Council Regulation (EEC) No 3842/86 of 1 December 1986 laying down measures to prohibit the release for free circulation of counterfeit goods

COUNCIL  REGULATION (EEC) No 3842/86
of 1 December 1986
laying down measures to prohibit the release for free circulation of counterfeit goods
THE COUNCIL OF THE EUROPEAN COMMUNITIES
,
Having regard to the Treaty establishing the European Economic Community and in particular Articles 113 and 235 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 the marketing of goods bearing a trade mark without authorization, hereinafter referred to as 'counterfeit goods', causes considerable prejudice to law-abiding manufacturers and traders and misleads consumers; whereas such goods should as far as possible be prevented from being placed on the Community market and measures should be adopted to deal effectively with this unlawful activity without impeding the freedom of legitimate trade; whereas this objective is also being pursued through efforts being made along the same lines at international level;
Whereas insofar as counterfeit goods are imported from third countries it is important to prohibit their release for free circulation in the Community and to introduce an appropriate procedure enabling the customs authorities to act to ensure that such a prohibition is observed under optimum conditions;
Whereas action by the customs authorities must consist in suspending the release for free circulation of goods suspected of being counterfeit for as long as is necessary to enable it to be determined whether the goods are actually counterfeit;
Whereas the objective to be achieved by the introduction of such a procedure does not require the drawing up of Community provisions either as regards the designation of the authority competent to determine whether the goods entered for free circulation are counterfeit or as regards the procedures to be followed for referral to that authority; whereas in the absence of Community regulations on the subject the said competent authority should furthermore decide cases submitted to it with reference to the criteria which are used to determine whether the goods produced in the Member State concerned infringe the rights of the owner of a trade mark;
Whereas, on the other hand, it is necessary to determine the measures to be applied to goods entered for free circulation where it is established that they are counterfeit; whereas those measures must not only deprive those responsible for the importation of such goods of the economic benefits of the transaction 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 or sent in small consignments of a non-commercial nature, it is necessary to exclude from this Regulation goods which may be counterfeit which are imported from third countries within the limits laid down by Community rules in respect of relief from customs duty and application of the standard rate of duty specified in Title II C of the Preliminary Provisions of the Common Customs Tariff;
Whereas uniform application of the common rules laid down by this Regulation must be ensured and to that end a Community procedure must be provided enabling measures implementing these rules to be adopted within appropriate periods;
Whereas this Regulation does not affect national provisions applicable to goods released for free circulation which are not counterfeit goods within the meaning of this Regulation but which would, if marketed, affect an intellectual property right in the Member State concerned;
Whereas the provisions of this Regulation are designed to discourage international trade in counterfeit goods; whereas the specific provisions of the Treaty do not confer on the Community institutions the power to adopt all the measures which are necessary to achieve this objective, and in particular measures to which goods found to be counterfeit must be subjected; whereas it is therefore necessary to base the provisions of this Regulation also on Article 235,