Subsidiariteitstoets richtlijn betreffende strafrechtelijke maatregelen ter handhaving intellectuele eigendomsrechten; Richtlijnvoorstel
Staten-Generaal — Kamerstuk 
Datum: 2014-07-05 00:00:00.000000
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Kamerstuk 30587, nr. 1

 
 
 

Kamerstuk

Datum publicatie
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14-06-2006

Eerste en Tweede Kamer der Staten-Generaal

2005-2006

30587 nr. 1;A

26-04-2006

 

 

 
 
 Toon meer van: Inhoudsopgave
 
 

 
 AanhefLichaamDIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILon criminal measures aimed at ensuring the enforcement
of intellectual property rightsEXPLANATORY MEMORANDUMJustification for the proposalContent of the proposalArticle 1Article 2Article 3Article 4Article 5Article 6Article 7Article 8Article 9Article 10Article 11DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILon criminal measures aimed at ensuring the enforcement
of intellectual property rightsArticle 1Objective and scopeArticle 2DefinitionArticle 3OffencesArticle 4Nature of penaltiesArticle 5Level of penaltiesArticle 6Extended powers of confiscationArticle 7Joint investigation teamsArticle 8Initiation of criminal proceedingsArticle 9TransposalArticle 10Entry into forceArticle 11
 

 
 
