Proposal for a COUNCIL DECISION on the conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America
Date: 2011-06-24
Institutions: European Commission
Subjects: industrial counterfeiting, multilateral agreement, trade agreement

EUROPEAN COMMISSION 

Brussels, 24.6.2011 
COM(2011) 380 final 

2011/0167 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Anti-Counterfeiting Trade Agreement between the European 
Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the 
United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of 
Singapore, the Swiss Confederation and the United States of America 

 
 
  
 
1. 

2. 

3. 

4. 

5. 

6. 

EXPLANATORY MEMORANDUM 

ACTA aims to establish a comprehensive international framework that will assist the 
EU in its efforts to effectively combat the infringement of intellectual property rights 
(IPR).  This  infringement  undermines  legitimate  trade  and  the  EU's  competitiveness 
with  the  subsequent  negative  repercussions  on  growth  and  jobs.  ACTA  includes 
state-of-the-art provisions on the enforcement of IPR, including provisions on civil, 
criminal,  border  and  digital  environment  enforcement  measures,  robust  cooperation 
mechanisms  among  ACTA  Parties  to  assist  in  their  enforcement  efforts,  and  the 
establishment of best practices for effective IPR enforcement. 

Although  ACTA  does  not  modify  the  EU  acquis,  because  EU  law  is  already 
considerably more advanced than the current international standards, it will introduce 
a  new  international  standard,  building  upon  the  World  Trade  Organisation's  TRIPS 
Agreement (adopted in 1994). Thus, it will provide benefits for EU exporting right-
holders  operating  in  the  global  market  who  currently  suffer  systematic  and 
widespread  infringements  of  their  copyrights,  trademarks,  patents,  designs  and 
geographical indications abroad. 

At the same time, ACTA is a balanced agreement, because it fully respects the rights 
of  citizens  and  the  concerns  of  important  stakeholders  such  as  consumers,  internet 
providers and partners in developing countries.  

Further to the adoption of the negotiating directives by the Council on 14 April 2008, 
negotiations  were  launched  on  3  June  2008.  The  agreement  was  concluded  on  15 
November  2010  and  the  text  was  initialled  on  25  November,  after  11  rounds  of 
negotiations.  

The EU Member States were kept informed of the negotiations orally and in writing 
via  the  Council's  Trade  Policy  Committee.  The  rotating  EU  Presidency  led  the 
negotiations  on  matters  of  penal  enforcement,  based  on  positions  unanimously 
agreed  and  adopted  by  Council  in  COREPER.  The  European  Parliament  has  also 
been  kept  regularly  informed  on  developments  via  its  Committee  on  International 
Trade (INTA) and by Commissioner De Gucht in three plenary debates in 2010. On 
24  November  2010,  the  European  Parliament  adopted  a  Resolution  supporting 
ACTA. 

ACTA contains a number of provisions on criminal enforcement that fall within the 
scope  of  Article  83(2)  TFEU.  Those  parts  of  the  agreement,  in  distinction  to  those 
parts  falling  under  Article  207,  fall  under  the  area  of  shared  competences  (Article 
2(2)  TFEU).  Where  a  matter  falls  under  shared  competence  either  the  European 
Union or Member States may legislate and adopt legally binding acts. Regarding the 
signature  and  conclusion  of  ACTA,  the  Commission  has  opted  not  to  propose  that 
the  European  Union  exercise  its  potential  competence  in  the  area  of  criminal 
enforcement  pursuant  to  Article  83(2)  TFEU.  The  Commission  considers  this 
appropriate  because  it  has  never  been  the  intention,  as  regards  the  negotiation  of 
ACTA to modify the EU acquis or to harmonise EU legislation as regards criminal 
enforcement of intellectual property rights. For this reason, the Commission proposes 
that ACTA be signed and concluded both by the EU and by all the Member States. 

EN 

2 

   EN 

 
7. 

The  Commission's  position  as  regards  ACTA  and  Article  83(2)  TFEU  is  without 
prejudice  to  the  position  of  the  Commission  on  future  exercise  by  the  EU  of  the 
shared competences foreseen by Article 83(2) TFEU as regards other initiatives. 

EN 

3 

   EN 

 
2011/0167 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Anti-Counterfeiting Trade Agreement between the European 
Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the 
United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of 
Singapore, the Swiss Confederation and the United States of America 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207 (4), 1st subparagraph, in conjunction with Article 218(6)(a)(v) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament1, 

Whereas: 

(1) 

(2) 

On  14  April  2008  the  Council  authorised  the  Commission  to  negotiate  a  plurilateral 
anti-counterfeiting  trade  agreement,  on  behalf  of  the  European  Union  and  its 
Member States. 

Those negotiations have been concluded and an Anti-Counterfeiting Trade Agreement 
between  the  European  Union  and  its  Member  States,  Australia,  Canada,  Japan,  the 
Republic  of  Korea,  the  United  Mexican  States,  the  Kingdom  of  Morocco,  New 
Zealand, the Republic of Singapore, the Swiss Confederation and the United States of 
America, was initialled on 25 November 2010. 

(3) 

In  accordance  with  Council  Decision  No  …/2010/EU  of  …2  the  Agreement  was 
signed on behalf of the Union on …. 

(4) 

The Agreement should be approved, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  Anti-Counterfeiting  Trade  Agreement  between  the  European  Union  and  its  Member 
States,  Australia,  Canada,  Japan,  the  Republic  of  Korea,  the  United  Mexican  States,  the 

1 
2 

OJ C , , p. . 
OJ: please insert the number and publication reference of the decision. 

EN 

4 

   EN 

 
                                                 
Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and 
the United States of America,3 is hereby approved on behalf of the European Union. 

The text of the Agreement to be concluded is attached to this Decision. 

Article 2 

The President of the Council shall designate the person empowered to proceed, on behalf of 
the European Union, to the deposit of the instrument of approval of the Agreement, in order to 
express the consent of the European Union to be bound by the Agreement. 

Article 3 

This  Decision  shall  enter  into  force  on  the  day  of  its  adoption.  It  shall  be  published  in  the 
Official Journal of the European Union. 

The date of entry into force of the Agreement shall be published in the Official Journal of the 
European Union. 

Done at Brussels, 

For the Council 
The President 

3 

OJ: please insert in footnote 1 the publication reference of the Agreement. 

