  ensure  the  protection  of  the  interests  of  legitimate 
traders  from  possible  abuse  of  the  customs  enforcement  procedures  and  to  integrate  the 
principles of the Charter of fundamental rights in the Regulation. To this end, the Regulation 
would clarify the timelines for detaining suspected goods, the conditions in which information 
about  consignments  would  be  passed  on  to  right-holders  by  customs,  the  conditions  for 
applying  the  procedure  allowing  for  destruction  of  the  goods  under  customs  control  for 
suspected  infringements  of  intellectual  property  rights  other  than  for  counterfeiting  and 
piracy, and the right of defence. In this way, the new regulation would become a more robust 
enforcement  tool  thereby  enhancing  the  legitimacy  of  customs  action.The  issue  of  costs  of 
storage and destruction of infringing goods has attracted attention from different stakeholders. 
The Regulation would continue to provide that storage and destruction costs directly incurred 
by customs be assumed by the right-holders requesting customs action, though this would not 
preclude  them  from  taking  legal  action  to  recover  such  costs  from  the  primary  liable  party. 
However,  it  is  proposed  to  introduce  an  important  exception  for  small  consignments,  for 
which storage and destruction costs would be assumed by customs. 

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2011/0137 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

concerning customs enforcement of intellectual property rights 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207 
thereof, 

Having regard to the proposal from the European Commission 6, 

Having regard the opinion of the European Data Protection Supervisor, 

After transmission of the draft legislative act to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The  Council  of  the  European  Union  requested,  in  its  Resolution  of  25  September  2008  on  a 
that  Council 
comprehensive  European 
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 rights8, be reviewed. 

anti-piracy  plan7, 

anti-counterfeiting 

and 

The  marketing  of  goods  infringing  intellectual  property  rights  does  considerable  damage  to 
right-holders, law-abiding manufacturers and traders. It is also deceiving consumers, and could 
in some cases endanger their health and safety. Such goods should, in so far as is possible, be 
kept off the market and measures should be adopted to deal with this unlawful activity without 
impeding legitimate trade. 

The  review  of  Regulation (EC)  No 1383/2003  showed  that  certain  improvements  to  the  legal 
framework were necessary to strengthen the enforcement of intellectual property rights, as well 
as  to  ensure  appropriate  legal  clarity,  thereby  taking  into  account  developments  in  the 
economic, commercial and legal areas. 

(4) 

The customs authorities should be able to control goods, which are or should have been subject 
to  customs  supervision  in  the  customs  territory  of  the  Union,  with  a  view  to  enforcing 

6 
7 
8 

OJ C 
OJ C253, 4.10.2008, p. 1. 
OJ L 196, 2.8.2003, p. 7. 

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intellectual  property  rights.  Enforcing  intellectual  property  rights  at  the  border,  wherever  the 
goods are, or should have been, under ‘customs supervision’ as defined by Council Regulation 
(EEC) No 2913/92 establishing the Community Customs Code9, makes good use of resources. 
Where goods are detained by customs at the border, one legal proceeding is required, whereas 
several  separate  proceedings  would  be  required  for  the  same  level  of  enforcement  for  goods 
found  on  the  market,  which  have  been  disaggregated  and  delivered  to  retailers.  An  exception 
should be made for goods released for free circulation under the end-use regime, as such goods 
remain under customs supervision, even though they have been released for free circulation. It 
is also appropriate not to apply the Regulation to goods carried by passengers in their personal 
luggage as long as these goods are for their own personal use and there are no indications that 
commercial traffic is involved. 

Regulation (EC) No 1383/2003 does not cover certain intellectual property rights and excludes 
certain  infringements.  In  order  to  strengthen  the  enforcement  of  intellectual  property  rights, 
customs  control  should  therefore  be  extended  to  other  types  of  infringements,  such  as 
infringements  resulting  from  parallel  trade,  as  well  as  other  infringements  of  rights  already 
enforced  by  customs  authorities  but  not  covered  by  Regulation (EC)  No 1383/2003.  For  the 
same purpose it is appropriate to include in the scope of this Regulation, in addition to the rights 
already covered by Regulation (EC) No 1383/2003, trade names in so far as they are protected 
as exclusive property rights under national law, topographies of semiconductor products, utility 
models and devices to circumvent technological measures, as well as any exclusive intellectual 
property right established by Union legislation. 

This Regulation contains procedural rules for customs authorities. Accordingly, this Regulation 
does  not  introduce  any  new  criterion  for  ascertaining  the  existence  of  an  infringement  of  the 
intellectual property law applicable.  

This  Regulation  should  not  affect  the  provisions  on  the  competence  of  courts,  in  particular, 
those  of  Council  Regulation  (EC)  No  44/2001  on  jurisdiction  and  the  recognition  and 
enforcement of judgments in civil and commercial matters10. 

Any person, whether or not the holder of an intellectual property right, who is able to initiate 
legal  proceedings  in  his/her  own  name  with  respect  to  a  possible  infringement  of  that  right, 
should be entitled to submit an application for action by the customs authorities. 

In  order  to  ensure  that  intellectual  property  rights  are  enforced  throughout  the  Union,  it  is 
appropriate  to  provide  that,  where  a  person  entitled  to  submit  an  application  for  action  seeks 
enforcement  of  an  intellectual  property  right  covering  the  whole  territory  of  the  Union,  that 
person  may  request  the  customs  authorities  of  a  Member  State  to  take  a  decision  requiring 
action by the customs authorities of that Member State and of any other Member State where 
enforcement of the intellectual property right is sought. 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

In  order  to  ensure  the  swift  enforcement  of  intellectual  property  rights,  it  should  be  provided 
that, where the customs authorities suspect, on the basis of adequate evidence, that goods under 
their supervision infringe intellectual property rights, those customs authorities may suspend the 

9 
10 

OJ L 302, 19.10.1992, p. 1. 
OJ L 12, 16.1.2001, p. 1. 

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release or detain the goods whether at their own initiative or upon application, in order to enable 
the  persons  entitled  to  submit  an  application  for  action  of  the  customs  authorities  to  initiate 
proceedings for determining whether an intellectual property right has been infringed. 

(11)  Where  goods  suspected  of  infringing  intellectual  property  rights  are  not  counterfeit  or  pirated 
goods,  it  may  be  difficult  to  determine  upon  mere  visual  examination  by  customs  authorities 
whether an intellectual property right might be infringed. It is therefore appropriate to provide 
that  proceedings  should  be  initiated,  unless  the  parties  concerned,  namely  the  holder  of  the 
goods  and  the  right-holder,  agree  to  abandon  the  goods  for  destruction.  It  should  be  for  the 
competent  authorities  dealing  with  such  proceedings  to  determine  whether  an  intellectual 
property right has been infringed and to take appropriate decisions concerning the infringements 
of intellectual property rights concerned. 

