Source: EURLEX
Language: en
Format: md

1995R1367 — EN — 01.05.2004 — 002.001 — 1

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

**►B** **►M1 COMMISSION REGULATION (EC) No 1367/95**

**of 16 June 1995**

**laying down provisions for the implementation of Council Regulation (EC) No 3295/94 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 133, 17.6.1995, p. 2)

Amended by:

Official Journal

No page date

**►M1** Commission Regulation (EC) No 2549/1999 of 2 December 1999 L 308 16 3.12.1999

Amended by:

**►A1** Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,
the Republic of Lithuania, the Republic of Hungary, the Republic of
Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the European
Union is founded

L 236 33 23.9.2003

- **B**

- **M1**

- **B**

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1995R1367 — EN — 01.05.2004 — 002.001 — 2

**COMMISSION REGULATION (EC) No 1367/95**

**of 16 June 1995**

**laying down provisions for the implementation of Council Regula-**
**tion (EC) No 3295/94 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**

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 3295/94 of 22 December
1994 laying down measures to prohibit the release for free circulation,
export, re-export or entry for a suspensive procedure of counterfeit and
pirated goods, and in particular Articles 12, 13 and 14 thereof ( [1] ),

Whereas Regulation (EC) No 3295/94 introduced common rules with a
view to prohibiting the release for free circulation, export, re-export or
entry for a suspensive procedure of counterfeit and pirated goods and
dealing effectively with the illegal marketing of such goods without
impeding the freedom of legitimate trade;

Whereas the nature of the proof of ownership of intellectual property
required by the second indent of the first subparagraph of Article 3
(2) of Regulation (EC) No 3295/94 should be established;

Whereas Article 14 of Regulation (EC) No 3295/94 provides that
Member States are to communicate to the Commission all relevant
information for applying that Regulation and that the Commission is
to communicate that information to the other Member States; whereas
the procedure for exchanging that information should be laid down;

Whereas Commission Regulation (EEC) No 3077/87 ( [2] ) should be
repealed;

Whereas the measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

HAS ADOPTED THIS REGULATION:

_Article 1_

- **M1** For the purposes of Article 1(2)(b) of Regulation (EC) No 3295/
94 ◄, hereinafter referred to as ‘the basic Regulation’ the holder of a
right or any other person authorized to use the right may be represented
by a natural or legal person; such a person includes a collecting society
which has as its sole or principal purpose the management or administration of copyrights or neighbouring rights.

_Article 2_

The evidence that the applicant holds an intellectual property right
referred to in Article 1(2)(a) of the basic Regulation, which must be
submitted when applying for action in accordance with the second
indent of the first subparagraph of Article 3(2) of that Regulation, shall
be as follows:

(a) where the holder of the right makes himself the application:

— in the case of a right that is registered or for which an application has been lodged, proof of registration with the relevant
office or lodging of the application,

( [1] ) OJ No L 341, 30. 12. 1994, p. 8.
( [2] ) OJ No L 291, 15. 10. 1987, p. 19.

1995R1367 — EN — 01.05.2004 — 002.001 — 3

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— in the case of a copyright, neighbouring right or design right
which is not registered or for which an application has not
been lodged, any evidence of authorship or of his status as
original holder;

(b) where the application is made by any other person authorised to
use one of the rights referred to in Article 1(2)(a) of the basic
Regulation, in addition to the proof required under point (a) of
this Article, the document by virtue of which the person is
authorised to use the right in question;

(c) where a representative of the holder or of any other person
authorised to use one of the rights referred to in Article 1(2)(a) of
the basic Regulation applies, in addition to the proof required under
points (a) and (b) of this Article, proof of authorisation to act.

_Article 2a_

1. The form on which the application for action referred to in
Article 3(1), second subparagraph, of the basic Regulation, as well as
the Decision granting the application referred to in Article 3(5) of the
basic Regulation, shall conform to the specimen shown in the Annex to
this Regulation.

Where additional pages are to be used, as referred to in the second
subparagraph of paragraph 8, they shall be considered to be an integral
part of the form.

The form shall be used in accordance with the provisions of the basic
Regulation and of this implementing Regulation.

2. (a) the form shall be printed on white paper, without mechanical
pulp, dressed for writing purposes and weighing not less than
55 g/m [2] ;

(b) the forms shall measure 210 millimetres × 297 millimetres, with
a maximum tolerance as to length of 5 mm less and 8 mm more.

3. Without prejudice to the implementation of the provisions set out
in Article 3(1), third subparagraph, of the basic Regulation, Member
States shall print or have printed forms which bear an indication of
the name and address of the printer or a sign allowing its identification.

4. Forms shall be printed and filled out in an official language of the
Community designated by the competent authorities of the Member
State in which the application for action is submitted.

5. Except in the case where the form is made available to the applicant in an electronic format, at one or more publicly available sites
directly accessible via a computer, the application for action form shall
be provided, on request, by the appropriate service of the customs
authority referred to in Article 3(1) of the basic Regulation.