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30 587Subsidiariteitstoets op richtlijnvoorstel betreffende strafrechtelijke
maatregelen ter verzekering van de handhaving van intellectuele eigendomsrechten
(COM (2006) 168 fin.)Anr. 1RICHTLIJNVOORSTELBrussels, 26.4.2006COM(2006) 168 final2005/0127 (COD)Amended proposal for aDIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILon criminal measures aimed at ensuring the enforcement
of intellectual property rights(presented by the Commission)EXPLANATORY MEMORANDUMJustification for the proposalThis proposal for a Directive amends the proposal for a Parliament and
Council Directive on criminal measures aimed at ensuring the enforcement of
intellectual property rights (2005/0127 COD). It puts into effect the Communication
from the Commission of 23 November 2005 (COM(2005) 583 final) on
the implications of the Court’s judgment of 13 September 2005
(Case C 176/03 Commission v Council). It was held in that judgment that provisions
of criminal law required for the effective implementation of Community law
come under the EC Treaty. The Commission states in its Communication that
it will make the necessary changes to pending proposals as and when required.
It specifically mentions the proposal for a Parliament and Council Directive
on criminal measures aimed at ensuring the enforcement of intellectual property
rights and the proposal for a Council Framework Decision to strengthen the
criminal law framework to combat intellectual property offences (COM(2005)
276 final). Consequently, the proposal for a Framework Decision
has been withdrawn and a proposal drawn up amending the proposal for a Directive
on criminal measures.The provisions in the proposal for a Framework Decision relating to penalties
and extended powers of confiscation have now been incorporated in the new
proposal for a Directive.The only provisions that have not been taken over are those relating to
jurisdiction and the coordination of proceedings, contained in Article 5 of
the proposal for a Framework Decision. The Commission plans to take a horizontal
approach to this subject under its Green Paper on conflicts of jurisdiction
and the principle of ne bis in idem in criminal proceedings, adopted on 23 December
20051. It does not consider it essential to lay
down specific arrangements for the protection of intellectual property.Counterfeiting and piracy, and infringements of intellectual property
in general, are a constantly growing phenomenon which nowadays has an international
dimension, since they are a serious threat to national economies and governments.
The disparities between the national systems of penalties, apart from hampering
the proper functioning of the internal market, make it difficult to combat
counterfeiting and piracy effectively. In addition to the economic and social
consequences, counterfeiting and piracy also pose problems for consumer protection,
particularly when health and safety are at stake. Increasing use of the Internet
enables pirated products to be distributed instantly around the globe. Finally,
this phenomenon appears to be increasingly linked to organised crime. Combating
this phenomenon is therefore of vital importance for the Community. Counterfeiting
and pirating have become lucrative activities in the same way as other large-scale
criminal activities such as drug trafficking. There are high potential profits
to be made without risk of serious legal penalties. Additional provisions
to strengthen and improve the fight against counterfeiting and piracy are
therefore necessary to supplement Directive 2004/48/EC of 29 April
2004 on the enforcement of intellectual property rights. In addition to the
civil and administrative measures, procedures and remedies provided for in
Directive 2004/48/EC, criminal penalties also constitute, in appropriate cases,
a means of enforcing intellectual property rights2.A start was made on harmonisation with the entry into force of the TRIPS
agreement which lays down minimum provisions on means of enforcing trade-related
intellectual property rights. These include the implementation of criminal
procedures and criminal penalties, but there are still major disparities in
the legal situation in the Community which do not allow the holders of intellectual
property rights to benefit from an equivalent level of protection throughout
the Community. As regards criminal penalties, there are considerable differences,
particularly as regards the level of punishment laid down by national legislation.As regards impact on fundamental rights, it should be emphasised that
the direct objective of this initiative is to implement Article 17(2) of the
Charter of Fundamental Rights which states that «Intellectual property
shall be protected»; it does this by approximation of legislation while
respecting the different legal traditions and systems of the Member States
as well as other fundamental rights and principles recognised by the Charter.
The level of sentences has been chosen pursuant to the seriousness of the
different forms of wrongful conduct, in accordance with Article 49(3) of the
Charter to the effect that sentences should not be disproportionate to the
offence.Since this objective may be better achieved at Community level, the Community
may take measures in accordance with the principle of subsidiarity as set
out in Article 5 of the Treaty.Content of the proposalArticle 1This Article sets out the subject-matter and scope of the Directive, which
concerns the measures necessary to ensure the enforcement of intellectual
property rights. As in Directive 2004/48/EC on the enforcement of intellectual
property rights, the expression «intellectual property rights«
encompasses all intellectual property rights. Just like Article 17(2) of the
Charter of Fundamental Rights of the European Union, which provides that «intellectual
property shall be protected», this is a horizontal measure.The Directive is to apply to any infringement of intellectual property
rights as provided for by Community law and/or by the national law of the