(12)  Regulation (EC) No 1383/2003 allowed Member States to provide for a procedure allowing the 
destruction  of  certain  goods  without  there  being  any  obligation  to  initiate  proceedings  to 
establish  whether  an  intellectual  property  right  has  been  infringed.  As  recognised  in  the 
European  Parliament  Resolution  of  18  December  2008  on  the  impact  of  counterfeiting  on 
international trade11, this procedure has proved very successful in the Member States where it 
has  been  available.  Therefore,  such  procedure  should  be  made  compulsory  for  those  visible 
infringements that are easy to identify upon mere visual examination by the customs authorities 
and should be applied at the right-holder’s request, where the declarant or holder of the goods 
does not object to destruction. 

(13) 

In  order  to  reduce  to  the  minimum  the  administrative  burden  and  costs,  a  specific  procedure 
should  be  introduced  for  small  consignments  of  counterfeit  and  pirated  goods,  which  would 
allow for goods to be destroyed without the agreement of the right-holder. In order to establish 
the  thresholds  under  which  consignments  are  to  be  considered  as  small  consignments,  this 
Regulation  should  delegate  to  the  Commission  the  power  to  adopt  non-legislative  acts  of 
general  application  in  accordance  with  Article  290  of  the  Treaty  on  the  Functioning  of  the 
European Union. It is of importance that the Commission carries out appropriate consultations 
during its preparatory work, including at expert level. 

(14)  The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, 
timely  and  appropriate  transmission  of  relevant  documents  to  the  European  Parliament  and 
Council. 

(15)  For further legal clarity and in order to protect the interests of legitimate traders from possible 
abuse  of  the  border  enforcement  provisions,  it  is  appropriate  to  modify  the  timelines  for 
detaining  goods  suspected  of  infringing  an  intellectual  property  right,  the  conditions  in  which 
information about consignments is to be passed on to right-holders by customs authorities, the 
conditions  for  applying  the  procedure  allowing  for  destruction  of  the  goods  under  customs 
control for suspected infringements of intellectual property rights other than for counterfeit and 
pirated goods and to introduce a provision allowing the holder of the goods to express his/her 
views before the customs administration takes a decision which would adversely affect him/her. 

11 

Resolution 2008/2133/INI. 

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(16)  Taking  into  account  the  provisional  and  preventive  character  of  the  measures  adopted  by  the 
customs  authorities  in  this  field  and  the  conflicting  interests  of  the  parties  affected  by  the 
measures, some aspects of the procedures should be adapted to ensure a smooth application of 
the Regulation, whilst respecting the rights of the concerned parties. Thus, with respect to the 
various  notifications  envisaged  by  this  Regulation,  the  customs  authorities  should  notify  the 
most appropriate person, on the basis of the documents concerning the customs treatment or of 
the  situation  in  which  the  goods  are  placed.  The  periods  laid  down  in  this  Regulation  for  the 
required notifications should be counted from the time those are sent by the customs authorities 
in order to align all periods of notifications sent to the concerned parties. The period allowing 
for a right to be heard before an adverse decision is taken should be three working days, given 
that  the  holders  of  decisions  granting  applications  for  action  have  voluntarily  requested  the 
customs authorities to take action and that the declarants or holders of the goods must be aware 
of the particular situation of their goods when placed under customs supervision. In the case of 
the  specific  procedure  for  small  consignments,  where  consumers  are  likely  to  be  directly 
concerned  and  cannot  be  expected  to  have  the  same  level  of  diligence  as  other  economic 
operators usually involved in the accomplishment of customs formalities, that period should be 
significantly extended.  

(17)  Under the "Declaration on the TRIPS Agreement and Public Health" adopted by the Doha WTO 
Ministerial  Conference  on  14  November  2001,  the  TRIPS  Agreement  can  and  should  be 
interpreted and implemented in a manner supportive of WTO Members' right to protect public 
health  and,  in  particular,  to  promote  access  to  medicines  for  all.  In  particular  with  regard  to 
medicines  the  passage  of  which  across  this  territory  of  the  European  Union,  with  or  without 
transshipment,  warehousing,  breaking  bulk,  or  changes  in  the  mode  or  means  of  transport,  is 
only  a  portion  of  a  complete  journey  beginning  and  terminating  beyond  the  territory  of  the 
Union,  customs  authorities  should,  when  assessing  a  risk  of  infringement  of  intellectual 
property rights, take account of any substantial likelihood of diversion of these goods onto the 
market of the Union. 

(18) 

In the interest of efficiency, the provisions of Council Regulation (EC) No 515/97 of 13 March 
1997  on  mutual  assistance  between  the  administrative  authorities  of  the  Member  States  and 
cooperation between the latter and the Commission to ensure the correct application of the law 
on customs or agricultural matters12, should apply. 

(19)  The  liability  of  the  customs  authorities  should  be  governed  by  the  legislation  of  the  Member 
States,  though  the  granting  by  the  customs  authorities  of  an  application  for  action  should  not 
entitle the holder of the decision 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. 

(20)  Given  that  customs  authorities  take  action  upon  prior  application,  it  is  appropriate  to  provide 
that  the  holder  of  the  decision  granting  an  application  for  action  by  the  customs  authorities 
should  reimburse  all  the  costs  incurred  by  the  customs  authorities  in  taking  action  to  enforce 
his/her  intellectual  property  rights.  Nevertheless,  this  should  not  preclude  the  holder  of  the 
decision  from  seeking  compensation  from  the  infringer  or  other  persons  that  might  be 
considered  liable  according  to  the  legislation  of  the  Member  State  concerned.  Costs  and 
damages incurred by persons other than customs administrations as a result of a customs action, 

12 

OJ L 82, 22.3.1997, p. 1. 

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where  the  goods  are  detained  on  the  basis  of  a  claim  of  a  third  party  based  on  intellectual 
property, should be governed by the specific legislation in each particular case. 

(21)  Customs enforcement of intellectual property law will entail the exchange of data on decisions 
relating  to  applications  for  action.  Such  processing  of  data  covers  also  personal  data  which 
should  be  carried  out  in  accordance  with  Union  law,  as  set  out,  in  particular,  in  Directive 
95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection 
of individuals with regard to the processing of personal data and on the free movement of such 
data13  and  Regulation  (EC)  No  45/2001  of  the  European Parliament and of the Council of 18 
December 2000 on the protection of individuals with regard to the processing of personal data 
by Community institutions and bodies and on the free movement of such data14. 

(22) 

In order to ensure uniform conditions for the implementation of the provisions concerning the 
forms for the application for action by the customs authorities and for requesting the extension 
of the period during which customs authorities are to take action, implementing powers should 
be conferred on the Commission, namely to establish standard forms.  

(23)  Those  powers  should  be  exercised  in  accordance  with  Regulation (EU)  No 182/201115  of  the 
European Parliament and of the Council of 16 February 2011 laying down the rules and general 
principles  concerning  mechanisms  for  control  by  the  Member  States  of  the  Commission's 
exercise of implementing powers. Although the subject of the provisions of this Regulation to 
be implemented falls within the scope of the common commercial policy, given the nature and 
impacts of the implementing acts, the advisory procedure should be used for their adoption. 