6. Forms shall be filled in by mechanical means or legibly by hand;
in the latter case, they shall be filled in using ink and in block capitals.
Whatever the process used, forms shall not contain erasures, overwritten words or other alterations.

Should the form be completed by computer, it may subsequently be
reproduced by private printing methods.

7. The form shall be composed of two copies:

— one copy, marked number 1, for the Member State to which the
application for action is submitted, and

— one copy, marked number 2, for the holder of the Community trade
mark.

8. The applicant shall complete boxes 1 to 9 of the form, sign both
copies and attach to it the justification and other relevant information
referred to in Article 3(2) of the basic Regulation.

Should the space in box 4 of the form be insufficient, the applicant
may provide, on additional pages, further details to assist in the identification of the goods. In this case, the applicant shall indicate the

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number of additional pages used in the space provided in box 4 of the
form.

9. The duly completed and signed form, accompanied by a number
of extracts corresponding to the number of Member States indicated in
box 8 of the form, as well as the evidence and information referred to
in paragraph 8, shall be submitted to the appropriate service of the
customs authority referred to in Article 3(1) of the basic Regulation.

10. When the appropriate service of the customs authority referred
to in Article 3(1) of the basic Regulation approves an application for
action, it shall indicate the final date of validity of the decision and
affix its signature and stamp. The copy for the holder of the Community trade mark as well as the validated extracts shall then be returned
to the applicant.

When the request for assistance is rejected by the appropriate service
of the customs authority referred to in Article 3(1) of the basic Regulation, it shall indicate not only the reasons for the refusal, but also the
contact details of the authority to which an appeal can be made and
shall affix its stamp and signature. The copy for the holder of the
Community trade mark shall then be returned to the interested party.

In all cases, the copy of the form for the Member State in which the
application for action is submitted shall be retained and preserved in
its files for at least two years from the date of issue.

11. Only in cases where the extract of a decision granting the application is addressed to the Member State(s) where the applicant has
requested that action be taken in accordance with Article 5(2), second
subparagraph, second sentence, the Member State which receives this
extract shall complete without delay the part ‘acknowledgement of
receipt’ of the form by indicating the date of receipt, and return a
photocopy of this extract to the relevant authority indicated in box 3.

- **B**

_Article 3_

The pertinent information referred to in the second subparagraph of
Article 3 (2) of the basic Regulation shall include particulars of the
goods, notably their value and their packaging, plus any information
that could help distinguish them from goods for which there is a
protected right. under the terms of the second subparagraph of Article
3 (2), this information should be as detailed as possible to enable the
customs authorities, using risk analysis, to identify suspect consignments accurately and without excessive effort.

_Article 4_

If an application is lodged in accordance with Article 4 of the basic
Regulation before expiry of the time-limit of three days, the time-limits
referred to in Article 7 of the Regulation shall be counted from the day
of receipt of the request for action.

If the customs authority suspends release of the goods or detains them
in accordance with Article 4 of the basic Regulation, it shall forthwith
inform the declarant.

_Article 5_

1. Each Member State shall, at the earliest opportunity, send the
Commission details of:

(a) the laws, regulations or administrative provisions which it adopts in
implementation of this Regulation. It shall likewise inform the
Commission of any provisions of its national law which preclude
informing the holder as provided for in the second subparagraph
of Article 6 (1) and in Article 8 (3) of the basic Regulation;

(b) the competent customs department responsible for receiving and
handling the holder's written application, referred to in Article 3
(8) of the basic Regulation.

1995R1367 — EN — 01.05.2004 — 002.001 — 5

- **B**

2. To enable the Commission to monitor the effective application of
the procedure laid down by the basic Regulation and draw up, in due
course, the report referred to in Article 15 thereof, each Member State
shall send the Commission:

(a) at the end of each calendar year, a list of all the written applications under Article 3 (1) of the basic Regulation, together with the
name and address of the holder, a brief description of the goods
and, where relevant, the trademark, and the action taken in
response to the application;

(b) at the end of each quarter, a list of specific cases in which goods
have been detained or their release suspended. The information
provided on each case must include:

— the name and address of the holder of the right and a brief
description of the goods and, where relevant, the trademark, and
— the customs situation, country of consignment or destination,
description, quantity and declared value of the goods the release
of which has been suspended or which have been detained, and
the date of such suspension or detention.

3. The Commission shall, in an appropriate manner, communicate to
all Member States such information as it receives pursuant to this
Article. Details of cases provided for in point (b) of paragraph 2 shall
be sent quarterly to the Member States by the Commission.

4. Details communicated pursuant to paragraphs 1, 2 and 3 may be
used only for the purposes established by the basic Regulation.

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5. The Commission shall publish in the ‘C’ series of the _Official_
_Journal of the European Communities_ the list of the services within
the customs authority which are referred to in Article 3(8) of the basic
Regulation.

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_Article 6_

Regulation (EEC) No 3077/87 is hereby repealed with effect from 1
July 1995.

_Article 7_

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.

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(1)

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_ANNEX_

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(1) (2)

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(1)

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(1) (2)

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