Source: EURLEX
Language: en
Format: md

1994R3295 — EN — 01.07.1999 — 001.001 — 1

**This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents**

**►B** **►M1 COUNCIL REGULATION (EC) No 3295/94**

**of 22 December 1994**

**laying down measures concerning the entry into the Community and the export and re-export**
**from the Community of goods infringing certain intellectual property rights ◄**

(OJ L 341, 30.12.1994, p. 8)

Amended by:

Official Journal

No page date

**►M1** Council Regulation (EC) No 241/1999 of 25 January 1999 L 27 1 2.2.1999

1994R3295 — EN — 01.07.1999 — 001.001 — 2

**▼B**

**▼M1**

**COUNCIL REGULATION (EC) No 3295/94**

**of 22 December 1994**

**laying down measures concerning the entry into the Community**
**and the export and re-export from the Community of goods**
**infringing certain intellectual property rights**

**▼B**

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and
in particular Article 113 thereof,

Having regard to the proposal from the Commission ( [1] ),

Having regard to the opinion of the European Parliament ( [2] ),

Having regard to the opinion of the Economic and Social Committee ( [3] ),

Whereas Council Regulation (EEC) No 3842/86 of 1 December 1986
laying down measures to prohibit the release for free circulation of
counterfeit goods ( [4] ) has been in force since 1 January 1988; whereas
conclusions should be drawn from the experience gained during the
early years of its implementation with a view to improving the operation of the system it set up;

Whereas the marketing of counterfeit goods and pirated goods causes
considerable injury to law-abiding manufacturers and traders and to
holders of the copyright or neighbouring rights and misleads consumers;
whereas such goods should as far as possible be prevented from being
placed on the market and measures should be adopted to that end to
deal effectively with this unlawful activity without impeding to freedom
of legitimate trade; whereas this objective is also being pursued through
efforts being made along the same lines at international level;

Whereas, in so far as counterfeit or pirated goods and similar products
are imported from third countries, it is important to prohibit their release
for free circulation in the Community or their entry for a suspensive
procedure and to set up an appropriate procedure enabling the customs
authorities to act to ensure that such a prohibition can be properly
enforced;

Whereas action by the customs authorities to prohibit the release for
free circulation of counterfeit or pirated goods or their entry for a
suspensive procedure should also apply to the export or re-export of
such goods from the Community;

Whereas, as regards suspensive procedures and re-export subject to
notification, action by the customs authorities will take place only
where suspected counterfeit or pirated goods are discovered during a
check;

Whereas the Community takes into account the terms of the GATT
agreement on trade-related intellectual property issues, including a trade
in counterfeit goods, in particular the measures to be taken at the
frontier;

Whereas provision should be made that the customs authorities are
empowered to take decisions on applications for action to be taken that
are submitted to them;

Whereas action by the customs authorities should consist either in
suspending the release for free circulation, export or re-export of goods
suspected of being counterfeit or pirated or in detaining such goods
when they are entered for a suspensive procedure or re-exported subject

( [1] ) OJ No C 238, 2. 9. 1993, p. 9.
( [2] ) OJ No C 61, 28. 2. 1994.
( [3] ) OJ No C 52, 19. 2. 1994, p. 37.
( [4] ) OJ No L 357, 18. 12. 1986, p. 1.

**▼B**

**▼M1**

1994R3295 — EN — 01.07.1999 — 001.001 — 3

to notification for as long as is necessary to enable it to be determined
whether the goods are actually counterfeit or pirated;

Whereas it is appropriate to authorize the Member States to detain the
goods in question for a certain period even before an application by the
right holder has been lodged or approved in order to allow him to lodge
an application for action by the customs authorities;

Whereas the competent authority should decide cases submitted to it by
reference to the criteria which are used to determine whether goods
produced in the Member State concerned infringe intellectual property
rights; whereas Member States’ provisions on the competence of the
judicial authorities and procedures are not affected by this Regulation;

Whereas it is necessary to determine the measures to be applied to the
goods in question where it is established that they are counterfeit or
pirated; whereas those measures should not only deprive those responsible for trading in such goods of the economic benefits of the transaction and penalize them but also constitute an effective deterrent to
further transactions of the same kind;