EN 

5 

   EN 

 
 
 
                                                 
ANNEX 

Anti-Counterfeiting Trade Agreement between the European Union and its Member States, 
Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of 
Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United 
States of America 

The Parties to this Agreement,  

Noting  that  effective  enforcement  of  intellectual  property  rights  is  critical  to  sustaining  economic 
growth across all industries and globally; 

Noting  further  that  the  proliferation  of  counterfeit  and  pirated  goods,  as  well  as  of  services  that 
distribute  infringing  material,  undermines  legitimate  trade  and  sustainable  development  of  the  world 
economy,  causes  significant  financial  losses  for  right  holders  and  for  legitimate  businesses,  and,  in 
some cases, provides a source of revenue for organized crime and otherwise poses risks to the public; 

Desiring to combat such proliferation through enhanced international cooperation and more effective 
international enforcement;  

Intending  to  provide  effective  and  appropriate  means,  complementing  the  TRIPS  Agreement,  for  the 
enforcement  of  intellectual  property  rights,  taking  into  account  differences  in  their  respective  legal 
systems and practices;  

Desiring  to  ensure  that  measures  and  procedures  to  enforce  intellectual  property  rights  do  not 
themselves become barriers to legitimate trade;  

Desiring to address the problem of infringement of intellectual property rights, including infringement 
taking  place  in  the  digital  environment,  in  particular  with  respect  to  copyright  or  related  rights,  in  a 
manner that balances the rights and interests of the relevant right holders, service providers, and users;  

Desiring  to  promote  cooperation  between  service  providers  and  right  holders  to  address  relevant 
infringements in the digital environment;  

Desiring  that  this  Agreement  operates  in  a  manner  mutually  supportive  of  international  enforcement 
work and cooperation conducted within relevant international organizations;  

Recognizing  the  principles  set  forth  in  the  Doha  Declaration  on  the  TRIPS  Agreement  and  Public 
Health, adopted on 14 November 2001, at the Fourth WTO Ministerial Conference; 

Hereby agree as follows:

EN 

6 

   EN 

 
Chapter I: Initial Provisions and General Definitions 

SECTION 1: INITIAL PROVISIONS 

Article 1: Relation to Other Agreements 

Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party 
under existing agreements, including the TRIPS Agreement.  

Article 2: Nature and Scope of Obligations  

1. 

2. 

3. 

Each Party shall give effect to the provisions of this Agreement. A Party may implement in its 
law  more  extensive  enforcement  of  intellectual  property  rights  than  is  required  by  this 
Agreement,  provided  that  such  enforcement  does  not  contravene  the  provisions  of  this 
Agreement. Each Party shall be free to determine the appropriate method of implementing the 
provisions of this Agreement within its own legal system and practice. 

Nothing in this Agreement creates any obligation with respect to the distribution of resources 
as between enforcement of intellectual property rights and enforcement of law in general. 

The  objectives  and  principles  set  forth  in  Part  I  of  the  TRIPS  Agreement,  in  particular  in 
Articles 7 and 8, shall apply, mutatis mutandis, to this Agreement. 

Article 3: Relation to Standards concerning the Availability and Scope of Intellectual Property Rights 

1. 

2. 

This  Agreement  shall  be  without  prejudice  to  provisions  in  a  Party’s  law  governing  the 
availability, acquisition, scope, and maintenance of intellectual property rights. 

This Agreement does not create any obligation on a Party to apply measures where a right in 
intellectual property is not protected under its laws and regulations. 

Article 4: Privacy and Disclosure of Information 

1. 

Nothing in this Agreement shall require a Party to disclose: 

a) 

b) 

c) 

information,  the  disclosure  of  which  would  be  contrary  to  its  law,  including  laws 
protecting privacy rights, or international agreements to which it is party; 

confidential  information,  the  disclosure  of  which  would  impede  law  enforcement  or 
otherwise be contrary to the public interest; or 

confidential  information,  the  disclosure  of  which  would  prejudice  the  legitimate 
commercial interests of particular enterprises, public or private.  

EN 

7 

   EN 

 
 
2. 

When a Party provides written information pursuant to the provisions of this Agreement, the 
Party receiving the information shall, subject to its law and practice, refrain from disclosing or 
using  the information  for a purpose other than that  for  which  the  information  was  provided, 
except with the prior consent of the Party providing the information.  

SECTION 2: GENERAL DEFINITIONS 

Article 5: General Definitions 

For the purposes of this Agreement, unless otherwise specified: 

a)  ACTA means the Anti-Counterfeiting Trade Agreement; 

b)  Committee  means  the  ACTA  Committee  established  under  Chapter  V  (Institutional 

Arrangements); 

c) 

d) 

e) 

f) 

g) 

h) 

i) 

j) 

k) 

competent  authorities  includes  the  appropriate  judicial,  administrative,  or  law 
enforcement authorities under a Party’s law;  

counterfeit trademark goods means any goods, including packaging, bearing without 
authorization  a  trademark  which  is  identical  to  the  trademark  validly  registered  in 
respect  of  such  goods,  or  which  cannot  be  distinguished  in  its  essential  aspects  from 
such a trademark, and which thereby infringes the rights of the owner of the trademark 
in question under the law of the country in which the procedures set forth in Chapter II 
(Legal Framework for Enforcement of Intellectual Property Rights) are invoked;  

country  is  to  be  understood  to  have  the  same  meaning  as  that  set  forth  in  the 
Explanatory Notes to the WTO Agreement; 

customs transit means the customs procedure under which goods are transported under 
customs control from one customs office to another;  

days means calendar days; 

intellectual property refers to all categories of intellectual property that are the subject 
of Sections 1 through 7 of Part II of the TRIPS Agreement;  

in-transit goods means goods under customs transit or transhipment; 

person means a natural person or a legal person; 

pirated copyright goods means any goods which are copies made without the consent 
of  the  right  holder  or  person  duly  authorized  by  the  right  holder  in  the  country  of 
production and which are made directly or indirectly from an article where the making 
of  that  copy  would  have  constituted  an  infringement  of  a  copyright  or  a  related  right 
under  the  law  of  the  country  in  which  the  procedures  set  forth  in  Chapter  II  (Legal 
Framework for Enforcement of Intellectual Property Rights) are invoked; 

EN 

8 

   EN 

 
l) 

m) 

n) 

right holder includes a federation or an association having the legal standing to assert 
rights in intellectual property; 

territory,  for  the  purposes  of  Section  3  (Border  Measures)  of  Chapter  II  (Legal 
Framework  for  Enforcement  of  Intellectual  Property  Rights),  means  the  customs 
territory and all free zones4 of a Party; 

transhipment  means  the  customs  procedure  under  which  goods  are  transferred  under 
customs  control  from  the  importing  means  of  transport  to  the  exporting  means  of 
transport within the area of one customs office which is the office of both importation 
and exportation; 

o)  TRIPS  Agreement  means  the  Agreement  on  Trade-Related  Aspects  of  Intellectual 

Property Rights, contained in Annex 1C to the WTO Agreement;  

p)  WTO means the World Trade Organization; and  

q)  WTO  Agreement  means  the  Marrakesh  Agreement  Establishing  the  World  Trade 

Organization, done on 15 April 1994. 

Chapter II: Legal Framework For Enforcement of Intellectual Property 
Rights 

SECTION 1: GENERAL OBLIGATIONS 

1. 

2. 

3. 

4 

Article 6: General Obligations with Respect to Enforcement 

Each Party shall ensure that enforcement procedures are available under its law so as to permit 
effective action against any act of infringement of intellectual property rights covered by this 
Agreement,  including  expeditious  remedies  to  prevent  infringements  and  remedies  which 
constitute  a  deterrent  to  further  infringements.  These  procedures  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. 

Procedures adopted, maintained, or applied to implement the provisions of this Chapter shall 
be  fair  and  equitable,  and  shall  provide  for  the  rights  of  all  participants  subject  to  such 
procedures  to  be  appropriately  protected.  These  procedures  shall  not  be  unnecessarily 
complicated or costly, or entail unreasonable time-limits or unwarranted delays. 