(24)  Regulation (EC) No 1383/2003 should be repealed, 

HAVE ADOPTED THIS REGULATION: 

13 
14 
15 

OJ L 281, 23.11.1995, p. 31. 
OJ L 8, 12.1.2001, p. 1. 
OJ L 55, 28.2.2011, p. 13. 

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CHAPTER I 

SUBJECT MATTER, SCOPE AND DEFINITIONS 

Article 1 

Subject matter and scope 

1. 

2. 

3. 

4. 

This Regulation sets out the conditions and procedures for action by the customs authorities 
where  goods  suspected  of  infringing  an  intellectual  property  right  are,  or  should  have  been, 
subject to customs supervision within the customs territory of the Union. 

This Regulation shall not apply to goods that have been released for free circulation under the 
end-use regime within the meaning of Article 82 of Council Regulation (EEC) No 2913/92. 

This Regulation shall not affect in any way the laws of the Member States and of the Union on 
intellectual property. 

This Regulation shall not apply to goods of a non-commercial nature contained in travellers’ 
personal luggage. 

Article 2 

Definitions 

For the purposes of this Regulation: 

(1) 

‘intellectual property rights’ means: 

(a) 

a trade mark; 

(b) 

 a design; 

(c) 

 a copyright or any related right as provided for by the legislation of a Member State; 

(d) 

 a geographical indication; 

(e) 

(f) 

(g) 

 a patent as provided for by the legislation of a Member State; 

a  supplementary  protection  certificate  for  medicinal  products  as  provided  for  in 
Regulation (EC) No 469/2009 of the European Parliament and of the Council16; 

 a  supplementary  protection  certificate  for  plant  protection  products  as  provided  for  in 
Regulation (EC) No 1610/96 of the European Parliament and of the Council17; 

16 

OJ L 152, 16.6.2009, p. 1. 

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(h) 

(i) 

(j) 

 a  Community  plant  variety  right  as  provided  for  in  Council  Regulation (EC) 
No 2100/9418; 

a plant variety right as provided for by the legislation of a Member State; 

 a topography of semiconductor product as provided for by the legislation of a Member 
State; 

(k) 

 a utility model as provided for by the legislation of a Member State; 

(l) 

(m) 

 a  trade  name  in  so  far  as  it  is  protected  as  an  exclusive  intellectual  property  right  by 
legislation of a Member State; 

any  other  right  that  is  established  as  an  exclusive  intellectual  property  right  by  Union 
legislation; 

(2) 

‘trade mark’ means: 

(a) 

(b) 

(c) 

a Community trade mark as provided for in Council Regulation (EC) No 207/200919; 

a trade mark registered in a Member State, or, in the case of Belgium, the Netherlands or 
Luxembourg, at the Benelux Office for Intellectual Property; 

a trade mark registered under international arrangements which have effect in a Member 
State; 

(d) 

a trade mark registered under international arrangements which have effect in the Union; 

(3) 

‘design’ means: 

(a) 

a Community design as provided for in Regulation (EC) No 6/200220; 

(b) 

a design registered in a Member State; 

(c) 

a  design  registered  under  international  arrangements  which  have  effect  in  a  Member 
State; 

(d) 

a design registered under international arrangements which have effect in the Union; 

(4) 

‘geographical indication’ means: 

(a) 

a geographical indication or designation of origin protected for agricultural products and 
foodstuff as provided for in Council Regulation (EC) No 510/200621; 

17 
18 
19 
20 
21 

OJ L 198, 8.8.1996, p. 30. 
OJ L 227, 1.9.1994, p. 1. 
OJ L 78, 24.3.2009, p. 1.  
OJ L 3, 5.1.2002, p. 1. 
OJ L 93, 31.3.2006, p. 12. 

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(b) 

(c) 

(d) 

(e) 

(f) 

a  designation  of  origin  or  geographical  indication  for  wine  as  provided  for  in  Council 
Regulation (EC) No 1234/200722; 

a  geographical  designation  for  aromatised  wine  as  provided  for 
Regulation (EEC) No 1601/199123; 

in  Council 

a  geographical  indication  of  spirit  drinks  as  provided  for  in  Regulation (EC) 
No 110/2008 of the European Parliament and of the Council24; 

a geographical indication for products other than wines, spirits, agricultural products or 
foodstuff  in  so  far  as  it  is  established  as  an  exclusive  intellectual  property  right  by 
legislation of a Member State or the Union; 

a  geographical  indication  as  provided  for  in  Agreements  between  the  Union  and  third 
countries and as such listed in those Agreements; 

(5) 

‘counterfeit goods’ means: 

(6) 

(7) 

(a) 

 goods  which  are  subject  of  an  action  infringing  a  trade  mark  and  bear  without 
authorisation a trade mark identical to the trade mark validly registered in respect of the 
same type of goods, or which cannot be distinguished in its essential aspects from such a 
trade mark; 

(b) 

 goods which are subject of an action infringing a geographical indication and bear or are 
described by a name or term protected in respect of that geographical indication; 

‘pirated  goods’  means  goods  which  are  subject  of  an  action  infringing  a  copyright  or  related 
right or a design and which are or contain copies made without the consent of the holder of a 
copyright  or  related  right  or  a  design,  regardless  of  whether  it  is  registered,  or  of  a  person 
authorised by that holder in the country of production; 

‘goods suspected of infringing an intellectual property right’ means goods with regard to which 
there is adequate evidence to satisfy customs authorities that, in the Member State where these 
goods are found, are prima facie: 

(a) 

(b) 

 goods which are subject of an action infringing an intellectual property right under the 
law of the Union or of that Member State; 

 devices,  products  or  components  which  circumvent  any  technology,  device  or 
component that, in the normal course of its operation, prevents or restricts acts in respect 
of works which are not authorised by the right-holder of any copyright or right related to 
copyright and which infringe an intellectual property right under the law of that Member 
state; 

22 
23 
24 

OJ L 148, 6.6.2008, p. 1. 
OJ L 149, 14.6.1991, p. 1. 
OJ L 39, 13.2.2008, p. 16. 

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(c) 

 any  mould  or  matrix  which  is  specifically  designed  or  adapted  for  the  manufacture  of 
goods  infringing  an  intellectual  property  right,  if  such  moulds  or  matrices  infringe  the 
right-holder's rights under Union law or the law of that Member State; 

‘application’  means  a  request  made  to  the  customs  authorities  to  take  action  where  goods  are 
suspected of infringing an intellectual property right; 

‘national  application’  means  an  application  requesting  the  customs  authorities  of  a  Member 
State to take action in that Member State; 

‘Union  application’  means  an  application  submitted  in  one  Member  State  and  requesting  the 
customs authorities of that Member State and of one or more other Member States to take action 
in their respective Member States; 

(8) 

(9) 

(10) 

(11) 

‘applicant’ means the person who submits an application in his/her own name; 

(12) 

‘holder of the goods’ means the person who is the owner of the goods or who has a similar right 
of disposal over them or who has physical control over them; 

(13) 

‘declarant’ means the declarant as referred to in Article 4(18) of Regulation (EEC) No 2913/92; 

(14) 

(15) 

(16) 

(17) 

‘destruction’ means the physical destruction, recycling or disposal of goods outside commercial 
channels,  in  such  a  way  as  to  preclude  injury  to  the  holder  of  the  decision  granting  the 
application; 

‘customs  supervision’  means  the  supervision  by  customs  authorities  as  referred  to  in  Article 
4(13) of Regulation (EEC) No 2913/92; 

‘customs territory of the Union’ means the customs territory of the Community as referred to in 
Article 3 of Regulation (EEC) No 2913/92; 

‘release of the goods’ means the act whereby the customs authorities make goods available for 
the purposes specified for the customs procedure under which they are placed. 