Whereas in order to avoid serious disruption to the clearing of goods
contained in travellers’ personal luggage, it is necessary to exclude from
the scope of this Regulation goods which may be counterfeit or pirated
which are imported from third countries within the limits laid down by
Community rules in respect of relief from customs duty;

Whereas uniform application of the common rules laid down by this
Regulation must be ensured and to that end a Community procedure
must be established enabling measures implementing these rules to be
adopted within appropriate periods and mutual assistance between the
Member States, of the one part, and between the Member States and the
Commission, of the other part, to be strengthened so as to ensure greater
effectiveness;

Whereas it will be appropriate to consider the possibility of increasing
the number of intellectual property rights covered by this Regulation in
the light, _inter alia,_ of the experience gained in its implementation;

Whereas Regulation (EEC) No 3842/86 should therefore be repealed,

HAS ADOPTED THIS REGULATION:

CHAPTER I

**General**

_Article 1_

1. This Regulation lays down:

(a) the conditions under which the customs authorities shall take action
where goods suspected of being goods referred to in paragraph 2(a)

are:

— entered for free circulation, export or re-export, in accordance
with Article 61 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code ( [1] ),

— found in the course of checks on goods under customs supervision within the meaning of Article 37 of Council Regulation
(EEC) No 2913/92, placed under a suspensive procedure within
the meaning of Article 84(1)(a) of that Regulation, re-exported
subject to notification or placed in a free zone or free warehouse
within the meaning of Article 166 thereof;

( [1] ) OJ L 302, 19. 10. 1992, p. 1.

**▼M1**

1994R3295 — EN — 01.07.1999 — 001.001 — 4

and

(b) the measures which shall be taken by the competent authorities with
regard to those goods where it has been established that they are
indeed goods referred to in paragraph 2(a).

2. For the purposes of this Regulation:

(a) ‘goods infringing an intellectual property right' means

— ‘counterfeit goods', namely:

— goods, including the packaging thereof, bearing without
authorisation a trade mark which is 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 trade mark, and which thereby infringes the rights
of the holder of the trade mark in question under
Community law or the law of the Member State where the
application for action by the customs authorities is made,
— any trade mark symbol (logo, label, sticker, brochure,
instructions for use, guarantee document) whether presented
separately or not, in the same circumstances as the goods
referred to in the first indent,

— packaging materials bearing the trade marks of counterfeit
goods, presented separately in the same circumstances as the
goods referred to in the first indent;
— ‘pirated goods', namely: goods which are or embody copies
made without the consent of the holder of the copyright or
neighbouring rights, or of the holder of a design right, whether
registered under national law or not, or of a person duly authorised by the holder in the country of production, where the
making of those copies infringes the right in question under
Community law or the law of the Member State in which the
application for action by the customs authorities is made;
— goods infringing, in the Member State in which the application
for action by the customs authorities is made, a patent under the
law of that Member State or a supplementary protection certificate as provided for by Council Regulation (EEC) No 1768/
92 ( [1] ) or Regulation (EC) No 1610/96 of the European Parliament and of the Council ( [2] );

(b) ‘holder of a right' means the holder of a trade mark, a patent or a
certificate and/or one of the rights referred to in (a), or any other
person authorised to use that trademark, patent, certificate and/or
right, or a representative thereof;

(c) ‘Community trademark'means the trademark defined in Article 1 of
Council Regulation (EC) No 40/94 ( [3] );

(d) ‘certificate' means the supplementary protection certificate provided
for by Regulation (EEC) No 1768/92 or by Regulation (EC) No
1610/96.

3. Any mould or matrix which is specifically designed or adapted for
the manufacture of a counterfeit trade mark or of goods bearing such a
trade mark, for the manufacture of goods infringing a patent or a
certificate or for the manufacture of pirated goods shall be treated as
goods referred to in paragraph 2(a), provided that the use of such
moulds or matrices infringes the rights of the holder of the right in
question under Community law or the law of the Member State in
which the application for action by the customs authorities is made.