In implementing the provisions of this Chapter, each Party shall take into account the need for 
proportionality between the seriousness of the infringement, the interests of third parties, and 
the applicable measures, remedies and penalties.  

For  greater  certainty,  the  Parties  acknowledge  that free  zone  means  a  part  of  the  territory  of  a  Party  where  any 
goods  introduced  are  generally  regarded,  insofar  as  import  duties  and  taxes  are  concerned,  as  being  outside  the 
customs territory. 

EN 

9 

   EN 

 
                                                 
4. 

No provision of this Chapter shall be construed to require a Party to make its officials subject 
to liability for acts undertaken in the performance of their official duties. 

SECTION 2: CIVIL ENFORCEMENT

5 

Article 7: Availability of Civil Procedures 

1. 

2. 

1. 

2. 

1. 

Each  Party  shall  make  available  to  right  holders  civil  judicial  procedures  concerning  the 
enforcement of any intellectual property right as specified in this Section.  

To the extent that any civil remedy can be ordered as a result of administrative procedures on 
the merits of a case, each Party shall provide that such procedures shall conform to principles 
equivalent in substance to those set forth in this Section.  

Article 8: Injunctions 

Each  Party  shall  provide  that,  in  civil  judicial  proceedings  concerning  the  enforcement  of 
intellectual property rights, its judicial authorities have the authority to issue an order against a 
party  to  desist  from  an  infringement,  and  inter  alia,  an  order  to  that  party  or,  where 
appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to 
prevent goods that involve the infringement of an intellectual property right from entering into 
the channels of commerce.  

Notwithstanding the other provisions of this Section, a Party may limit the remedies available 
against  use  by  governments,  or  by  third  parties  authorized  by  a  government,  without  the 
authorization  of  the  right  holder,  to  the  payment  of  remuneration,  provided  that  the  Party 
complies with the provisions of Part II of the TRIPS Agreement specifically addressing such 
use. In other cases, the remedies under this Section shall apply or, where these remedies are 
inconsistent  with  a  Party’s  law,  declaratory  judgments  and  adequate  compensation  shall  be 
available.  

Article 9: Damages 

Each  Party  shall  provide  that,  in  civil  judicial  proceedings  concerning  the  enforcement  of 
intellectual  property  rights,  its  judicial  authorities  have  the  authority  to  order  the  infringer 
who, knowingly or with reasonable grounds to know, engaged in infringing activity to pay the 
right holder damages adequate to compensate for the injury the right holder has suffered as a 
result  of  the  infringement.  In  determining  the  amount  of  damages  for  infringement  of 
intellectual property rights, a Party’s judicial authorities shall have the authority to consider, 
inter  alia,  any  legitimate  measure  of  value  the  right  holder  submits,  which  may  include  lost 
profits,  the  value  of  the  infringed  goods  or  services  measured  by  the  market  price,  or  the 
suggested retail price.  

5 

A Party may exclude patents and protection of undisclosed information from the scope of this Section. 

EN 

10 

   EN 

 
                                                 
2. 

3. 

4. 

5. 

1. 

2. 

6 

At least in cases of copyright or related rights infringement and trademark counterfeiting, each 
Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority 
to order the infringer to pay the right holder the infringer’s profits that are attributable to the 
infringement. A Party may presume those profits to be the amount of damages referred to in 
paragraph 1. 

At  least  with  respect  to  infringement  of  copyright  or  related  rights  protecting  works, 
phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also 
establish or maintain a system that provides for one or more of the following:  

a) 

b) 

pre-established damages; or  

presumptions6 for determining the amount of damages sufficient to compensate the right 
holder for the harm caused by the infringement; or  

c) 

at least for copyright, additional damages. 

Where  a  Party  provides  the  remedy  referred  to  in  subparagraph  3(a)  or  the  presumptions 
referred to in subparagraph 3(b), it shall ensure that either its judicial authorities or the right 
holder has the right to choose such a remedy or presumptions as an alternative to the remedies 
referred to in paragraphs 1 and 2.  

Each Party shall provide that its judicial authorities, where appropriate, have the authority to 
order,  at  the  conclusion  of  civil  judicial  proceedings  concerning  infringement  of  at  least 
copyright or related rights, or trademarks, that the prevailing party be awarded payment by the 
losing  party  of  court  costs  or  fees  and  appropriate  attorney’s  fees,  or  any  other  expenses  as 
provided for under that Party’s law. 

Article 10: Other Remedies 

At least with respect to pirated copyright goods and counterfeit trademark goods, each Party 
shall  provide  that,  in  civil  judicial  proceedings,  at  the  right  holder’s  request,  its  judicial 
authorities  have  the  authority  to  order  that  such  infringing  goods  be  destroyed,  except  in 
exceptional circumstances, without compensation of any sort.  

Each  Party  shall  further  provide  that  its  judicial  authorities  have  the  authority  to  order  that 
materials  and  implements,  the  predominant  use  of  which  has  been  in  the  manufacture  or 
creation of such infringing goods, be, without undue delay and without compensation of any 
sort,  destroyed  or  disposed  of  outside  the  channels  of  commerce  in  such  a  manner  as  to 
minimize the risks of further infringements.  

The presumptions referred to in subparagraph 3(b) may include a presumption that the amount of damages is: (i) 
the quantity of the goods infringing the right holder’s intellectual property right in question and actually assigned 
to  third  persons,  multiplied  by  the  amount  of  profit  per  unit  of  goods  which  would  have  been  sold  by  the  right 
holder if there had not been the act of infringement; or (ii) a reasonable royalty; or (iii) 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 
authorization to use the intellectual property right in question. 

EN 

11 

   EN 

 
                                                 
3. 

A  Party  may  provide  for  the  remedies  described  in  this  Article  to  be  carried  out  at  the 
infringer’s expense.  

Article 11: Information Related to Infringement 

Without  prejudice  to  its  law  governing  privilege,  the  protection  of  confidentiality  of  information 
sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings 
concerning  the  enforcement  of  intellectual  property  rights,  its  judicial  authorities  have  the  authority, 
upon  a  justified  request  of  the  right  holder,  to  order  the  infringer  or,  in  the  alternative,  the  alleged 
infringer,  to  provide  to  the  right  holder  or  to  the  judicial  authorities,  at  least  for  the  purpose  of 
collecting evidence, relevant information as provided for in its applicable laws and regulations that the 
infringer  or  alleged  infringer  possesses  or  controls.  Such  information  may  include  information 
regarding any person involved in any aspect of the infringement or alleged infringement and regarding 
the means of production or the channels of distribution of the infringing or allegedly infringing goods 
or services, including the identification of third persons alleged to be involved in the  production and 
distribution of such goods or services and of their channels of distribution. 

Article 12: Provisional Measures 

1. 