Article 3 

Applicable law 

Without prejudice to Article 8 of Regulation (EC) No 864/200725, the law of the Member State where 
the goods are found in one of the situations referred to in Article 1(1) shall apply for the purpose of 
determining  whether  the  use of  those  goods gives rise  to suspicion of infringement  of an intellectual 
property right or has infringed an intellectual property right. 

25 

OJ L 199, 31.7.2007, p. 40. 

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APPLICATIONS FOR ACTION BY THE CUSTOMS AUTHORITIES 

CHAPTER II 

Section 1 

SUBMISSION OF APPLICATIONS FOR ACTION 

Article 4 

Persons entitled to submit an application 

1. 

The persons entitled to submit a national or a Union application shall be any of the following: 

(a) 

holders of intellectual property rights; 

(b) 

(c) 

intellectual property collective rights management bodies which are regularly recognised 
as having a right to represent holders of copyrights or related rights; 

professional defence bodies which are regularly recognised as having a right to represent 
holders of intellectual property rights; 

(d)  groups  in  the  meaning  of  Article  5(1)  of  Regulation (EC)  No 510/2006,  groups  of 
producers in the meaning of Article 118(e) of Regulation (EC) No 1234/2007 or similar 
groups  of  producers  foreseen  in  the  legislation  of  the  Union  governing  geographical 
indications  representing  producers  of  a  geographical  indication  or  representatives  of 
such  groups;  operators  entitled  to  use  a  geographical  indication;  as  well  as  inspection 
bodies competent for such a geographical indication; 

2. 

In  addition  to  the  persons  set  out  in  paragraph  1,  any  of  the  following  shall  be  entitled  to 
submit a national application: 

(a) 

all other persons authorised to use intellectual property rights; 

(b)  groups  of  producers  foreseen  in  the  legislation  of  the  Member  States  governing 
geographical  indications  representing  producers  of  a  geographical  indication  or 
representatives  of  such  groups,  operators  entitled  to  use  a  geographical  indication,  as 
well as inspection bodies competent for such a geographical indication; 

3. 

4. 

In addition to the persons set out in paragraph 1, the holder of an exclusive license covering 
the customs territory of the Union shall be entitled to submit a Union application. 

All  persons  entitled  to  submit  an  application  under  paragraphs  1,  2  and  3  must  be  able  to 
initiate proceedings for infringement of intellectual property rights in the Member State where 
the goods are found. 

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Article 5 

Intellectual property rights covered by Union applications  

A  Union  application  may  be  submitted  with  respect  to  any  intellectual  property  right  applying 
throughout the Union. 

Article 6 

Submission of applications  

1. 

2. 

3. 

The persons referred to in Article 4 may request action by the customs authorities where the 
use  of  goods  is  suspected  of  infringing  an  intellectual  property  right  by  submitting  an 
application  to  the  competent  customs  department.  The  application  shall  be  made  out  on  the 
form referred to in paragraph 3. 

Each Member State shall designate the customs department competent to receive and process 
applications.  The  Member  State  shall  inform  the  Commission  accordingly  and  the 
Commission  shall  make  public  the  list  of  competent  customs  departments  designated  by  the 
Member States. 

The  Commission  shall  establish  an  application  form  by  means  of  implementing  acts.  Those 
implementing acts shall be adopted in accordance with the advisory procedure referred to in 
Article 29(2). 

The  form  shall,  in  particular,  require  the  following  information  to  be  provided  by  the 
applicant: 

(a)  details of the applicant; 

(b) 

status of the applicant within the meaning of Article 4; 

(c) 

(d) 

supporting  documents  to  be  provided  to  satisfy  the  customs  department  that  the 
applicant is a person entitled to submit the application; 

the  empowerment  of  natural  or  legal  persons  representing  the  applicant,  in  accordance 
with the legislation of the Member State in which the application is filed; 

(e) 

the intellectual property right or rights to be enforced; 

(f) 

in  the  case  of  a  Union  application,  the  Member  State  or  Member  States  in  which 
customs action is requested; 

(g) 

specific and technical data on the authentic goods, including images where appropriate; 

(h) 

(i) 

the information, to be attached to the form, needed to enable the customs authorities to 
readily identify the goods in question; 

any information relevant to the customs authorities' analysis and assessment of the risk 
of infringement of the intellectual property right(s) concerned; 

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15 

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(j) 

name(s) and address(es) of the representative(s) of the applicant in charge of legal and 
technical matters; 

(k)  undertaking by the applicant to notify the competent customs department of any of the 

situations laid down in Article 14; 

(l) 

undertaking  by  the  applicant  to  forward  and  update  any  information  relevant  to  the 
customs  authorities'  analysis  and  assessment  of  the  risk  of  infringement  of  the 
intellectual property right(s) concerned; 

(m)  undertaking  by  the  applicant  to  assume  liability  under  the  conditions  laid  down  in 

Article 26; 

(n)  undertaking  by  the  applicant  to  bear  the  costs  referred  to  in  Article  27  under  the 

conditions laid down in that Article; 

(o)  undertaking by the applicant to agree that the data provided by him/her will be processed 

by the Commission; 

Where  computerised  systems  are  available  for  the  purpose  of  receiving  and  processing 
applications, applications shall be submitted using electronic data-processing techniques. 

Where  an  application  is  submitted  after  notification  by  the  customs  authorities  of  the 
suspension  of  the  release  or  detention  of  the  goods  in  accordance  with  Article  17(4),  that 
application shall comply with the following additional requirements: 

(a) 

it shall be submitted to the competent customs department within four working days of 
the notification of the suspension of the release or detention of the goods; 

(b) 

it shall be a national application ; 

(c) 

it shall contain the information required in paragraph 3. However, the applicant shall be 
allowed to ommit the particulars mentioned in paragraph 3, letters (g) to (i). 

4. 

5. 

Section 2 

DECISIONS ON APPLICATIONS FOR ACTION 

Article 7 

Processing of applications 

1. 

Where, on receipt of an application, the competent customs department considers that it does 
not  contain  all  the  information  required  by  Article  6(3),  the  competent  customs  department 
shall  request  the  applicant  to  supply  the  missing  information  within  10  working  days  of 
dispatch of the notification.  

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16 

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In such cases, the time limit referred to in Article 8 first subparagraph shall be suspended until 
the relevant information is received. 

