Заседание окончателен a6-0073/2007
I. Introduction: the proposals of 12 July 2005
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I. Introduction: the proposals of 12 July 2005 1. On 12 July 2005 the Commission sent the European Parliament and the Council a proposal for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights (2005/0127(COD)); at the same time, it sent the Council a proposal for a Council framework decision to strengthen the criminal law framework to combat intellectual property offences (2005/0128(CNS)). 2. The proposal for a directive required Member States to ensure that all intentional infringements of intellectual property rights on a commercial scale, and attempting, aiding or abetting and inciting such infringements, were treated as criminal offences. It provided for a series of penalties ranging from confiscation of the counterfeit goods to custodial sentences for culprits. It also made provision for various additional penalties, including closure of establishments used for counterfeiting purposes, a ban on engaging in commercial activities and publication of the judicial verdict. However, the proposal for a directive simply required Member States to prosecute and punish certain actions, without specifying the level of the penalty to be imposed1. 3. Meanwhile, the proposal for a framework decision sought to strengthen the criminal law measures to approximate national legislation on infringements of intellectual property rights and to facilitate cooperation between Member States to repress the offences in question. In particular, to supplement the accompanying proposal for a directive, the proposal for a framework decision sought to set minimum penalties for the offences in question: a maximum of at least four years' imprisonment in the case of offences committed under the aegis of a criminal organisation within the meaning of the future framework decision on the fight against organised crime (2005/0003(CNS)) or where such offences involved a health or safety risk, together with a fine up to a maximum of at least EUR 300 000. II. The judgment of the Court of Justice of 13 September 2005 and the Commission's position 1. While the procedure for the adoption of the above-mentioned proposals was in progress, the Court of Justice issued a judgment on 13 September 2005, in Case C-176/03 Commission v Council, which, while finding that, as a general rule, criminal matters did not fall within the Community's competence, stated that that finding did not 'prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective' (point 49). 2. Furthermore, the Court considered that, for the purpose of establishing whether the correct legal basis had been selected for a Community act, the aim and content of the act itself had to be taken into account. Consequently, as the principal aim and content of the framework decision at issue in the case in question1 was environmental protection, it should have been based on Article 175 of the ECT (first pillar) and not on Title VI TEU (third pillar) (point 51). 3. The Commission therefore adopted a Communication2 which carries the Court of Justice's finding to its logical conclusion, namely that there are no restrictions on adopting provisions relating to criminal matters under the first pillar in any potentially relevant area of Community competence. 4. In the Commission's opinion, powers should be distributed between the first and third pillar as follows: the provisions of criminal law required for the effective implementation of Community law come under the first pillar, while horizontal criminal law provisions (police and judicial cooperation, measures on the harmonisation of criminal law in connection with the area of freedom, security and justice) belong to the third pillar. 5. This being so, the Commission undertook to make the necessary changes to any legislative proposals still pending. III. The proposal of 26 April 2006 1. Following discussion of this issue, and in particular the relevant judgment of the Court of Justice, the Commission decided it should amend the proposal for a directive and withdraw the proposal for a framework decision of 12 July 20053. 2. Consequently, on 26 April 2006 the Commission forwarded a new proposal for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights which incorporates, updates and amalgamates the provisions of the two previous initiatives. 3. In particular, the proposals relating to the level of penalties and the broad powers of confiscation previously contained in the proposal for a framework decision were now incorporated in the new proposal for a directive (see, in particular, Articles 5 to 8). This appears to be one of the first cases where the Commission has applied its new approach to criminal law. 4. Briefly summarised, Article 1 sets out the subject-matter and scope of the directive; Article 2 defines the concept of a legal person for the purposes of the directive; Article 3 obliges Member States to treat specified types of behaviour as criminal offences; Articles 4 and 5 specify the nature and the level of criminal penalties respectively; Article 6 deals with powers of confiscation; Article 7 provides for joint investigation teams to combat counterfeiting; Article 8 obliges Member States to ensure that investigations and prosecution of the offences defined in the directive do not need to be instigated by the persons whose rights are infringed; finally, Articles 9 and 10 deal with transposal and entry into force respectively. 