Each  Party  shall  provide  that  its  judicial  authorities  have  the  authority  to  order  prompt  and 
effective provisional measures: 

a) 

against  a  party  or,  where  appropriate,  a  third  party  over  whom  the  relevant  judicial 
authority  exercises  jurisdiction,  to  prevent  an  infringement  of  any  intellectual  property 
right from occurring, and in particular, to prevent goods that involve the infringement of 
an intellectual property right from entering into the channels of commerce;  

b) 

to preserve relevant evidence in regard to the alleged infringement. 

Each  Party  shall  provide  that  its  judicial  authorities  have  the  authority  to  adopt  provisional 
measures  inaudita  altera  parte  where  appropriate,  in  particular  where  any  delay  is  likely  to 
cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence 
being destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its 
judicial authorities with the authority to act expeditiously on requests for provisional measures 
and to make a decision without undue delay. 

At least in cases of copyright or related rights infringement and trademark counterfeiting, each 
Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority 
to  order  the  seizure  or  other  taking  into  custody  of  suspect  goods,  and  of  materials  and 
implements  relevant  to  the  act  of  infringement,  and,  at  least  for  trademark  counterfeiting, 
documentary evidence, either originals or copies thereof, relevant to the infringement.  

Each  Party  shall  provide  that  its  authorities  have  the  authority  to  require  the  applicant,  with 
respect  to  provisional  measures,  to  provide  any  reasonably  available  evidence  in  order  to 
satisfy  themselves  with  a  sufficient  degree  of  certainty  that  the  applicant’s  right  is  being 
infringed  or  that  such  infringement  is  imminent,  and  to  order  the  applicant  to  provide  a 
security or equivalent assurance sufficient to protect the defendant and to prevent abuse. Such 

2. 

3. 

4. 

EN 

12 

   EN 

 
security or equivalent assurance shall not unreasonably deter recourse to procedures for such 
provisional measures. 

5. 

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  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 these measures.  

SECTION 3: BORDER MEASURES

7, 8 

Article 13: Scope of the Border Measures9 

In  providing,  as  appropriate,  and  consistent  with  its  domestic  system  of  intellectual  property  rights 
protection  and  without  prejudice  to  the  requirements  of  the  TRIPS  Agreement,  for  effective  border 
enforcement of intellectual property rights, a Party should do so in a manner that does not discriminate 
unjustifiably between intellectual property rights and that avoids the creation of barriers to legitimate 
trade. 

Article 14: Small Consignments and Personal Luggage 

1. 

2. 

Each Party shall include in the application of this Section goods of a commercial nature sent in 
small consignments.  

A Party may exclude from the application of this Section small quantities of goods of a non-
commercial nature contained in travellers’ personal luggage. 

Article 15: Provision of Information from the Right Holder  

Each  Party  shall  permit  its  competent  authorities  to  request  a  right  holder  to  supply  relevant 
information to assist the competent authorities in taking the border measures referred to in this Section. 
A Party may also allow a right holder to supply relevant information to its competent authorities. 

Article 16: Border measures 

1. 

Each  Party  shall  adopt  or  maintain  procedures  with  respect  to  import  and  export  shipments 
under which: 

7 

8 

9 

Where  a  Party  has  dismantled  substantially  all  controls  over  movement  of  goods  across  its  border  with  another 
Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at 
that border.  
It is understood that there shall be no obligation to apply the procedures set forth in this Section to goods put on the 
market in another country by or with the consent of the right holder. 
The Parties agree that patents and protection of undisclosed information do not fall within the scope of this Section. 

EN 

13 

   EN 

 
                                                 
a) 

its  customs  authorities  may  act  upon  their  own  initiative  to  suspend  the  release  of 
suspect goods; and  

b)  where  appropriate,  a  right  holder  may  request  its  competent  authorities  to  suspend  the 

release of suspect goods. 

2. 

A Party may adopt or maintain procedures with respect to suspect in-transit goods or in other 
situations where the goods are under customs control under which: 

a) 

its customs authorities may act upon their own initiative to suspend the release of, or to 
detain, suspect goods; and  

b)  where  appropriate,  a  right  holder  may  request  its  competent  authorities  to  suspend  the 

release of, or to detain, suspect goods. 

Article 17: Application by the Right Holder  

Each Party shall provide that its competent authorities require a right holder that requests the 
procedures  described  in  subparagraphs  1(b)  and  2(b)  of  Article  16  (Border  Measures)  to 
provide adequate evidence to satisfy the competent authorities that, under the law of the Party 
providing the procedures, there is prima facie an infringement of the right holder's intellectual 
property  right,  and  to  supply  sufficient  information  that  may  reasonably  be  expected  to  be 
within the right holder’s knowledge to make the suspect goods reasonably recognizable by the 
information  shall  not 
competent  authorities.  The  requirement 
unreasonably  deter  recourse  to  the  procedures  described  in  subparagraphs  1(b)  and  2(b)  of 
Article 16 (Border Measures).  

to  provide  sufficient 

Each Party shall provide for applications to suspend the release of, or to detain, any suspect 
goods10  under  customs  control  in  its  territory.  A  Party  may  provide  for  such  applications  to 
apply to multiple shipments. A Party may provide that, at the request of the right holder, the 
application to suspend the release of, or to detain, suspect goods may apply to selected points 
of entry and exit under customs control.  

Each Party shall ensure that its competent authorities inform the applicant within a reasonable 
period  whether  they  have  accepted  the  application.  Where  its  competent  authorities  have 
accepted the application, they shall also inform the applicant of the period of validity of the 
application.  

A  Party  may  provide  that,  where  the  applicant  has  abused  the  procedures  described  in 
subparagraphs 1(b) and 2(b) of Article 16 (Border Measures), or where there is due cause, its 
competent authorities have the authority to deny, suspend, or void an application. 

The requirement to provide for such applications is subject to the obligations to provide procedures referred to in 
subparagraphs 1(b) and 2(b) of Article 16 (Border Measures). 

1. 

2. 

3. 

4. 

10 

EN 

14 

   EN 

 
                                                 
Article 18: Security or Equivalent Assurance 

Each Party shall provide that its competent authorities have the authority to require a right holder that 
requests the procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures) to 
provide  a  reasonable  security  or  equivalent  assurance  sufficient  to  protect  the  defendant  and  the 
competent authorities  and  to  prevent  abuse. Each Party shall provide that such security or equivalent 
assurance  shall  not  unreasonably  deter  recourse  to  these  procedures.  A  Party  may  provide  that  such 
security  may  be  in  the  form  of  a  bond  conditioned  to  hold  the  defendant  harmless  from  any  loss  or 
damage  resulting  from  any  suspension  of  the  release  of,  or  detention  of,  the  goods  in  the  event  the 
competent  authorities  determine  that  the  goods  are  not  infringing.  A  Party  may,  only  in  exceptional 
circumstances  or  pursuant  to  a  judicial  order,  permit  the  defendant  to  obtain  possession  of  suspect 
goods by posting a bond or other security.  

Article 19: Determination as to Infringement 

Each  Party  shall  adopt  or  maintain  procedures  by  which  its  competent  authorities  may  determine, 
within  a  reasonable  period  after  the  initiation  of  the  procedures  described  in  Article  16  (Border 
Measures), whether the suspect goods infringe an intellectual property right. 

Article 20: Remedies 

1. 