Where the applicant does not provide the missing information within the period referred to in 
paragraph 1, the competent customs department shall reject the application. 

The applicant shall not be charged a fee to cover the administrative costs resulting from the 
processing of the application. 

2. 

3. 

Article 8 

Notification of decisions granting or rejecting applications for action 

The competent customs department shall notify the applicant of its decision granting or rejecting the 
application within 30 working days of the receipt of the application. 

However, where the applicant has been previously notified of the suspension of the release or detention 
of the goods by the customs authorities, the competent customs department shall notify the applicant of 
its  decision  granting  or  rejecting  the  application  within  one  working  day  of  the  receipt  of  the 
application. 

Article 9 

Decisions concerning applications for action  

1. 

2. 

Decisions  granting  a  national  application,  decisions  revoking  such  decisions  or  amending 
them, and decisions extending the period during which customs authorities are to take action 
shall take effect in the Member State in which the national application was filed from the date 
of their adoption. 

Decisions granting a Union application, decisions revoking such decisions or amending them 
and decisions extending  the  period  during which customs  authorities  are  to  take  action  shall 
take effect as follows: 

(a) 

in the Member State in which the application was filed, from the date of adoption ; 

(b) 

in all other Member States where action by the customs authorities is requested, from the 
date on which the customs authorities are notified in accordance with Article 13(2) and 
provided that the holder of the decision has fulfilled his obligations under Article 27(3). 

Article 10 

Period during which the customs authorities are to take action 

1. 

When  granting  an  application,  the  competent  customs  department  shall  specify  the  period 
during which the customs authorities are to take action. 

EN 

17 

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2. 

3. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

That period shall begin from the date of adoption of the decision granting the application and 
shall not exceed one year. 

Where an application submitted after notification by the customs authorities of the suspension 
of the release or detention of the goods in accordance with Article 17(4) does not contain the 
particulars referred to in Article 6(3) (g) to (i), it shall be granted only for the suspension of 
the release or detention of those goods. 

Where  an  intellectual  property  right  ceases  to  have  effect  or  where  the  applicant  ceases  for 
other reasons to be the person entitled to submit an application, no action shall be taken by the 
customs  authorities.  The  decision  granting  the  application  shall  be  revoked  or  amended 
accordingly by the customs autohorities that granted the decision. 

Article 11 

Extension of the period during which the customs authorities are to take action 

On expiry of the period during which the customs authorities are to take action, and subject to 
the prior discharge by the holder of the decision of any debt owed to the customs authorities 
under  this  Regulation,  the  customs  department  which  took  the  initial  decision  may,  at  the 
request of the holder of the decision granting the application, extend that period. 

Where the request for extension of the period during which the customs authorities are to take 
action  is  made  less  than  30  working  days  before  the  expiry  of  that  decision,  the  competent 
customs department may refuse the extension. 

The request for extension of the period during which the customs authorities are to take action 
shall indicate any change in the information provided under Article 6(3). 

The competent customs department shall notify its decision on the extension to the holder of 
the decision granting the application within 30 working days of the receipt of that request. 

The extended period during which the customs authorities are to take action shall run from the 
date of adoption of the decision granting the extension and shall not exceed one year. 

Where  an  intellectual  property  right  ceases  to  have  effect  or  where  the  applicant  ceases  for 
other reasons to be the person entitled to submit an application, no action shall be taken by the 
customs  authorities.  The  decision  granting  the  extension  shall  be  revoked  or  amended 
accordingly by the customs authorities that granted the decision. 

The holder of the decision shall not be charged a fee to cover the administrative costs resulting 
from the processing of the request for extension. 

The  Commission  shall  establish  an  extension  request  form  by  means  of  implementing  acts. 
Those implementing acts shall be adopted in accordance with the advisory procedure referred 
to in Article 29(2). 

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Article 12 

Amending the decision with regard to intellectual property rights  

The  competent  customs  department  that  adopted  the  decision  granting  the  application  may,  at  the 
request of the holder of that decision, modify the list of intellectual property rights in that decision. 

In  the  case  of  a  decision  granting  a  Union  application,  any  modification  consisting  in  adding 
intellectual property rights shall be limited to those intellectual property rights covered by Article 5. 

Article 13 

Notification obligations of the competent customs department 

1. 

The competent customs department to which a national application has been submitted shall 
forward the following decisions to the customs offices of its Member State, immediately after 
their adoption: 

(a) 

its decisions granting a national application; 

(b) 

its decisions revoking decisions granting a national application; 

(c) 

its decisions amending decisions granting a national application; 

(d) 

its  decisions  extending  the  period  during  which  the  customs  authorities  are  to  take 
action. 

2. 

The  competent  customs  department  to  which  a  Union  application  has  been  submitted  shall 
forward the following decisions to the competent customs department of the Member State or 
Member States indicated in the Union application: 

(a)  decisions granting a Union application; 

(b)  decisions revoking decisions granting a Union application; 

(c)  decisions amending decisions granting a Union application; 

(d)  decisions  extending  or  refusing  to  extend  the  period  during  which  the  customs 

authorities are to take action; 

(e)  decisions suspending the actions of the customs authorities under Article 15(2). 

The competent customs department of the Member State(s) indicated in the Union application 
shall thereafter immediately forward those decisions to their customs offices. 

3. 

Once  the  central  database  of  the  Commission  referred  to  in  Article  31(3)  is  in  place,  all 
exchanges of data on decisions concerning applications for action, accompanying documents 
and notifications between the customs authorities of the Member States shall be made via that 
database. 

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Article 14 

Notification obligations of the holder of the decision granting the application 

The holder of the decision granting the application shall notify the competent customs department that 
adopted that decision of any of the following: 

(a) 

(b) 

an intellectual property right covered by his/her application ceases to have effect; 

the  holder  of  the  decision  ceases  for  other  reasons  to  be  the  person  entitled  to  submit  the 
application; 

(c) 

modifications to the information required by Article 6(3). 

Article 15  

Failure of the holder of the decision granting the application to fulfil his/her obligations 

1. 

2. 

Where the holder of the decision granting the application uses the information provided by the 
customs  authorities  for  purposes  other  than  those  provided  for  in  Article  19,  the  competent 
customs department may: 

(a) 

suspend the decision granting the application in the Member State where the information 
was provided or used until the expiry of the period during which the customs authorities 
are to take action ; 

(b) 

refuse to extend the period during which the customs authorities are to take action. 

The  competent  customs  department  may  decide  to  suspend  the  actions  of  the  customs 
authorities  until  the  expiry  of  the  period  during  which  those  authorities  are  to  take  action, 
where the holder of the decision: 

(a) 

does not fulfil his/her notification obligations under Article 14; 

(b)  does not comply with the requirements of Article 18(2) on returning samples; 

(c) 

does not fulfil his/her obligations under Article 27(1) and (3) with respect to costs and 
translation; 

(d)  does not initiate proceedings as provided for in Articles 20(1), 23(4) or 24(9). 

In  the  case  of  a  Union  application,  the  decision  to  suspend  the  actions  of  the  customs 
authorities shall have effect only in the Member State where such decision is taken. 