5. If we compare the new proposal with the two previous ones, it is clear that the only provisions that have not been incorporated in the new proposal are those relating to jurisdiction and the coordination of proceedings. 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. The Commission does not consider it essential to lay down specific arrangements for the protection of intellectual property. VI. Problem issues and the rapporteur's position 1. Looking to the first pillar for the basis of proposals relating to criminal matters is perfectly consistent with the Commission's broad interpretation of the implications of the judgment of the Court of Justice of 13 September 2005. It follows that, if this broad interpretation is accepted, the Commission's approach is unexceptionable. However, there are still certain problematic points which the amended Commission proposal does not seem to have succeeded in resolving. 2. This applies, in particular, to the scope of the directive. The explanatory memorandum states that the proposal for a directive applies to any infringement of intellectual property rights provided for by Community law and/or by the national law of the Member State concerned, as does Directive 2004/48/EC on the enforcement of intellectual property rights. 3. The statement by the Commission (2005/292/EC) concerning Article 2 of Directive 2004/48/EC lists the property rights concerned in order to establish more precisely the exact scope of the directive. The list includes 'patent rights, including rights derived from supplementary protection certificates'. 4. However, applying criminal penalties laid down at Community level to infringements of patent rights does not seem to be either particularly appropriate in itself, or consistent with the approach followed in recent years by the Community legislator. 5. There is no evidence of any urgent need to intervene by imposing criminal penalties, since many Member States already enforce patent protection by means of criminal penalties (i.e. fines and custodial sentences). This applies, for example, to the German2, Austrian3, Danish4, Spanish1, French2, Hungarian3, Italian4, Dutch5 and Portuguese6 legislation. Consequently, though attention should be drawn to the absence of any protection in criminal law under other legal systems (for example under English, Belgian and Greek law), the introduction of provisions of this kind at Community level would duplicate existing provisions and make the system even more cumbersome, unless we suppose that, either through the insertion (by means of an appropriate amendment) of an explicit provision to that end in the directive or as a result of the 'automatic primacy' of Community law7, Community legislation on the subject could completely replace the corresponding national legislation. 6. Secondly, seeking to apply criminal penalties in the area of patent law seems to be plainly in breach of the position taken by the European Parliament when, at its plenary sitting of 6 July 2005, it rejected the Commission proposal for a directive on the patentability of computer-implemented inventions (2002/0047(COD)). Given that an overwhelming majority of the European Parliament8 considered at that time that it was inappropriate to adopt legislation on the subject, any attempt now to provide for criminal penalties to protect patents (which are not currently regulated) would be a limited and dangerous foray into a very complex area which, for that very reason, requires a regulatory framework that it as systematic and widely endorsed as possible. 7. In the light of the foregoing, the rapporteur proposes amendments to Articles 1 and 2 of the proposal for a directive in order to demarcate its scope and provide the relevant definitions. In practical terms, the effect is to exclude from the scope of the directive the subject of patents by establishing that, pending the adoption of more comprehensive rules on patents at Community level in future (in the form of a suitable directive), the provisions of the present proposal should not apply to patents. This would avoid prejudging the content (including the criminal aspects) of any future legislation on patents. Moreover, it would restrict the scope of the directive to those intellectual property rights provided for by Community legislation. 8. Finally, for reasons of internal consistency, the rapporteur proposes minor amendments to recital 5 and the text of Article 2, and clearer and more rational wording for Articles 5, 6 and 7. VI. Future developments 1. The rapporteur hopes that, when drawing up future strategies to combat piracy and counterfeiting, and as we embark on an era of greater harmonisation in this field, the Community legislator will consider the possibility of finding ways and means of also punishing those who acquire goods whose provenance is unlawful. OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY Draftsman: SHORT JUSTIFICATION Following a recent judgement of the European Court of Justice in case C-176/03, the Commission is proposing a directive on criminal measures and intellectual property rights (IPRs) under Article 95 of the Treaty. Without prejudice to the competence of the Committee on Legal Affaires it is worth noting that there are serious concerns about the European Commission's broad interpretation of the judgement as set out in Communication COM(2005)583; and, as a consequence, about the legal base of the proposal. Concerning the issues under the competence of the Committee on Industry, Research and Energy, the main