2. 

3. 

Each  Party  shall  provide  that  its  competent  authorities  have  the  authority  to  order  the 
destruction of goods following a determination referred to in Article 19 (Determination as to 
Infringement) that the goods are infringing. In cases where such goods are not destroyed, each 
Party  shall  ensure  that,  except  in  exceptional  circumstances,  such  goods  are  disposed  of 
outside the channels of commerce in such a manner as to avoid any harm to the right holder.  

In  regard  to  counterfeit  trademark  goods,  the  simple  removal  of  the  trademark  unlawfully 
affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods 
into the channels of commerce.  

A Party may provide that its competent authorities have the authority to impose administrative 
penalties  following  a  determination  referred  to  in  Article  19  (Determination  as  to 
Infringement) that the goods are infringing.  

Article 21: Fees 

Each Party shall provide that any application fee, storage fee, or destruction fee to be assessed by its 
competent authorities in connection with the procedures described in this Section shall not be used to 
unreasonably deter recourse to these procedures. 

Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of information:  

Article 22: Disclosure of Information 

EN 

15 

   EN 

 
a) 

b) 

c) 

Party may authorize its competent authorities to provide a right holder with information 
about specific shipments of goods, including the description and quantity of the goods, 
to assist in the detection of infringing goods; 

a  Party  may  authorize  its  competent  authorities  to  provide  a  right  holder  with 
information  about  goods,  including,  but  not  limited  to,  the  description  and  quantity  of 
the goods, the name and address of the consignor, importer, exporter, or consignee, and, 
if  known,  the  country  of  origin  of  the  goods,  and  the  name  and  address  of  the 
manufacturer  of  the  goods,  to  assist  in  the  determination  referred  to  in  Article  19 
(Determination as to Infringement);  

unless  a  Party  has  provided  its  competent  authorities  with  the  authority  described  in 
subparagraph  (b),  at  least  in  cases  of  imported  goods,  where  its  competent  authorities 
have  seized  suspect  goods  or,  in  the  alternative,  made  a  determination  referred  to  in 
Article  19  (Determination  as  to  Infringement)  that  the  goods  are  infringing,  the  Party 
shall authorize its competent authorities to provide a right holder, within thirty days11 of 
the  seizure  or  determination,  with  information  about  such  goods,  including,  but  not 
limited  to,  the  description  and  quantity  of  the  goods,  the  name  and  address  of  the 
consignor, importer, exporter, or consignee, and, if known, the country of origin of the 
goods, and the name and address of the manufacturer of the goods.  

SECTION 4: CRIMINAL ENFORCEMENT 

Article 23: Criminal Offences  

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of 
wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale.12 
For the purposes of this Section, acts carried out on a commercial scale include at least those 
carried out as commercial activities for direct or indirect economic or commercial advantage.  

Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful 
importation13 and domestic use, in the course of trade and on a commercial scale, of labels or 
packaging:14  

a) 

to which a mark has been applied without authorization which is identical to, or cannot 
be distinguished from, a trademark registered in its territory; and  

For the purposes of this Article, days means business days. 
Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods 
on a commercial scale as unlawful activities subject to criminal penalties under this Article. A Party may comply 
with  its  obligation  relating  to  importation  and  exportation  of  counterfeit  trademark  goods  or  pirated  copyright 
goods  by  providing  for  distribution,  sale  or  offer  for  sale  of  such  goods  on  a  commercial  scale  as  unlawful 
activities subject to criminal penalties. 
A  Party  may  comply  with  its  obligation  relating  to  importation  of  labels  or  packaging  through  its  measures 
concerning distribution. 
A Party may comply with its obligations under this paragraph by providing for criminal procedures and penalties to 
be applied to attempts to commit a trademark offence. 

1. 

2. 

11 
12 

13 

14 

EN 

16 

   EN 

 
                                                 
3. 

4. 

5. 

b)  which are intended to be used in the course of trade on goods or in relation to services 

which are identical to goods or services for which such trademark is registered. 

A  Party  may  provide  criminal  procedures  and  penalties  in  appropriate  cases  for  the 
unauthorized  copying  of  cinematographic  works  from  a  performance  in  a  motion  picture 
exhibition facility generally open to the public. 

With  respect  to  the  offences  specified  in  this  Article  for  which  a  Party  provides  criminal 
procedures and penalties, that Party shall ensure that criminal liability for aiding and abetting 
is available under its law. 

Each Party shall adopt such measures as may be necessary, consistent with its legal principles, 
to establish the liability, which may be criminal, of legal persons for the offences specified in 
this Article for which the Party provides criminal procedures and penalties. Such liability shall 
be without prejudice to the criminal liability of the natural persons who have committed the 
criminal offences. 

Article 24: Penalties 

For  offences  specified  in  paragraphs  1,  2,  and  4  of  Article  23  (Criminal  Offences),  each  Party  shall 
provide penalties that include imprisonment as well as monetary fines15 sufficiently high to provide a 
deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a 
corresponding gravity.  

Article 25: Seizure, Forfeiture, and Destruction 

With  respect  to  the  offences  specified  in  paragraphs  1,  2,  3,  and  4  of  Article  23  (Criminal 
Offences)  for  which  a  Party  provides  criminal  procedures  and  penalties,  that  Party  shall 
provide  that  its  competent  authorities  have  the  authority  to  order  the  seizure  of  suspected 
counterfeit trademark goods or pirated copyright goods, any related materials and implements 
used in the commission of the alleged offence, documentary evidence relevant to the alleged 
offence,  and  the  assets  derived  from,  or  obtained  directly  or  indirectly  through,  the  alleged 
infringing activity.  

Where  a  Party  requires  the  identification  of  items  subject  to  seizure  as  a  prerequisite  for 
issuing  an  order  referred  to  in  paragraph  1,  that  Party  shall  not  require  the  items  to  be 
described in greater detail than necessary to identify them for the purpose of seizure.  

With  respect  to  the  offences  specified  in  paragraphs  1,  2,  3,  and  4  of  Article  23  (Criminal 
Offences)  for  which  a  Party  provides  criminal  procedures  and  penalties,  that  Party  shall 
provide that its competent authorities have the authority to order the forfeiture or destruction 
of  all  counterfeit  trademark  goods  or  pirated  copyright  goods.  In  cases  where  counterfeit 
trademark  goods  and  pirated  copyright  goods  are  not  destroyed,  the  competent  authorities 
shall ensure that, except in exceptional circumstances, such goods shall be disposed of outside 

It is understood that there is no obligation for a Party to provide for the possibility of imprisonment and monetary 
fines to be imposed in parallel. 

1. 

2. 

3. 

15 

EN 

17 

   EN 

 
                                                 
4. 

5. 

the channels of commerce in such a manner as to avoid causing any harm to the right holder. 
Each  Party  shall  ensure  that  the  forfeiture  or  destruction  of  such  goods  shall  occur  without 
compensation of any sort to the infringer. 

