Source: EURLEX
Language: en
Format: md

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# 52013PC0282

**COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Regulation of the European Parliament and of the Council concerning customs enforcement of intellectual property rights /\* COM/2013/0282 final - 2011/0137 (COD) \*/**

  

2011/0137 (COD)

COMMUNICATION FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT
pursuant to Article 294(6) of the Treaty on the Functioning of the European
Union
concerning the

position of the Council on the adoption of
a Regulation of the European Parliament and of the Council concerning customs
enforcement of intellectual property rights

1.           Background

Date of transmission of the proposal to the European Parliament and to the Council (document COM(2011) 0285 final – 2011/0137 COD): || 24/05/2011.

Date of the position of the European Parliament, first reading: || 03/07/2012.

Date of adoption of the position of the Council: || 16/05/2013.

2.           Objective of the proposal from the Commission

The proposed Regulation should replace existing Regulation No 1383/2003[1], which currently implements Section 4 (Special requirements related
to border measures) of Part III (Enforcement of intellectual property Rights)
of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS).

The proposal is an integral part of the
strategic framework outlined in the Communication from the Commission on a
Single Market for Intellectual Property Rights[2]
and 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[3],
the Communication on a Single Market Act[4]
and the Communication on the EU Internal Security Strategy[5].

It aims to strengthen the capability for customs to enforce IPRs at the
border : it expands the range of IPR
infringements covered and maintains the competence of customs authorities
to control all goods under customs supervision irrespective of their
customs treatment; it ensures that high quality information is provided to
customs to enable a good analysis and assessment of the risk of
infringement of IPR; it sets out the legal basis for a central database
for recording applications for customs action and detentions as well as
exchange of information between customs authorities (COPIS).

Certain adjustments to the current
procedures are also proposed to ensure that administrative burdens are kept to
a minimum: it provides for the possibility of
destroying goods without legal proceedings, based on agreement
between the parties concerned; it establishes a new procedure for small
consignments where goods may be destroyed without the involvement of the
right-holders.

It ensures that the legitimate interests
of all traders are taken into account: it harmonises the implementation of
the right to be heard of parties to whom the detention is detrimental
and adjusts the periods granted to each party within the procedures.

It addresses the concerns expressed by
India and Brazil in the context of two WTO disputes launched in 2010 with regard to "generic" medicines in transit
across the EU territory: it introduces recital 17 reminding the 2001 Doha
Declaration on the TRIPS Agreement and Public Health, removes current recital 8
("manufacturing fiction) and follows more closely TRIPS wording
("adequate evidence" of IPR infringement is needed for customs to
detain goods).

3.           Comments on the position of the Council

The position of the Council as adopted in
the 1st reading fully reflects the agreement reached in the trilogue between
the Council, the European Parliament and the Commission, as concluded on 19
December 2012. The main points of this agreement are as follows:

–
To exclude parallel trade and overruns from the
scope of the Regulation.

–
To clarify that customs authority may carry out
customs controls and take identification measures provided for in the customs
legislation to prevent operations in breach of intellectual property laws
applicable in the territory of the Union, and in order to cooperate with third
countries on the enforcement of intellectual property rights.

–
To set out a common procedure for all kinds of
IPR infringements falling within the scope of the Regulation, without prejudice
of the specific procedure for small consignments. Under such common procedure,
goods may be destroyed without the need for the right-holder to initiate legal
proceedings where he so requests, on condition that the declarant or holder of
the goods, after being properly notified of the detention of the goods by the
customs authorities, does not object to destruction.

–
To establish that the procedure for small
consignments only applies upon previous request from the applicant in that
regard, and that the customs authorities have the possibility to require that
the applicant covers the costs incurred by the application of this procedure.

–
To set out the definition of small consignments
in the Regulation, which empowers the Commission to adopt delegated acts in
accordance with Article 290 of the Treaty on the Functioning of the European
Union in respect of amending, under certain circumstances, the non-essential
elements of that definition.

–
To provide, in line with TRIPS Article 69 and
with a view to eliminating international trade in goods infringing intellectual
property rights, with a legal basis for the swift exchange of information
between customs authorities in the EU and in third countries on such trade. In
order to ensure a uniform implementation of the provisions for defining the
elements of the practical arrangements for the exchange of data with third
countries, implementing powers are conferred on the Commission, namely to
define those elements of the practical arrangements. The provisions on transfer
of data to third countries are without prejudice to applicable provisions on
data protection in the EU, and in particular Articles 25 and 26 of Directive
95/46/EC and Article 9 of Regulation (EC) No 45/2001.

–
To rule out provisions in the Regulation
harmonising the right to be heard in favour of the persons concerned by the
customs detention of goods. It is considered that national laws apply for
granting the right to be heard.

–
To broaden and clarify the list of cases in
which the right-holder may use the information that customs disclosed to him
following a customs detention of goods under the Regulation.

–
To include provisions in the basic act on data
collection, processing, retention periods, exercise of rights and
responsibilities in accordance with existing legislation on data protection.

The Commission fully supported the agreement
reached in the trilogue.

4.           Conclusion

The Commission can accept the amendments
introduced by the Council to its proposal.

[1]               Council Regulation (EC) No
1383/2003 of 22 July 2003 concerning customs action against goods suspected of
infringing certain intellectual property rights and the measures to be taken
against goods found to have infringed such rights

[2]               Commission Communication of 24 May 2011: A Single
Market for Intellectual Property Rights – COM(2011)287 final.

[3]               Commission Communication of 3 March 2010: "A
strategy for smart, sustainable and inclusive growth – COM(2010)2020 final.

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

[5]               Commission Communication of 22 November 2010: The EU
Internal Security Strategy in Action: Five steps towards a more secure Europe – COM(2010)673 final.

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