elements to be considered are the following: (a) scope of the directive; (b) definition of "commercial scale"; (c) definition of "intentional infringement of an IPR"; (d) criminalization of abetting and inciting; (e) joint investigation teams; (f) fundamental rights. Scope The scope of this piece of legislation is to tackle counterfeit and piracy, particularly in the music, luxury goods, clothing industries and related sectors. However, there are serious concerns regarding the possible effects of this Directive when measures to combat counterfeiting and piracy are simply generalised as applicable to all forms of IPRs. It needs to be stressed that infringements of certain IPRs varies in nature and manner of infringement, which means that measures to combat infringements of those IPRs should differ. There is a distinction between patent infringements in the normal course of commercial activity, such as the legitimate development of products, and counterfeiting and piracy with fraudulent and deliberate intent. There are civil remedies for patent infringements and alleged patent infringers should not be equated with criminals like pirates and counterfeiters. A company may need to infringe a patent intentionally in order to demonstrate that the patent at issue is not valid, and this contributes to innovation. In this context, the infringement should remain a civil matter as is currently the case, unless the infringement constitutes a serious threat to public health or safety. Commercial scale The reference to commercial scale was introduced but not defined by the TRIPS Agreement. However, the language of the TRIPS Agreement, the use of that phrase throughout the whole Agreement, and the context helps to interpret the concept. It refers to for-profit infringement only which causes significant direct loss to the holder of an IPR; non-profit exchange of legally acquired content between individuals must be excluded from the application of the directive. As the legislative proposal intends to penalize infringement on commercial scale only, it is essential to have a clear definition of that in order to avoid legal uncertainty. We can not rely on Member States' practice on that field as it varies from one Member State to another. Intentional infringement of IPRs Only the knowing acts of infringements that are intentional could be sanctioned with criminal measures: it covers only those cases when the perpetrator is aware that he is infringing IPRs, and he is doing it intentionally with malice aforethought. Distinction must be made as an infringement should not be considered intentional simply because it is part of an intentional activity such as listening to music or watching films. Abetting and inciting It is important to distinguish between patent infringements in the normal course of commercial activity (legitimate development of products) and counterfeiting and piracy with fraudulent and deliberate intent, which are often carried out by criminal organizations. Criminal sanctions for abetting and inciting any criminal act must be saved for the most serious crimes; to penalize abetting and inciting is disproportionate in case of infringement of intellectual property rights. The Charter of Fundamental Rights must be fully respected, in particular paragraph 3 of Article 49, which states that 'the severity of penalties must not be disproportionate to the criminal offence'. Joint investigation teams Article 7 of the proposal authorizes the experts and representatives of the holder of the IPRs to assist the investigation. Though it is the holder of the IPRs indeed who could identify his goods and products without doubts, care must be paid in this regard. First, as it is for the holder of IPRs to authorize or forbid the use of his intellectual product, and also because of the protection of the holder of the IPR, only duly authorized and mandated representatives could assist the investigation team. Secondly, assistance given by either the holder of IPRs or its representative must be limited in order to avoid 'privatizing' the criminal procedure; more extensive or more active involvement of the holders of the IPRs would pose a risk to the fair and impartial investigation and criminal procedure. Fundamental rights The Charter of Fundamental Rights must be fully respected when defining criminal acts and sanctions, as well as in the course of the investigation and the judicial procedure. Particular attention must be paid to the following articles of the Charter: Article 8 on data protection; Article 47 on fair trial; and Article 49 on legality and proportionality of criminal offences and penalties. AMENDMENTS The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:
Recital 9
Justification Criminal investigation authorities should not be able to act on their own initiative prior to a complaint by the right-holder, because licensing arrangements are not published. The right-holder has the fundamental right to dispose of his rights as he desires. Recital 9 a (new)
Article 1, paragraph 1
Justification This amendment restores the language used by the TRIPS agreement (Art. 61), upon which this proposal is based. Article 1, paragraph 2
Justification This amendment restores the language used by the TRIPS agreement (Art. 61), upon which this proposal is based. Article 1, paragraph 2 a (new)