With  respect  to  the  offences  specified  in  paragraphs  1,  2,  3,  and  4  of  Article  23  (Criminal 
Offences)  for  which  a  Party  provides  criminal  procedures  and  penalties,  that  Party  shall 
provide that its competent authorities have the authority to order the forfeiture or destruction 
of  materials  and  implements  predominantly  used  in  the  creation  of  counterfeit  trademark 
goods or pirated copyright goods and, at least for serious offences, of the assets derived from, 
or obtained directly or indirectly through, the infringing activity. Each Party shall ensure that 
the  forfeiture  or  destruction  of  such  materials,  implements,  or  assets  shall  occur  without 
compensation of any sort to the infringer. 

With  respect  to  the  offences  specified  in  paragraphs  1,  2,  3,  and  4  of  Article  23  (Criminal 
Offences)  for  which  a  Party  provides  criminal  procedures  and  penalties,  that  Party  may 
provide that its judicial authorities have the authority to order:  

a) 

b) 

the seizure of assets the value of which corresponds to that of the assets derived from, or 
obtained directly or indirectly through, the allegedly infringing activity; and 

the forfeiture of assets the value of which corresponds to that of the assets derived from, 
or obtained directly or indirectly through, the infringing activity. 

Article 26: Ex Officio Criminal Enforcement 

Each Party shall  provide that, in appropriate  cases, its  competent authorities may act upon their own 
initiative  to  initiate  investigation  or  legal  action  with  respect  to  the  criminal  offences  specified  in 
paragraphs  1,  2,  3,  and  4  of  Article  23  (Criminal  Offences)  for  which  that  Party  provides  criminal 
procedures and penalties. 

SECTION 5: ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN THE DIGITAL 
ENVIRONMENT 

Article 27: Enforcement in the Digital Environment 

1. 

2. 

Each Party shall ensure that enforcement procedures, to the extent set forth in Sections 2 (Civil 
Enforcement)  and  4  (Criminal  Enforcement),  are  available  under  its  law  so  as  to  permit 
effective action against an act of infringement of intellectual property rights which takes place 
in  the  digital  environment,  including  expeditious  remedies  to  prevent  infringement  and 
remedies which constitute a deterrent to further infringements.  

Further  to  paragraph  1,  each  Party’s  enforcement  procedures  shall  apply  to  infringement  of 
copyright  or  related  rights  over  digital  networks,  which  may  include  the  unlawful  use  of 
means  of  widespread  distribution  for  infringing  purposes.  These  procedures  shall  be 
implemented in a manner that avoids the creation of barriers to legitimate activity, including 

EN 

18 

   EN 

 
3. 

4. 

5. 

6. 

16 

17 

electronic commerce, and, consistent with that Party’s law, preserves fundamental principles 
such as freedom of expression, fair process, and privacy.16  

Each Party shall endeavour to promote cooperative efforts within the business community to 
effectively  address  trademark  and  copyright  or  related  rights  infringement  while  preserving 
legitimate competition and, consistent with that Party’s law, preserving fundamental principles 
such as freedom of expression, fair process, and privacy. 

A  Party  may  provide,  in  accordance  with  its  laws  and  regulations,  its  competent  authorities 
with the authority to order an online service provider to disclose expeditiously to a right holder 
information  sufficient  to  identify  a  subscriber  whose  account  was  allegedly  used  for 
infringement,  where  that  right  holder  has  filed  a  legally  sufficient  claim  of  trademark  or 
copyright or related rights infringement, and where such information is being sought for the 
purpose  of  protecting  or  enforcing  those  rights.  These  procedures  shall  be  implemented  in  a 
manner  that  avoids  the  creation  of  barriers  to  legitimate  activity,  including  electronic 
commerce,  and,  consistent  with  that  Party’s  law,  preserves  fundamental  principles  such  as 
freedom of expression, fair process, and privacy. 

Each  Party  shall  provide  adequate  legal  protection  and  effective  legal  remedies  against  the 
circumvention  of  effective  technological  measures17  that  are  used  by  authors,  performers  or 
producers  of  phonograms  in  connection  with  the  exercise  of  their  rights  in,  and  that  restrict 
acts in respect of, their works, performances, and phonograms, which are not authorized by the 
authors, the performers or the producers of phonograms concerned or permitted by law.  

In  order  to  provide  the  adequate  legal  protection  and  effective  legal  remedies  referred  to  in 
paragraph 5, each Party shall provide protection at least against: 

a) 

to the extent provided by its law:  

i) 

ii) 

the unauthorized circumvention of an effective technological measure carried out 
knowingly or with reasonable grounds to know; and  

the offering to the public by marketing of a device or product, including computer 
programs,  or  a  service,  as  a  means  of  circumventing  an  effective  technological 
measure; and 

b) 

the manufacture, importation, or distribution of a device or product, including computer 
programs, or provision of a service that:  

For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the 
liability of, or on the remedies available against, online service providers while preserving the legitimate interests 
of right holder. 
For the purposes of this Article, technological measures means any technology, device, or component that, in the 
normal  course  of  its  operation,  is  designed  to  prevent  or  restrict  acts,  in  respect  of  works,  performances,  or 
phonograms, which are not authorized by authors, performers or producers of phonograms, as provided for by a 
Party’s law. Without prejudice to the scope of copyright or related rights contained in a Party’s law, technological 
measures shall be deemed effective where the use of protected works, performances, or phonograms is controlled 
by  authors,  performers  or  producers  of  phonograms  through  the  application  of  a  relevant  access  control  or 
protection process, such as encryption or scrambling, or a copy control mechanism, which achieves the objective of 
protection. 

EN 

19 

   EN 

 
                                                 
i) 

ii) 

is  primarily  designed  or  produced  for  the  purpose  of  circumventing  an  effective 
technological measure; or 

has only a limited commercially significant  purpose other than  circumventing an 
effective technological measure. 18 

To protect electronic rights management information,19 each Party shall provide adequate legal 
protection  and  effective  legal  remedies  against  any  person  knowingly  performing  without 
authority  any  of  the  following  acts  knowing,  or  with  respect  to  civil  remedies,  having 
reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement 
of any copyright or related rights: 

a) 

b) 

to remove or alter any electronic rights management information;  

to distribute, import for distribution, broadcast, communicate, or make available to the 
public  copies  of  works,  performances,  or  phonograms,  knowing  that  electronic  rights 
management information has been removed or altered without authority. 

In providing adequate legal protection and effective legal remedies pursuant to the provisions 
of paragraphs 5 and 7, a Party may adopt or maintain appropriate limitations or exceptions to 
measures implementing the provisions of paragraphs 5, 6, and 7. The obligations set forth in 
paragraphs 5, 6, and 7 are without prejudice to the rights, limitations, exceptions, or defences 
to copyright or related rights infringement under a Party’s law.  

Chapter III: Enforcement Practices 

Article 28: Enforcement Expertise, Information, and Domestic Coordination  

Each  Party  shall  encourage  the  development  of  specialized  expertise  within  its  competent 
authorities responsible for the enforcement of intellectual property rights. 

Each  Party  shall  promote  the  collection  and  analysis  of  statistical  data  and  other  relevant 
information concerning intellectual property rights infringements as well as the collection of 
information on best practices to prevent and combat infringements.  