Member States, in the same way as Directive 2004/48/EC. Commission statement
2005/295/EC on Article 2 of Directive 2004/48/EC lists these rights, with
the aim of providing greater legal certainty regarding the scope of the Directive1. The Directive is to apply without prejudice to more
stringent provisions in the Member States.Article 2This Article defines the concept of a legal person for the purposes of
the Directive.Article 3This Article obliges Member States to consider all intentional infringements
of an intellectual property right on a commercial scale as a criminal offence.
It also covers attempting, aiding or abetting and inciting such offences.
The «commercial scale» criterion is borrowed from Article 61 of
the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement), concluded on 15 April 1994 and signed by all the members
of the World Trade Organisation. Article 61 obliges Members to «provide
for criminal procedures and penalties to be applied at least in cases of wilful
trademark counterfeiting or copyright piracy on a commercial scale. Remedies
available shall include imprisonment and/or monetary fines sufficient to provide
a deterrent, consistently with the level of penalties applied for crimes of
a corresponding gravity. In appropriate cases, remedies available shall also
include the seizure, forfeiture and destruction of the infringing goods and
of any materials and implements the predominant use of which has been in the
commission of the offence. Members may provide for criminal procedures and
penalties to be applied in other cases of infringement of intellectual property
rights, in particular where they are committed wilfully and on a commercial
scale.»The infringement must be intentional, that is to say that the act must
be deliberate, whether it is an actual infringement, an attempt at infringement,
or aiding and abetting or inciting such an offence. This does not affect specific
liability systems such as the system laid down for Internet service providers
in Articles 12 to 15 of Directive 2000/31/EC on electronic commerce2.Article 4This article concerns the nature of penalties: besides imprisonment for
natural persons, the Directive lays down a range of penalties to be imposed
on both natural and legal persons, such as fines and the seizure of goods
belonging to the offender, including the infringing goods and the materials,
implements or media used predominantly for the manufacture or distribution
of the goods in question. Other penalties are provided for specific cases:
destruction of infringing goods and goods principally used in the manufacture
of the goods in question, total or partial closure, on either a permanent
or a temporary basis, of the establishment or shop primarily used to commit
the infringement. Provision is also made for a permanent or temporary ban
on engaging in commercial activities, placement under judicial supervision
or judicial winding-up, and a ban on access to public assistance or subsidies.
Finally, the publication of judicial decisions is provided for. This can serve
as a means of dissuasion and as a channel of information both for right holders
and for the public at large.Article 5This article concerns the level of criminal penalties: offences must incur
a maximum term of at least four years’ imprisonment when they are committed
under the aegis of a criminal organisation. The same applies where the offences
carry a health or safety risk. The threshold of four years’ imprisonment
was chosen because it broadly corresponds to the criterion used to identify
a serious offence. It is the threshold selected in Joint Action 98/733/JHA
and in the proposal for a Council Framework Decision on the fight against
organised crime (COM(2005) 6 final) and in the United Nations Convention against
Organised Transnational Crime. For natural persons or legal entities who commit
the offences listed in Article 3, the penalties include criminal and non-criminal
fines to a maximum of at least EUR 100 000 for cases other than
the most serious cases and to a maximum of at least EUR 300 000
for offences carried out under the aegis of a criminal organisation or which
carry a health or safety risk. It must be possible for this factor to be taken
into account where the risk is deemed to be present, even where the dangerous
product has not yet caused any damage.A risk to personal health or safety exists where the counterfeit product
placed on the market directly exposes people to a risk of illness or accident.Article 6This article provides for the full or partial confiscation of goods belonging
to persons convicted of offences committed in the circumstances set out in
Article 5. It refers to the provisions of Article 3 of Council Framework Decision
2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related
Proceeds, Instrumentalities and Property1.Article 7The Framework Decision of 13 June 2002 provides the structure needed
to set up joint investigation teams. To facilitate criminal investigations
into intellectual property offences, the Member States must allow the holders
of intellectual property rights concerned, or their representatives, and experts
to assist the investigations carried out by these teams. It is very difficult
to carry out investigations in this area and it is often essential to have
the active participation of the victims, of representatives of the holder
of the intellectual property rights or of experts in order to reach conclusions,
and in particular to establish that products have been counterfeited. In the
event of doubt, the victims or their representatives will thus be able to
confirm rapidly whether the products discovered in an investigation have indeed
been counterfeited. This will facilitate the search by joint investigation
teams for evidence of intellectual property offences. Member States have a
good deal of latitude in this regard.Article 8The purpose of this article is to ensure that investigations into, or
prosecution of, counterfeiting and piracy offences are not dependent on a