4. This Regulation shall not apply to goods which bear a trade mark
with the consent of the holder of that trade mark or which are protected
by a patent or a certificate, by a copyright or neighbouring right or by a
design right and which have been manufactured with the consent of the

( [1] ) OJ L 182, 2. 7. 1992, p. 1.
( [2] ) OJ L 198, 8. 8. 1996, p. 30.
( [3] ) OJ L 11, 4. 1. 1994, p. 1.

1994R3295 — EN — 01.07.1999 — 001.001 — 5

**▼M1**
holder of the right but are placed in one of the situations referred to in
paragraph 1(a) without the latter’s consent.

It shall similarly not apply to goods referred to in the first subparagraph
which have been manufactured or bear a trade mark under conditions
other than those agreed with the holder of the rights in question.

**▼B**

CHAPTER II

**▼M1**
**Prohibition of the entry, release for free circulation, export, re-**
**export, placing under a suspensive procedure, or placing in a free**
**zone or free warehouse, of goods infringing certain intellectual**
**property rights**

_Article 2_

The entry into the Community, release for free circulation, export,
re-export, placing under a suspensive procedure or placing in a free
zone or free warehouse of goods found to be goods referred to in
Article 1(2)(a) on completion of the procedure provided for in Article 6
shall be prohibited.

**▼B**

CHAPTER III

**Application for action by the customs authorities**

_Article 3_

1. In each Member State, the holder of a right may lodge an application in writing with the competent service of the customs authority for
action by the customs authorities where the goods are placed in one of
the situations referred to in Article 1 (1) (a).

**▼M1**
Where the applicant holds a Community trade mark, the application
may seek action not only by the customs authorities of the Member
State in which the application is lodged but by the customs authorities
of one or more other Member States as well.

Where electronic data interchange systems exist, Member States may
provide that the application for customs action can be made by using a
data processing technique.

**▼B**
2. The application referred to in paragraph 1 shall include:

— a sufficiently detailed description of the goods to enable the customs
authorities to recognize them,
— proof that the applicant is the holder of the right for the goods in
question.

The holder of the right must also provide all other pertinent information
available to him to enable the competent customs service to take a
decision in full knowledge of the facts without, however, that information being a condition of admissibility of the application.

**▼M1**

By way of indication, in the case of pirated goods or of goods infringing
patents or certificates, that information shall, wherever possible,
include:

**▼B**

— the place where the goods are situated or the intended destination,
— particulars identifying the consignment or packages,
— the scheduled date of arrival or departure of the goods,

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**▼B**
— the means of transport used,

— the identity of the importer, exporter or holder.

**▼M1**
3. Save where the second subparagraph of paragraph 1 is applied, the
application must specify the length of the period during which the
customs authorities are requested to take action.

Applications under the second subparagraph of paragraph 1 shall indicate the Member State or States in which the customs authorities are
requested to take action.

4. The applicant may be charged a fee to cover the administrative
costs incurred in dealing with the application.

The applicant or his representative may also be charged a fee in each of
the Member States where the decision granting the application is effective, to cover the costs incurred in implementing the said decision.

Such fees shall not be disproportionate to the service provided.

**▼B**
5. The competent customs service with which an application drawn
up pursuant to paragraph 2 has been lodged shall deal with the application and shall forthwith notify the applicant in writing of its decision.

Where that service grants the application, the service shall specify the
period during which the customs authorities shall take action. That
period may, upon application by the holder of the right, be extended by
the service which took the initial decision.

**▼M1**
Where an application is submitted under the second subparagraph of
paragraph 1 the said period shall be set at one year, but may be
extended for a further year, at the right-holder’s request, by the service
which took the original decision

**▼B**
Any refusal to grant an application shall give the reasons for refusal and
may form the subject of an appeal.

6. Member States may require the holder of a right, where his
application has been granted, or where action as referred to in Article 1
(1) (a) has been taken pursuant to Article 6 (1), to provide a security:

— to cover any liability on his part _vis-à-vis_ the persons involved in
one of the operations referred to in Article 1 (1) (a) where the
procedure initiated pursuant to Article 6 (1) is discontinued owing to
an act or omission by the holder of the right or where the goods in
question are subsequently found not be **►M1** goods referred to in
Article 1(2)(a) **◄**,

— to ensure payment of the costs incurred in accordance with this
Regulation, in keeping the goods under customs control pursuant to
Article 6.