In implementing paragraphs 5 and 6, no Party shall be obligated to require that the design of, or the design and 
selection of parts and components for, a consumer electronics, telecommunications, or computing product provide 
for  a  response  to  any  particular  technological  measure,  so  long  as  the product  does not  otherwise  contravene  its 
measures implementing these paragraphs. 
For the purposes of this Article, rights management information means: 
information that identifies the work, the performance, or the phonogram; the author of the work, the performer of 
the  performance,  or  the  producer  of  the  phonogram;  or  the  owner  of  any  right  in  the  work,  performance,  or 
phonogram;  
information about the terms and conditions of use of the work, performance, or phonogram; or 
any numbers or codes that represent the information described in (a) and (b) above; 
when any of these items of information is attached to a copy of a work, performance, or phonogram, or appears in 
connection with the communication or making available of a work, performance, or phonogram to the public. 

7. 

8. 

1. 

2. 

18 

19 
(a) 

(b) 
(c) 

EN 

20 

   EN 

 
                                                 
 
3. 

4. 

Each  Party  shall,  as  appropriate,  promote  internal  coordination  among,  and  facilitate  joint 
actions  by,  its  competent  authorities  responsible  for  the  enforcement  of  intellectual  property 
rights. 

Each Party shall endeavour to promote, where appropriate, the establishment and maintenance 
of formal or informal mechanisms, such as advisory groups, whereby its competent authorities 
may receive the views of right holders and other relevant stakeholders.  

Article 29: Management of Risk at Border  

1. 

In order to enhance the effectiveness of border enforcement of intellectual property rights, the 
competent authorities of a Party may:  

a) 

b) 

consult  with  the  relevant  stakeholders,  and  the  competent  authorities  of  other  Parties 
responsible  for  the  enforcement  of  intellectual  property  rights  to  identify  and  address 
significant risks, and promote actions to mitigate those risks; and  

share information with the competent authorities of other Parties on border enforcement 
of intellectual property rights, including relevant information to better identify and target 
for inspection shipments suspected of containing infringing goods.  

2. 

Where  a  Party  seizes  imported  goods  infringing  an  intellectual  property  right,  its  competent 
authorities may provide the Party of export with information necessary for identification of the 
parties and goods involved in the exportation of the seized goods. The competent authorities 
of the Party of export may take action against those parties and future shipments in accordance 
with that Party’s law. 

Article 30: Transparency  

To  promote  transparency  in  the  administration  of  its  intellectual  property  rights  enforcement  system, 
each  Party  shall  take  appropriate  measures,  pursuant  to  its  law  and  policies,  to  publish  or  otherwise 
make available to the public information on:  

a) 

b) 

c) 

procedures  available  under  its  law  for  enforcing  intellectual  property  rights,  its 
competent authorities responsible for such enforcement, and contact points available for 
assistance; 

relevant laws, regulations, final judicial decisions, and administrative rulings of general 
application pertaining to the enforcement of intellectual property rights; and  

its  efforts  to  ensure  an  effective  system  of  enforcement  and  protection  of  intellectual 
property rights.  

EN 

21 

   EN 

 
Article 31: Public Awareness  

Each Party shall, as appropriate, promote the adoption of measures to enhance public awareness of the 
importance of respecting intellectual property rights and the detrimental effects of intellectual property 
rights infringement. 

Article 32: Environmental Considerations in Destruction of Infringing Goods 

The destruction of goods infringing intellectual property rights shall be done consistently with the laws 
and regulations on environmental matters of the Party in which the destruction takes place. 

EN 

22 

   EN 

 
Chapter IV 

INTERNATIONAL COOPERATION 

Article 33: International Cooperation  

1. 

2. 

3. 

Each Party recognizes that international cooperation is vital to realizing effective protection of 
intellectual  property  rights  and  that  it  should  be  encouraged  regardless  of  the  origin  of  the 
goods infringing intellectual property rights, or the location or nationality of the right holder.  

In  order  to  combat  intellectual  property  rights  infringement,  in  particular  trademark 
counterfeiting  and  copyright  or  related  rights  piracy,  the  Parties  shall  promote  cooperation, 
where  appropriate,  among  their  competent  authorities  responsible  for  the  enforcement  of 
intellectual property rights. Such cooperation may include law enforcement cooperation with 
respect to criminal enforcement and border measures covered by this Agreement.  

Cooperation  under  this  Chapter  shall  be  conducted  consistent  with  relevant  international 
agreements,  and  subject  to  the  laws,  policies,  resource  allocation,  and  law  enforcement 
priorities of each Party. 

Article 34: Information Sharing  

Without  prejudice  to  the  provisions  of  Article  29  (Management  of  Risk  at  Border),  each  Party  shall 
endeavour to exchange with other Parties:  

a) 

b) 

information  the  Party  collects  under  the  provisions  of  Chapter  III  (Enforcement 
Practices), including statistical data and information on best practices;  

information  on  its  legislative  and  regulatory  measures  related  to  the  protection  and 
enforcement of intellectual property rights; and  

c) 

other information as appropriate and mutually agreed.  

Article 35: Capacity Building and Technical Assistance  

1. 

Each  Party  shall  endeavour  to  provide,  upon  request  and  on  mutually  agreed  terms  and 
conditions,  assistance  in  capacity  building  and  technical  assistance  in  improving  the 
enforcement  of  intellectual  property  rights  to  other  Parties  to  this  Agreement  and,  where 
appropriate, to prospective Parties. The capacity building and technical assistance may cover 
such areas as: 

a) 

b) 

enhancement of public awareness on intellectual property rights; 

development and implementation of national legislation related to the enforcement 
of intellectual property rights; 

EN 

23 

   EN 

 
2. 

3. 

1. 

2. 

c) 

training of officials on the enforcement of intellectual property rights; and 

d) 

coordinated operations conducted at the regional and multilateral levels. 

Each  Party  shall  endeavour  to  work  closely  with  other  Parties  and,  where  appropriate,  non-
Parties to this Agreement for the purpose of implementing the provisions of paragraph 1. 

A  Party  may  undertake  the  activities  described  in  this  Article  in  conjunction  with  relevant 
private  sector  or  international  organizations.  Each  Party  shall  strive  to  avoid  unnecessary 
duplication between the activities described in this Article and other international cooperation 
activities. 

Chapter V  

INSTITUTIONAL ARRANGEMENTS 

Article 36: The ACTA Committee  

The  Parties  hereby  establish  the  ACTA  Committee.  Each  Party  shall  be  represented  on  the 
Committee. 

The Committee shall: 

a) 

review the implementation and operation of this Agreement; 

b) 

consider matters concerning the development of this Agreement;  

c) 

d) 

e) 

consider  any  proposed  amendments  to  this  Agreement  in  accordance  with  Article  42 
(Amendments); 

decide,  in  accordance  with  paragraph  2  of  Article  43  (Accession),  upon  the  terms  of 
accession to this Agreement of any Member of the WTO; and  

consider  any  other  matter  that  may  affect  the  implementation  and  operation  of  this 
Agreement. 

3. 