report or accusation made by a person subjected to the offence, at least if
the acts were committed in the territory of the Member State. Such a measure
is necessary to ensure that the conditions are right for carrying out investigations
into intellectual property offences. It is often the case that stocks of suspected
counterfeit products are discovered, but it is sometimes difficult to contact
or even identify quickly the holder of the rights in the internal market.
The victims of counterfeiting may be located in any part of the Community
territory and may be small or medium-sized enterprises and not just large
enterprises selling well-known products. Investigations would be hampered
if a prior complaint by the victim were required. Intellectual property offences
are often committed without the knowledge of the holder of the rights, and
the absence of a complaint does not amount to negligence on the victim’s
part.Article 9This Article concerns the measures for transposing the Directive into
the internal law of the Member States. The deadline of eighteen months is
modelled on the provisions of other Directives.Article 10This Article lays down that the Directive enters into force on the twentieth
day following its publication in the Official Journal, pursuant to the provisions
of Article 254(1) of the EC Treaty.Article 11This Article lays down that this Directive is addressed to the Member
States. 2005/0127 (COD)Amended proposal for aDIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILon criminal measures aimed at ensuring the enforcement
of intellectual property rights(Text with EEA relevance)THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in
particular Article 95 thereof,Having regard to the proposal from the Commission1,Having regard to the opinion of the European Economic and Social Committee2,Having regard to the opinion of the Committee of the Regions3,Acting in accordance with the procedure laid down in Article 251 of the
Treaty4,(1) The Green Paper on the fight against counterfeiting and piracy in
the Single Market presented by the Commission on 15 October 1998 noted
that counterfeiting and piracy had grown into an international phenomenon
with major repercussions at economic and social level and in terms of consumer
protection, especially as regards public health and safety. An action plan
was drawn up as part of the follow-up to the Green Paper and was included
in a communication on the same subject from the Commission to the Council,
the European Parliament and the Economic and Social Committee on 30 November
2000.(2) In its conclusions, the Brussels European Council of 20 and 21 March
2003 invited the Commission and the Member States to improve exploitation
of intellectual property rights by taking forward measures against counterfeiting
and piracy.(3) At international level, all Member States, as well as the Community
itself, as regards matters within its competence, are bound by the Agreement
on Trade-Related Aspects of Intellectual Property (the «TRIPS Agreement»),
concluded in the framework of the World Trade Organisation and approved by
Council Decision 94/800/EC5. The TRIPS Agreement
contains, in particular, provisions on criminal matters which are common standards
applicable at international level, but the disparities between Member States
are still too great, and they do not permit effective combating of intellectual
property offences, particularly the most serious ones. This causes a loss
of confidence in the Internal Market in business circles, with a consequent
reduction in investment in innovation and creation.(4) The Commission also adopted in November 2004, an Intellectual Property
Rights Enforcement Strategy towards third countries.(5) Directive 2004/48/EC of the European Parliament and of the Council
of 29 April 2004 on the enforcement of intellectual property rights6 lays down measures, procedures and civil and administrative
remedies. A sufficiently dissuasive set of penalties applicable throughout
the Community is needed to make the provisions laid down in this Directive
complete. Certain criminal provisions need to be harmonised so that counterfeiting
and piracy in the internal market can be combated effectively. The Community
legislator has the power to take the criminal-law measures that are necessary
to guarantee the full effectiveness of the rules it lays down on the protection
of intellectual property.(6) Building on the Commission Communication on a customs response to
counterfeiting and piracy adopted in October 20051,
the Council has adopted a Resolution on 13 March 2006, whereby it underlines
that the Lisbon Strategy objectives «can only be achieved through a
well-functioning internal market with adequate measures to encourage investment
in the knowledge-based economy and recognises the threat posed by the serious
growth in counterfeiting and piracy to the Union’s knowledge-based economy
and in particular to health and safety (...)».(7) The level of sentencing for natural and legal persons who have committed
such offences must be harmonised. In particular, the rules on prison sentences,
fines and confiscation must be harmonised.(8) Provisions must be laid down to facilitate criminal investigations.
The Member States must ensure that the holders of intellectual property rights
concerned, or their representatives, and experts are allowed to assist the
investigations carried out by joint investigation teams.(9) To facilitate investigations or criminal proceedings concerning intellectual
property offences, these may not be dependent on a report or accusation made
by a person subjected to the offence.(10) This Directive does not affect specific liability systems such as
that laid down for Internet service providers in Articles 12 to 15 of Directive
2000/31/EC on electronic commerce2.(11) As the objective of this Directive cannot be achieved adequately
by the Member States acting alone and could better be achieved by action at
Community level, the Community may take measures in accordance with the principle
of subsidiarity as declared by Article 5 of the Treaty establishing the European