**▼M1**
Where an application is submitted under the second subparagraph of
paragraph 1, the security shall be provided in each of the Member States
in which it is required and the decision granting the application is
effective.

7. The holder of the right is required to inform the service referred to
in paragraph 1 and, where appropriate, the service or services referred
to in the second subparagraph of Article 5(2), if his right should happen
no longer to be validly registered or to have expired.

**▼B**
8. Each Member State shall designate the service within the customs
authority competent to receive and deal with the applications referred to
in this Article.

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**▼M1**
9. Paragraphs 1 to 8 shall apply _mutatis mutandis_ to the extension of
the decision on the original application.

**▼B**

_Article 4_

Where, in the course of checks made under one of the customs procedures referred to in Article 1 (1) (a) and before an application by the
holder of the right has been lodged or approved, it appears evident to
the customs office that goods are **►M1** goods referred to in Article
1(2)(a) **◄**, the customs authority may, in accordance with the rules in
force in the Member States concerned, notify the holder of the right,
where known, of a possible infringement thereof. The customs authority
shall be authorized to suspend release of the goods or detain them for a
period of three working days to enable the holder of the right to lodge
an application for action in accordance with Article 3.

**▼M1**

_Article 5_

1. The decision granting the application by the holder of the right
shall be forwarded immediately to the customs offices of the Member
State which are liable to be concerned with the goods alleged in the
application to be goods referred to in Article 1(2)(a).

2. Where an application is submitted under the second subparagraph
of Article 3(1), the first indent of Article 250 of Regulation (EEC) No
2913/92 shall apply mutatis mutandis to the decision granting the said
application and the decisions extending or repealing it.

When the decision granting the said application has been taken, it shall
be up to the applicant to forward that decision together, where appropriate, with any other useful information and any translations to the
customs-authority service referred to in the first subparagraph of Article
3(1) in the Member State or States where the applicant has requested
that action be taken. However, with the agreement of the applicant, the
information and translations may be forwarded directly by the customsauthority service which took the decision. The applicant shall provide
additional information as deemed necessary for the execution of the
decision, at the request of the customs authorities of the other Member
States concerned.

The period referred to in the third subparagraph of Article 3(5) shall run
from the date on which the decision granting the application was taken.
The said decision shall not enter into force in the Member State or

States to which it is addressed until the submission referred to in the
second subparagraph has been made and, where appropriate, until the
fee referred to in the second subparagraph of Article 3(4) has been paid
and the security referred to in Article 3(6) has been provided. However,
the period of validity of the said decision may not, in any circumstances, exceed the period of one year from the date of adoption of the
decision granting the original application.

The said decision shall then be forwarded immediately to the national
customs offices liable to be concerned with the alleged counterfeit
goods to which it relates.

This paragraph shall apply _mutatis mutandis_ to any decision to extend
the original decision.

**▼B**

CHAPTER IV

**Conditions governing action by the customs authorities and by the**
**authority competent to take a substantive decision**

_Article 6_

1. Where a customs office to which the decision granting an application by the holder of a right has been forwarded pursuant to Article 5 is
satisfied, after consulting the applicant where necessary, that goods
placed in one of the situations referred to in Article 1 (1) (a) correspond

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**▼B**
to the description of the **►M1** goods referred to in Article 1(2)(a) **◄**
contained in that decision, it shall suspend release of the goods or detain
them.

The customs office shall immediately inform the service which dealt
with the application in accordance with Article 3. That service or the
customs office, shall forthwith inform the declarant and the person who
applied for action to be taken. In accordance with national provisions on
the protection of personal data, commercial and industrial secrecy and
professional and administrative confidentiality, the customs office or the
service which dealt with the application shall notify the holder of the
right, at his request, of the name and address of the declarant and, if
known, of those of the consignee so as to enable the holder of the right
to ask the competent authorities to take a substantive decision. The
customs office shall afford the applicant and the persons involved in
any of the operations referred to in Article 1 (1) (a) the opportunity to
inspect the goods whose release has been suspended or which have been
detained.