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CHAPTER III 

PROVISIONS GOVERNING ACTION BY THE CUSTOMS 
AUTHORITIES 

Section 1 

SUSPENSION OF THE RELEASE OR DETENTION OF GOODS SUSPECTED OF INFRINGING AN 
INTELLECTUAL PROPERTY RIGHT 

Suspension of the release or detention of the goods following the grant of an application  

Article 16 

1. 

2. 

3. 

4. 

5. 

Where the customs authorities of a Member State identify, in one of the situations referred to 
in  Article  1(1),  goods  suspected  of  infringing  an  intellectual  property  right  covered  by  a 
decision granting an application for action, they shall take a decision to suspend the release of 
the goods or to detain them. 

Before adopting the decision of suspension of release or detention of the goods, the customs 
authorities  may  ask  the  holder  of  the  decision  granting  the  application  to  provide  them  with 
any relevant information. The customs authorities may also provide the holder of the decision 
with  information  about  the  actual  or  supposed  number  of  items,  their  nature  and  images  of 
those items as appropriate. 

Before adopting the decision of suspension of release or detention of the goods, the customs 
authorities shall, communicate their intention to the declarant or, in cases where goods are to 
be detained, the holder of the goods. The declarant or the holder of the goods shall be given 
the  opportunity  to  express  his/her  views  within  three  working  days  of  dispatch  of  that 
communication. 

The customs authorities shall notify the holder of the decision granting the application and the 
declarant  or  holder  of  the  goods  of  their  decision  to  suspend  the  release  of  the  goods  or  to 
detain them within one working day of the adoption of their decision. 

The notification to the declarant or holder of the goods shall include information on the legal 
consequences provided by Article 20 with respect to other goods than counterfeit and pirated 
goods and by Article 23 with respect to counterfeit and pirated goods. 

The customs authorities shall inform the holder of the decision granting the application and the 
declarant  or  holder  of  the  goods  of  the  actual  or  estimated  quantity,  the  actual  or  supposed 
nature  of the goods,  including images of those items as appropriate, whose release has been 
suspended or which have been detained. 

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6. 

Where several persons are considered to be holder of the goods, the customs authorities shall 
not be obliged to inform more than one person. 

1. 

2. 

3. 

4. 

5. 

Suspension of the release or detention of the goods without the grant of an application  

Article 17 

Where the customs authorities identify, in the course of action in one of the situations referred 
to  in  Article  1(1),  goods  suspected  of  infringing  an  intellectual  property  right,  they  may 
suspend  the  release  of  those  goods  or  detain  them  before  having  been  notified  of  a  decision 
granting an application with respect to those goods. 

Before adopting the decision of suspension of release or detention of the goods, the customs 
authorities may, without disclosing any information other than the actual or supposed number 
of items, their nature and images of those items as appropriate, request any person entitled to 
submit  an  application  concerning  the  alleged  infringement  of  intellectual  property  rights  to 
provide them with any relevant information. 

Before adopting a decision to suspend the release of the goods or to detain them, the customs 
authorities shall communicate their intention to the declarant or, in cases where goods are to 
be detained, to the holder of the goods. The declarant or the holder of the goods shall be given 
the  opportunity  to  express  his/her  views  within  three  working  days  of  dispatch  of  that 
communication. 

The customs authorities shall notify the suspension of the release or the detention of the goods 
to  any  person  entitled  to  submit  an  application  concerning  the  alleged  infringement  of 
intellectual property rights within one working day of the suspension of the release or of the 
detention of the goods. 

The  customs  authorities  shall  grant  the  release  of  the  goods  or  put  an  end  to  their  detention 
immediately after completion of all customs formalities in the following cases: 

(a)  where they have not identified any person entitled to submit an application concerning 
the alleged infringement of intellectual property rights within one working day from the 
suspension of the release or the detention of the goods; 

(b)  where they have not received or have rejected an application in accordance with Article 

6(5). 

The customs authorities shall notify the declarant or holder of the goods of their decision to 
suspend the release of the goods or to detain them within one working day of the adoption of 
their decision. 

6. 

This Article shall not apply to perishable goods. 

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Article 18 

Inspection and sampling of goods whose release has been suspended or which have been detained 

1. 

2. 

3. 

4. 

The customs authorities shall give the holder of the decision granting the application and the 
declarant or holder of the goods the opportunity to inspect the goods whose release has been 
suspended or which have been detained. 

The  customs  authorities  may  take  samples  and  may  provide  samples  to  the  holder  of  the 
decision granting the application, at his/her request, strictly for the purposes of analysis and to 
facilitate the subsequent procedure in relation to counterfeit and pirated goods. Any analysis of 
those samples shall be carried out under the sole responsibility of the holder of the decision 
granting the application. 

Where  circumstances  allow,  the  samples  shall  be  returned  on  completion  of  the  technical 
analysis and before the goods are released or their detention is ended. 

The customs authorities shall, upon request and if known, provide the holder of the decision 
granting  the  application  with  the  names  and  addresses  of  the  consignee,  the  consignor,  the 
declarant  or  the  holder  of  the  goods,  the  customs  procedure  and  the  origin,  provenance  and 
destination of goods suspected of infringing an intellectual property right. 

The conditions of storage of the goods during the period of suspension of release or detention, 
including provisions regarding the costs, shall be determined by each Member State. 

Article 19 

Permitted use of certain information by the holder of the decision granting the application 

Where  the  holder  of  the  decision  granting  the  application  has  received  the  information  referred  to  in 
Article 18(3), the holder may only use that information for the following purposes: 

(a) 

(b) 

to initiate proceedings to determine whether an intellectual property right has been infringed; 

to  seek  compensation  from  the  infringer  or  other  persons  where  goods  are  destroyed  in 
accordance with Articles 20(3) or 23(3). 

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Section 2 

INITIATION OF PROCEEDINGS AND ANTICIPATED RELEASE OF GOODS 

Article 20 

Initiation of proceedings 

1. 

2. 

3. 

4. 

Where  goods  other  than  those  covered  by  Articles  23  and  24  are  suspected  of  infringing  an 
intellectual  property  right,  the  holder  of  the  decision  granting  the  application  shall  initiate 
proceedings to determine whether an intellectual property right has been infringed within 10 
working days of dispatch of the decision to suspend the release of the goods or to detain them. 

In  the  case  of  perishable  goods  suspected  of  infringing  an  intellectual  property  right,  the 
period for initiating the proceedings referred to in the first subparagraph shall be three working 
days of dispatch of the decision to suspend the release of the goods or to detain them. 

The  customs  authorities  shall  grant  the  release  of  the  goods  or  put  an  end  to  their  detention 
immediately after completion of all customs formalities where they have not been informed by 
the holder of the decision granting the application, within the period referred to in paragraph 1, 
of any of the following: 

(a) 

(b) 

the initiation of proceedings to determine whether an intellectual property right has been 
infringed; 

a written agreement between the holder of the decision granting the application and the 
holder of the goods to abandon the goods for destruction. 