Community. In accordance with the principle of proportionality, as set out
in that Article, this Directive does not go beyond what is necessary in order
to achieve that objective.(12) This Directive respects fundamental rights and observes the principles
recognised by the Charter of Fundamental Rights of the European Union. In
particular, this Directive seeks to ensure full respect for intellectual property,
in accordance with Article 17(2) of the Charter,HAVE ADOPTED THIS DIRECTIVE:Article 1Objective and scopeThis Directive lays down the criminal measures necessary to ensure the
enforcement of intellectual property rights.These measures shall apply to intellectual property rights provided for
in Community legislation and/or national legislation in the Member States.Article 2DefinitionFor the purposes of this Directive, «legal person» means any
legal entity having such status under the applicable national law, except
for States or any other public bodies acting in the exercise of their prerogative
of public power, as well as public international organisations.Article 3OffencesMember States shall ensure that all intentional infringements of an intellectual
property right on a commercial scale, and attempting, aiding or abetting and
inciting such infringements, are treated as criminal offences.Article 4Nature of penalties1. For the offences referred to in Article 3, the Member States shall
provide for the following penalties:a) for natural persons: custodial sentences;b) for natural and legal persons:i) fines;ii) confiscation of the object, instruments and products stemming from
infringements or of goods whose value corresponds to those products.2. For the offences referred to in Article 3, the Member States shall
provide that the following penalties are also available in appropriate cases:(a) destruction of the goods infringing an intellectual property right;(b) total or partial closure, on a permanent or temporary basis, of the
establishment used primarily to commit the offence;(c) a permanent or temporary ban on engaging in commercial activities;(d) placing under judicial supervision;(e) judicial winding-up;(f) a ban on access to public assistance or subsidies;(g) publication of judicial decisions.Article 5Level of penalties1. Each Member State shall take the necessary measures to ensure that,
when committed by natural persons, the offences referred to in Article 3 are
punishable by a maximum sentence of at least four years’ imprisonment
when committed under the aegis of a criminal organisation within the meaning
of Framework Decision .... on the fight against organised crime, or where
they carry a health or safety risk.2. Member States shall take the necessary measures to ensure that, when
committed by natural persons or legal entities, the offences referred to in
Article 3 are punishable by effective, proportionate and dissuasive penalties.
These penalties shall include criminal and non-criminal fines:(a) to a maximum of at least EUR 100 000 for cases other than the
most serious cases;(b) to a maximum of at least EUR 300 000 for cases referred to in
paragraph 1.Article 6Extended powers of confiscationThe Member States shall take the necessary measures to allow the total
or partial confiscation of goods belonging to convicted natural or legal persons
in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February
2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property,
at least where the offences are committed under the aegis of a criminal organisation,
within the meaning of Framework Decision .... on the fight against organised
crime, or where they carry a health or safety risk.Article 7Joint investigation teamsThe Member States must ensure that the holders of intellectual property
rights concerned, or their representatives, and experts, are allowed to assist
the investigations carried out by joint investigation teams into the offences
referred to in Article 3.Article 8Initiation of criminal proceedingsMember States shall ensure that the possibility of initiating investigations
into, or prosecution of, offences covered by Article 3 are not dependent on
a report or accusation made by a person subjected to the offence, at least
if the acts were committed in the territory of the Member State.Article 9Transposal1. Member States shall bring into force the provisions necessary to comply
with this Directive by ....... at the latest [eighteen months after the
date of its adoption]. They shall forthwith communicate to the Commission
the text of those provisions and a correlation table between those provisions
and this Directive.When Member States adopt these provisions, they shall contain a reference
to this Directive or shall be accompanied by such reference at the time of
their official publication. The procedure for such reference shall be adopted
by Member States.2. Member States shall communicate to the Commission the provisions of
national law which they adopt in the field covered by this Directive.Article 10Entry into forceThis Decision shall enter into force on the day following its publication
in the Official Journal of the European Union.Article 11This Directive is addressed to the Member States.Done at Brussels,For the European ParliamentThe PresidentFor the CouncilThe PresidentXNoot1COM(2005) 696 final.XNoot2Recital 28 to Directive 2004/48/EC of 29 April 2004 states that «in
addition to the civil and administrative measures, procedures and remedies
provided for under this Directive, criminal sanctions also constitute, in
appropriate cases, a means of ensuring the enforcement of intellectual property
rights.»XNoot1OJ L 94, 13.4.2005, p. 37.XNoot2OJ L 178, 17.7.2000, p. 1.XNoot1OJ L 68, 15.3 2005, p. 49.XNoot1OJ C [...], [...], p. [...].XNoot2OJ C [...], [...], p. [...].XNoot3OJ C [...], [...], p. [...].XNoot4OJ C [...], [...], p. [...].XNoot5OJ L 336, 23.12.1994, p. 1.XNoot6OJ L 195, 2.6.2004, p. 16.XNoot1COM(2005) 479 final of 11.10.2005XNoot2OJ L 178, 17.7.2000, p. 1. 
 
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