When examining the goods the customs office may take samples in
order to expedite the procedure.

2. The law in force in the Member State within the territory of which
the goods are placed in one of the situations referred to in Article 1 (1)
(a) shall apply as regards:

(a) referral to the authority competent to take a substantive decision
and immediate notification of the customs service or office referred
to in paragraph 1 of that referral, unless referral is effected by that
service or office;

(b) reaching the decision to be taken by that authority. In the absence of
Community rules in this regard, the criteria to be used in reaching
that decision shall be the same as those used to determine whether
goods produced in the Member State concerned infringe the rights
of the holder. Reasons shall be given for decisions adopted by the
competent authority.

_Article 7_

1. If, within 10 working days of notification of suspension of release
or of detention, the customs office referred to in Article 6 (1) has not
been informed that the matter has been referred to the authority
competent to take a substantive decision on the case in accordance with
Article 6 (2) or that the duly empowered authority has adopted interim
measures, the goods shall be released, provided that all the customs
formalities have been complied with and the detention order has been
revoked.

This period may be extended by a maximum of 10 working days in
appropriate cases.

**▼M1**
2. In the case of goods suspected of infringing patents, certificates or
design rights, the owner, importer or consignee of the goods shall be
able to have the goods in question released or their detention revoked
against provision of a security, provided that:

(a) the customs service or office referred to in Article 6(1) has been
informed, within the time limit referred to in paragraph 1 of this
Article, that the matter has been referred to the authority competent
to take a substantive decision referred to in the aforesaid paragraph
1;

(b) on expiry of the time limit, the authority empowered for this
purpose has not imposed interim measures; and

(c) all the customs formalities have been completed.

The security must be sufficient to protect the interests of the holder of
the right. Provision of the security shall be without prejudice to the
other remedies open to the holder of the right. Where the matter has
been referred to the authority competent to take a substantive decision
other than on the initiative of the holder of the patent, certificate or
design right, the security shall be released if that person does not

1994R3295 — EN — 01.07.1999 — 001.001 — 9

**▼M1**
exercise his right to institute legal proceedings within 20 working days
of the date on which he is notified of the suspension of release or
detention. Where the second subparagraph of paragraph 1 applies, this
period may be extended to a maximum of 30 working days.

**▼B**
3. The conditions governing storage of the goods during the period
of suspension of release or detention shall be determined by each
Member State.

CHAPTER V

**▼M1**
**Provisions applicable to goods found to be goods infringing an**
**intellectual property right**

_Article 8_

1. Without prejudice to the other forms of legal recourse open to the
right-holder, Member States shall adopt the measures necessary to allow
the competent authorities:

(a) as a general rule, and in accordance with the relevant provisions of
national law, to destroy goods found to be goods referred to in
Article 1(2)(a), or dispose of them outside the channels of
commerce in such a way as to preclude injury to the holder of the
right, without compensation of any sort and without cost to the
Exchequer;

(b) to take, in respect of such goods, any other measures having the
effect of effectively depriving the persons concerned of the
economic benefits of the transaction.

Save in exceptional cases, simply removing the trademarks which have
been affixed to the counterfeit goods without authorisation shall not be
regarded as having such effect.

2. The goods referred to in Article 1(2)(a) may be handed over to the
Exchequer. In that case, paragraph 1(a) shall apply.

3. In addition to the information given pursuant to the second
subparagraph of Article 6(1) and under the conditions laid down therein,
the customs office or the competent service shall inform the holder of
the right, upon request, of the names and addresses of the consignor, of
the importer or exporter and of the manufacturer of the goods found to
be goods referred to in Article 1(2)(a) and of the quantity of the goods
in question.