Justification There is a distinction between patent infringements in the normal course of commercial activity, such as the legitimate development of products, and counterfeiting and piracy with fraudulent and deliberate intent. There are civil remedies for patent infringements and alleged patent infringers should not be equated with criminals like pirates and counterfeiters. In cases of patent infringements this would interfere with the civil law systems of the Member States. Article 1, paragraph 2 b (new)
Justification The proposal intends to penalize infringement on commercial scale only (Art. 3). Article 2, title
Justification It is desirable for the concept of counterfeiting, which is crucial for the application of this proposal for a directive, to be defined. Penalties can be applied only if there is a clear definition of the concept of counterfeiting, which has to cover all types of infringement of intellectual property rights, including holding counterfeit goods. Article 2, paragraph 1 a (new)
Justification Though the proposal intends to penalize infringement on commercial scale only (Art. 3), this notion is not defined; clear definition must be established to avoid legal uncertainty. Though the TRIPS Agreement does not define what is meant by 'commercial scale', the context of the TRIPS, the use of that expression throughout the whole text, and the analysis of the negotiation process of the TRIPS make the definition clear. Article 2, paragraph 1 b (new)
Article 2, paragraph 1 c (new)
Justification It is desirable for the concept of counterfeiting, which is crucial for the application of this proposal for a directive, to be defined. Penalties can be applied only if there is a clear definition of the concept of counterfeiting, which has to cover all types of infringement of intellectual property rights, including holding counterfeit goods.. Article 3
Justification Criminal sanctions for abetting and inciting any criminal act must be reserved for the most serious crimes; to penalize abetting and inciting could be disproportionate in case of infringement of intellectual property rights. Article 3, paragraph 1 a (new)
Justification It is important to distinguish between patent infringements in the normal course of commercial activity (legitimate development of products) that can lead to invalid breaking of patents and counterfeiting and piracy with fraudulent and deliberate intent, which are often carried out by criminal organizations. Criminal sanctions for abetting and inciting any criminal act must be reserved for the most serious crimes; to penalize abetting and inciting could be disproportionate in case of infringement of intellectual property rights. Article 3, paragraph 1 b (new)
Article 4, paragraph 2, introductory sentence
Justification This involves significant infringements of fundamental rights, which should therefore be justified on the grounds of general interest. Article 4, paragraph 2, point (a)
Justification On safety grounds, it is proposed that all the goods infringing an intellectual property right be speedily destroyed, except for items needed for the purpose of the investigation. This measure also avoids the need for costly arrangements for guarding the goods. A visual record of the stock can be made by photographing it when it is discovered. If appropriate, the destruction of the stock may be subject to the consent, or non-opposition, of the alleged perpetrator, if s/he is identified at that stage, without this constituting an admission of guilt. Article 4, paragraph 2, point (f a) (new)
Justification As an additional penalty, it must be possible for the counterfeiter to be required to pay the costs of guarding the goods retained for the purposes of the investigation, especially since such costs can be substantial if the products retained, even in limited numbers, are bulky and the investigation is lengthy. Article 5, paragraph 2, points (a) and (b)
Justification The establishment of fixed fines applicable to intellectual property rights infringements laid down in this article is too inflexible and probably difficult to reconcile with the principle of subsidiarity. The amendment seeks to bring the principle into line with the objective of harmonisation pursued by the proposal. Article 6
Justification It is a concern that Article 6 is restricted to offences only committed in the context of 'organised crime'. This article will only be useful if it applies to all offences causing serious commercial harm to rights-holders, irrespective of whether these infringements were committed in the context of organised crime. Article 6 of the proposal for a framework decision should therefore delete the reference to 'organised crime' and replace it by the term 'serious crimes'. Article 7
Justification The wording of this article is too vague: it is legitimate that the Court allows each of the parties to have their experts. However, direct involvement of the representatives of the holder of the IPRs into the investigation must be limited; otherwise right-holders could jeopardize the criminal procedures by endangering the impartial and fair investigation. The text proposed by the Commission is disproportionate; as this should be left to the Courts to interpret. Article 7, paragraph 1 a (new)
Justification Article 8 of the Charter declares that 'Everyone has the right to the protection of personal data concerning him or her', and 'Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.' The Directive aims to protect the rights and freedoms of persons with respect to the processing of personal data by laying down guidelines determining when this processing is lawful. Article 8
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