In the case of an agreement to abandon the goods for destruction referred to in paragraph 2(b), 
the  destruction  shall  be  carried  out  under  customs  control  at  the  expense  and  under  the 
responsibility of the holder of the decision granting the application, unless otherwise specified 
in the legislation of the Member State where the goods are destroyed. 

The  customs  authorities  may  extend  the  period  referred  to  in  the  first  subparagraph  of 
paragraph  1  by  a  maximum  of  10  working  days  upon  request  by  the  holder  of  the  decision 
granting the application in appropriate cases. 

In the case of perishable goods, the period referred to in the second subparagraph of paragraph 
1 shall not be extended. 

Article 21 

Anticipated release of goods 

1. 

Where the customs authorities have been notified of the initiation of proceedings to determine 
whether a design, patent, utility model or plant variety right has been infringed and the period 

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provided for  in Article 20 has expired,  the declarant  or holder of the goods may  request the 
customs authorities to release the goods or put an end to their detention.  

The customs authorities shall release the goods or put an end to their detention only where all 
the following conditions are fulfilled: 

(a) 

the declarant or holder of the goods has provided a security; 

(b) 

the authority competent for determining whether an intellectual property right has been 
infringed has not authorised precautionary measures; 

(c) 

all customs formalities have been completed. 

2. 

3. 

4. 

The security referred to in paragraph 1(a) shall be provided by the declarant or holder of the 
goods within 10 working days following the date on which the customs authorities receive the 
request referred to in paragraph 1. 

The  customs  authorities  shall  set  the  security  at  an  amount  sufficiently  high  to  protect  the 
interests of the holder of the decision granting the application. 

The provision of the security shall not affect the other legal remedies available to the holder of 
the decision granting the application. 

Article 22 

Prohibited customs-approved treatment and use of goods abandoned for destruction 

1. 

Goods abandoned for destruction under Articles 20, 23 or 24 shall not be: 

(a) 

released for free circulation; 

(b)  brought out of the customs territory of the Union; 

(c) 

exported; 

(d) 

re-exported; 

(e) 

placed under a suspensive procedure; 

(f) 

placed in a free zone or free warehouse. 

2. 

The  customs  authorities  may  allow  the  goods  referred  to  in  paragraph  1  to  be  moved  under 
customs supervision between different places within the customs territory of the Union with a 
view to their destruction under customs control. 

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Section 3 

COUNTERFEIT AND PIRATED GOODS 

Article 23 

Destruction and initiation of proceedings 

1. 

Goods suspected of being counterfeit goods or pirated goods may be destroyed under customs 
control, without there being any need to determine whether an intellectual property right has 
been infringed under the law of the Member State where the goods are found, where all of the 
following conditions are fulfilled: 

(a) 

(b) 

the holder of the decision granting the application has informed the customs authorities 
in writing of his/her agreement to the destruction of the goods within 10 working days, 
or  three  working  days  in  the  case  of  perishable  goods,  of  dispatch  of  the  decision  to 
suspend the release of the goods or to detain them; 

the declarant or holder of the goods has confirmed in writing to the customs authorities 
his/her  agreement  to  the  destruction  of  the  goods  within  10  working  days,  or  three 
working days in the case of perishable goods, of dispatch of the decision to suspend the 
release of the goods or to detain them. 

Where the declarant or holder of the goods has not confirmed his/her agreement to destruction 
within the periods set out in paragraph 1(b) nor notified his/her opposition to destruction to the 
customs authorities that adopted the decision to suspend the release of the goods or to detain 
them, the customs authorities may deem that the declarant or holder of the goods has agreed to 
their destruction. 

The  customs  authorities  shall  inform  the  holder  of  the  decision  granting  the  application 
accordingly. 

Where the declarant or holder of the goods objects to the destruction of the goods, the customs 
authorities shall inform the holder of the decision granting the application of such objection. 

The  destruction  shall  be  carried  out  under  customs  control,  at  the  expense  and  under  the 
responsibility of the holder of the decision granting the application, unless otherwise specified 
in the legislation of the Member State where the goods are destroyed. Samples may be taken 
prior to destruction. 

Where there is no agreement to destruction, the holder of the decision granting the application 
shall  initiate  proceedings  to  determine  whether  an  intellectual  property  right  has  been 
infringed  within 10 working days, or three  working days in the case of perishable goods, of 
dispatch of the decision to suspend the release of the goods or to detain them. 

2. 

3. 

4. 

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The  customs  authorities  may  extend  the  periods  referred  to  in  the  first  subparagraph  by  a 
maximum  of  10  working  days  upon  request  by  the  holder  of  the  decision  granting  the 
application in appropriate cases. 

In the case of perishable goods those periods shall not be extended. 

5. 

The customs authorities shall grant the release of the goods or put an end to their detention, as 
appropriate,  immediately  after  completion  of  all  customs  formalities,  where  they  have  not 
received  information  from  the  holder  of  the  decision  granting  the  application  on  any  of  the 
following: 

(a)  his/her agreement to the destruction within the periods referred to in paragraph 1(a); 

(b) 

the initiation of proceedings to determine whether an intellectual property right has been 
infringed within the period referred to in paragraph 4. 

Article 24 

Specific procedure for the destruction of goods in small consignments 

1. 

This Article applies to goods where all of the following conditions are fulfilled: 

(a)  goods suspected of being counterfeit or pirated goods;  

(b)  goods that are not perishable goods; 

(c)  goods covered by a decision granting an application;  

(d)  goods transported in small consignments. 

Article 16 (3), (4) and (5) and Article 18(2) shall not apply. 

When notifying, within one working day after its adoption, the decision to suspend the release 
of the goods or to detain them, the customs authorities shall inform the declarant or holder of 
the goods of the following:  

(a) 

the customs authorities' intention to destroy the goods,  

(b) 

the rights of the declarant or holder of the goods under paragraphs 4 and 5.  

The declarant or holder of the goods shall be given the opportunity to express his/her point of 
view within 20 working days of dispatch of the decision to suspend the release of the goods or 
to detain them. 

The  goods  concerned  may  be  destroyed  where,  within  20  working  days  of  dispatch  of  the 
decision to suspend the release of the goods or to detain them, the declarant or holder of the 
goods  has  confirmed  to  the  customs  authorities  his/her  agreement  to  the  destruction  of  the 
goods.  

2. 

3. 

4. 

5. 

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6. 

7. 

8. 

9. 

Where the declarant or holder of the goods has not confirmed his/her agreement to destruction 
within the period referred to in paragraph 5, nor notified his/her opposition to destruction to 
the customs office that adopted the decision to suspend the release of the goods or to detain 
them, the customs authorities may deem that the declarant or holder of the goods has agreed to 
their destruction.  

The destruction shall be carried out under customs control and at the expense of the customs 
authorities. 

Where the declarant or holder of the goods objects to the destruction of the goods, the customs 
authorities  shall  inform  the  holder  of  the  decision  granting  the  application  of  such  objection 
and  of  the  number  of  items  and  their  nature,  including  images  of  those  items  where 
appropriate.  