**▼B**

CHAPTER VI

**Final provisions**

_Article 9_

**▼M1**
1. Save as provided by the law of the Member State in which an
application in accordance with Article 3(2) is lodged or, in the case of
an application under the second subparagraph of Article 3(1), by the law
of the Member State in which goods referred to in Article 1(2)(a)
escape detection by a customs office, the acceptance of an application
shall not entitle the holder of a right to compensation where such goods
are not detected by a customs office and are released or no action is
taken to detain them in accordance with Article 6(1).

2. Save as provided by the law of the Member State in which the
application is made or, in the case of an application under the second
subparagraph of Article 3(1), by the law of the Member State in which
loss or damage is incurred, exercise by a customs office or by another
duly empowered authority of the powers conferred on them in regard to
taking measures against goods referred to in Article 1(2)(a) shall not
render them liable towards the persons involved in the operations

1994R3295 — EN — 01.07.1999 — 001.001 — 10

**▼M1**
referred to in Article 1(1)(a) or Article 4, in the event of their suffering
loss or damage as a result of their action.

**▼B**
3. The civil liability of the holder of a right shall be governed by the
law of the Member State in which the goods in question were placed in
one of the situations referred to in Article 1 (1) (a).

_Article 10_

This Regulation shall not apply to goods of a non-commercial nature
contained in travellers’ personal luggage within the limits laid down in
respect of relief from customs duty.

_Article 11_

Moreover, each Member State shall introduce penalties to apply in the
event of infringements of Article 2. **►M1** Such penalties shall be
effective and proportionate and constitute an effective deterrent. **◄**

_Article 12_

The provisions necessary for the application of this Regulation shall be
adopted in accordance with the procedure laid down in Article 13 (3)
and (4).

_Article 13_

1. The Commission shall be assisted by the Committee set up under
Article 247 of Regulation (EEC) No 2913/92.

2. The Committee shall examine any matter concerning implementation of this Regulation which its chairman may raise, either on his own
initiative or at the request of the representative of a Member State.

3. The representative of the Commission shall submit to the
Committee a draft of the measures to be taken. The Committee shall
deliver its opinion on the draft within a time limit which the chairman
may lay down according to the urgency of the measures to be taken.
The opinion shall be delivered by the majority laid down in Article 148
(2) of the Treaty in the case of decisions which the Council is required
to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the Committee shall be weighted in
the manner set out in that Article. The chairman shall not vote.

4. The Commission shall adopt measures which shall apply immediately. However, if the measures are not in accordance with the
opinion of the Committee, they shall be communicated by the Commission to the Council forthwith. In the event:

— the Commission shall defer application of the measures which it has
decided for not more than three months from the date of their
communication,

— the Council, acting by a qualified majority, may take a different
decision within the time limit provided for in the first indent.

_Article 14_

Member States shall communicate all relevant information on the
application of this Regulation to the Commission.

The Commission shall communicate that information to the other

Member States.

For the purpose of the application of this Regulation, the provisions of
Regulation (EEC) No 1468/81 of 19 May 1981 on mutual assistance
between the administrative authorities of the Member States and
cooperation between the latter and the Commission to ensure the correct

**▼B**

1994R3295 — EN — 01.07.1999 — 001.001 — 11

application of the law on customs or agricultural matters ( [1] ) shall apply
_mutatis mutandis_ .

The details of the information procedure shall be drawn up in the
framework of the implementing provisions in accordance with Article
13 (2), (3) and (4).

_Article 15_

Within two years of the entry into force of this Regulation, the Commission shall, on the basis of the information referred to in Article 14,
report to the European Parliament and the Council on the operation of
the system particularly with regard to the economic and social
consequences of counterfeiting and shall propose any amendments or
additions required, within a period of two years from the implementation of this Regulation.

_Article 16_

Regulation (EEC) No 3842/86 shall be repealed as from the date of
implementation of this Regulation.

_Article 17_

This Regulation shall enter into force on the third day following its
publication in the _Official Journal of the European Communities_ .

It shall apply from 1 July 1995.

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

( [1] ) OJ No L 144, 2. 6. 1981, p. 1. Regulation as last amended by Regulation
(EEC) No 945/87 (OJ No L 90, 2. 4. 1987, p. 3).