The Committee may decide to: 

a) 

establish ad hoc committees or working groups to assist the Committee in carrying out 
its responsibilities under paragraph 2, or to assist a prospective Party upon its request in 
acceding to this Agreement in accordance with Article 43 (Accession); 

b) 

seek the advice of non-governmental persons or groups;  

c)  make recommendations regarding the implementation and operation of this Agreement, 

including by endorsing best practice guidelines related thereto;  

EN 

24 

   EN 

 
d) 

share information and best practices with third parties on reducing intellectual property 
rights  infringements,  including  techniques  for  identifying  and  monitoring  piracy  and 
counterfeiting; and  

e) 

take other actions in the exercise of its functions. 

All  decisions  of  the  Committee  shall  be  taken  by  consensus,  except  as  the  Committee  may 
otherwise decide by consensus. The Committee shall be deemed to have acted by consensus 
on  a  matter  submitted  for  its  consideration,  if  no  Party  present  at  the  meeting  when  the 
decision  is  taken  formally  objects  to  the  proposed  decision.  English  shall  be  the  working 
language  of  the  Committee  and  the  documents  supporting  its  work  shall  be  in  the  English 
language. 

The Committee shall adopt its rules and procedures within a reasonable period after the entry 
into force of this Agreement, and shall invite those Signatories not Parties to this Agreement to 
participate  in  the  Committee’s  deliberations  on  those  rules  and  procedures.  The  rules  and 
procedures: 

a) 

shall  address  such  matters  as  chairing  and  hosting  meetings,  and  the  performance  of 
organizational duties relevant to this Agreement and its operation; and 

b)  may  also  address  such  matters  as  granting  observer  status,  and  any  other  matter  the 

Committee decides necessary for its proper operation. 

The Committee may amend the rules and procedures.  

Notwithstanding the provisions of paragraph 4, during the first five years following the entry 
into  force  of  this  Agreement,  the  Committee’s  decisions  to  adopt  or  amend  the  rules  and 
procedures shall be taken by consensus of the Parties and those Signatories not Parties to this 
Agreement. 

After the period  specified  in  paragraph 7, the Committee may adopt or amend the rules and 
procedures upon the consensus of the Parties to this Agreement.  

Notwithstanding the provisions of paragraph 8, the Committee may decide that the adoption or 
amendment  of  a  particular  rule  or  procedure  requires  the  consensus  of  the  Parties  and  those 
Signatories not Parties to this Agreement.  

The  Committee  shall  convene  at  least  once  every  year  unless  the  Committee  decides 
otherwise. The first meeting of the Committee shall be held within a reasonable period after 
the entry into force of this Agreement. 

For greater certainty, the Committee shall not oversee or supervise domestic or international 
enforcement or criminal investigations of specific intellectual property cases. 

The Committee shall strive to avoid unnecessary duplication between its activities and other 
international efforts regarding the enforcement of intellectual property rights. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

EN 

25 

   EN 

 
1. 

2. 

1. 

2. 

3. 

Article 37: Contact Points 

Each Party shall designate a contact point to facilitate communications between the Parties on 
any matter covered by this Agreement.  

On the request of another Party, a Party’s contact point shall identify an appropriate office or 
official to whom the requesting Party’s inquiry may be addressed, and assist, as necessary, in 
facilitating communications between the office or official concerned and the requesting Party. 

Article 38:Consultations 

A  Party  may  request  in  writing  consultations  with  another  Party  with  respect  to  any  matter 
affecting the implementation of this Agreement. The requested Party shall accord sympathetic 
consideration  to  such  a  request,  provide  a  response,  and  afford  adequate  opportunity  to 
consult.  

The  consultations,  including  particular  positions  taken  by  consulting  Parties,  shall  be  kept 
confidential  and  be  without  prejudice  to  the  rights  or  positions  of  either  Party  in  any  other 
proceeding,  including  a  proceeding  under  the  auspices  of  the  Understanding  on  Rules  and 
Procedures  Governing  the  Settlement  of  Disputes  contained  in  Annex  2  to  the  WTO 
Agreement. 

The  consulting  Parties  may,  by  mutual  consent,  notify  the  Committee  of  the  result  of  their 
consultations under this Article. 

Chapter VI: Final Provisions 

Article 39: Signature 

This Agreement shall remain open for signature by participants in its negotiation,20 and by any other 
WTO Members the participants may agree to by consensus, from 31 March 2011 until 31 March 2013. 

20 

Australia,  the  Republic  of Austria,  the Kingdom  of  Belgium,  the  Republic  of  Bulgaria,  Canada,  the Republic  of 
Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the European Union, the Republic 
of  Finland,  the  French  Republic,  the  Federal  Republic  of  Germany,  the  Hellenic  Republic,  the  Republic  of 
Hungary,  Ireland,  the  Italian  Republic,  Japan,  the  Republic  of  Korea,  the  Republic  of  Latvia,  the  Republic  of 
Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the United Mexican States, the Kingdom of 
Morocco,  the  Kingdom  of  the  Netherlands,  New  Zealand,  the  Republic  of  Poland,  the  Portuguese  Republic, 
Romania, the Republic of Singapore, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the 
Kingdom of Sweden, the Swiss Confederation, the United Kingdom of Great Britain and Northern Ireland, and the 
United States of America. 

EN 

26 

   EN 

 
                                                 
Article 40: Entry Into Force  

1. 

2. 

This  Agreement  shall  enter  into  force  thirty  days  after  the  date  of  deposit  of  the  sixth 
instrument  of  ratification,  acceptance,  or  approval  as  between  those  Signatories  that  have 
deposited their respective instruments of ratification, acceptance, or approval. 

This  Agreement  shall  enter  into  force  for  each  Signatory  that  deposits  its  instrument  of 
ratification,  acceptance,  or  approval  after  the  deposit  of  the  sixth  instrument  of  ratification, 
acceptance,  or  approval,  thirty  days  after  the  date  of  deposit  by  such  Signatory  of  its 
instrument of ratification, acceptance, or approval.  

Article 41: Withdrawal 

A Party may withdraw from this Agreement by means of a written notification to the Depositary. The 
withdrawal shall take effect 180 days after the Depositary receives the notification.  

1. 

2. 

1. 

2. 

3. 

Article 42: Amendments 

A Party may propose amendments to this Agreement to the Committee. The Committee shall 
decide whether to present a proposed amendment to the Parties for ratification, acceptance, or 
approval. 

Any  amendment  shall  enter  into  force  ninety  days  after  the  date  that  all  the  Parties  have 
deposited  their  respective  instruments  of  ratification,  acceptance,  or  approval  with  the 
Depositary.  

Article 43: Accession  

After the expiration of the period provided in Article 39 (Signature), any Member of the WTO 
may apply to accede to this Agreement. 

The Committee shall decide upon the terms of accession for each applicant. 

This Agreement shall enter into force for the applicant thirty days after the date of deposit of 
its instrument of accession based upon the terms of accession referred to in paragraph 2. 

Article 44: Texts of the Agreement 

This Agreement shall be signed in a single original in the English, French, and Spanish languages, each 
version being equally authentic. 

The Government of Japan shall be the Depositary of this Agreement.  

Article 45: Depositary 

EN 

27 

   EN