The customs authorities shall grant the release of the goods or put an end to their detention, as 
appropriate,  immediately  after  completion  of  all  customs  formalities  where  they  have  not 
received information from the holder of the decision granting the application on the initiation 
of  proceedings  to  determine  whether  an  intellectual  property  right  has  been  infringed  within 
10 working days of dispatch of the information referred to in paragraph 8. 

10. 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with  Article  30 
concerning the thresholds that define small consignments for the purpose of this Article. 

CHAPTER IV 

LIABILITY, COSTS AND PENALTIES 

Article 25 

Liability of the customs authorities 

Without  prejudice  to  the  applicable  legislation  of  the  Member  States,  the  decision  granting  an 
application  shall  not  entitle  the  holder  of  that  decision  to  compensation  in  the  event  that  goods 
suspected  of  infringing  an  intellectual  property  right  are  not  detected  by  a  customs  office  and  are 
released, or no action is taken to detain them. 

Article 26 

Liability of the holder of the decision granting the application 

Where  a  procedure  duly  initiated  pursuant  to  this  Regulation  is  discontinued  owing  to  an  act  or 
omission  on  the  part  of  the  holder  of  the  decision  granting  the  application  or  where  the  goods  in 
question are subsequently found not to infringe an intellectual property right, the holder of the decision 
granting the application shall be liable towards the persons involved in a situation referred to in Article 
1(1) in accordance with the legislation of the Member State where the goods were found. 

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Article 27 

Costs 

1. 

2. 

3. 

Where requested by the customs authorities, the holder of the decision granting the application 
shall  reimburse  all  costs  incurred  by  the  customs  administration  in  keeping  goods  under 
customs  supervision  in  accordance  with  Articles  16  and  17  and  in  destroying  goods  in 
accordance with Articles 20 and 23. 

This Article shall be without prejudice to the right of the holder of the decision granting the 
application to seek  compensation  from the infringer  or other persons in accordance with the 
legislation of the Member State where the goods were found. 

The holder of a decision granting a Union application shall provide and pay for any translation 
required by the customs authorities which are to take action concerning the goods suspected of 
infringing an intellectual property right. 

Article 28 

Administrative sanctions 

The Member States shall lay down the rules on administrative sanctions applicable to infringements of 
the  provisions  of  this  Regulation  and  shall  take  all  measures  necessary  to  ensure  that  they  are 
implemented.  The  administrative  sanctions  provided  for  must  be  effective,  proportionate  and 
dissuasive.  

The Member States shall notify those provisions to the Commission within six months from the date of 
entry  into  force  of  this  Regulation  and  shall  notify  it  without  delay  of  any  subsequent  amendment 
affecting them. 

CHAPTER V 

COMMITTEE, DELEGATION AND FINAL PROVISIONS 

Article 29 

Committee procedure 

1. 

2. 

The  Commission  shall  be  assisted  by  the  Customs  Code  Committee  established  by  Articles 
247a and 248a of Council Regulation (EC) No 2913/92. That committee shall be a committee 
within the meaning of Regulation (EU) No 182/2011. 

Where  reference  is  made  to  this  paragraph,  Article  4  of  Regulation (EU)  No 182/2011  shall 
apply. 

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Article 30 

Exercise of the delegation 

1. 

2. 

3. 

4. 

5. 

The power to adopt delegated acts is conferred on the Commission subject to the conditions 
laid down in this Article. 

The delegation of power referred to in Article 24(10) shall be conferred for an indeterminate 
period of time from the date of entry into force of this Regulation. 

The  delegation  of  powers  referred  to  in  Article  24(10)  may  be  revoked  at  any  time  by  the 
European  Parliament  or  by  the  Council.  A  decision  of  revocation  shall  put  an  end  to  the 
delegation  of  the  power  specified  in  that  decision.  It  shall  take  effect  the  day  following  the 
publication  of  the  decision  in  the  Official  Journal  of  the  European  Union  or  at  a  later  date 
specified therein. It shall not affect the validity of any delegated acts already in force. 

As  soon  as  it  adopts  a  delegated  act,  the  Commission  shall  notify  it  simultaneously  to  the 
European Parliament and to the Council. 

A delegated act adopted pursuant to Article 24(10) shall enter into force only if no objection 
has  been  expressed  either  by  the  European  Parliament  or  the  Council  within  a  period  of  2 
months of notification of that act to the European Parliament and the Council or if, before the 
expiry  of  that  period  the  European  Parliament  and  the  Council  have  both  informed  the 
Commission  that  they  will  not  object.  That  period  shall  be  extended  by  2  months  on  the 
initiative of the European Parliament or the Council. 

Article 31 

Exchange of data on decisions relating to application for action between the Member States and 
the Commission 

1. 

The competent customs departments shall notify the Commission of the following: 

(a) 

applications for action, including any photograph(s), image(s), brochure(s); 

(b)  decisions granting applications; 

(c) 

any  decisions  extending  the  period  during  which  the  customs  authorities  are  to  take 
action or decisions revoking the decision granting the application or amending it; 

(d) 

any suspension of a decision granting the application. 

2. 

3. 

Without  prejudice  to  the  provisions  of  Article  24(g)  of  Council  Regulation (EC)  No 515/97, 
where the release of the goods is suspended or the goods are detained, the customs authorities 
shall  transmit  to  the  Commission  any  relevant  information,  including  details  on  the  goods, 
intellectual property right, procedures and transport. 

All information referred to in paragraphs 1 and 2 shall be stored in a central database of the 
Commission. 

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4. 

The  Commission  shall  make  the  relevant  information  referred  to  in  paragraphs  1  and  2 
available to the customs authorities of the Member States in an electronic form. 

Article 32 

Data protection provisions 

1. 

2. 

The processing of personal data in the central database of the Commission shall be carried out 
in accordance with Regulation (EC) No 45/200126 and under the supervision of the European 
Data Protection Supervisor. 

Processing of personal data by the competent authorities in the Member States shall be carried 
out  in  accordance  with  Directive 95/46/EC27  and  under  the  supervision  of  the  public 
independent authority of the Member State referred to in Article 28 of this Directive. 

Article 33 

Periods, dates and time limits  

The rules applicable to periods, dates and time limits set out in Regulation (EEC, Euratom) No 1182/71 
of the Council28 shall apply. 

Article 34 

Mutual administrative assistance 

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

Article 35 

Repeal 

Regulation (EC) No 1383/2003 is repealed with effect from XX-XX-20XX. 

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

Article 36 

Transitional provisions 

26 
27 
28 

OJ L 8, 12.1.2001, p. 1. 
OJ L 281, 23.11.1995, p. 31. 
OJ L 124, 8.6.1971, p. 1. 

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Applications  for  action  granted  in  accordance  with  Council  Regulation (EC)  No 1383/2003  shall 
remain valid for the period specified in the decision granting the application during which the customs 
authorities are to take action and shall not be extended. 

Article 37 

Entry into force and application 

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

However, Article 24(1) to (9) shall apply from XX.XX.20XX.  

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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