Justification
This amendment, while clarifying the conditions for initiating criminal investigations or proceedings, retains the flexibility of the proposed provision. It is very important, especially when public health may be at risk, and where the right-holder cannot be determined, to be able to initiate such steps without a report made by the person subjected to the offence.
ПРОЦЕДУРА
Позовавания
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COM(2006)0168 - COM(2005)0276 - C6-0233/2005 - 2005/0127(COD)
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Дата на представяне на ЕП
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26.4.2006
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Водеща комисия
Дата на обявяване в заседание
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JURI
6.9.2005
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Комисия(и), сезирана(и) за становище
Дата на обявяване в заседание
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ITRE
6.9.2005
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IMCO
6.9.2005
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LIBE
6.9.2005
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Неизказано становище
Дата на решението
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IMCO
21.11.2005
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Докладчик(ци)
Дата на назначаване
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Nicola Zingaretti
15.9.2005
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Разглеждане в комисия
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28.11.2005
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12.9.2006
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20.11.2006
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27.2.2007
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20.3.2007
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|
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Дата на приемане
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20.3.2007
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Резултат от окончателното гласуване
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+:
–:
0:
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22
3
3
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Депутати, присъстващи на окончателното гласуване
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Carlo Casini, Marek Aleksander Czarnecki, Cristian Dumitrescu, Monica Frassoni, Giuseppe Gargani, Klaus-Heiner Lehne, Katalin Lévai, Antonio López-Istúriz White, Antonio Masip Hidalgo, Hans-Peter Mayer, Manuel Medina Ortega, Aloyzas Sakalas, Francesco Enrico Speroni, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka
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Заместник(ци), присъстващ(и) на окончателното гласуване
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Mogens N.J. Camre, Janelly Fourtou, Jean-Paul Gauzès, Eva Lichtenberger, Arlene McCarthy, Michel Rocard, Gabriele Stauner, József Szájer, Jacques Toubon, Nicola Zingaretti
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Заместник(ци) (чл. 178, пар. 2), присъстващ(и) на окончателното гласуване
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Toine Manders, Umberto Guidoni
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Дата на внасяне
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23.3.2007
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{12/12/2006}12.12.2006
OPINION OF THE COMMITTEE ON CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS
for the {JURI}Committee on Legal Affairs
on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights
(COM(2006)0168 – C6 0233/2005 – 2005/0127(COD))
Draftsman: Rainer Wieland
SHORT JUSTIFICATION
Following the European Court of Justice's judgement of 13 September 2005 (Case C 176/03 Commission v Council), the European Commission amended its proposal for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights.
The issue of the protection of intellectual property is of particular importance for European companies, which need to make sure that their investments are going to be profitable. Without such a protection of intellectual property, investments and consequently innovation may slow down in Europe.
Some common grounds need to be defined at the European level so as to fight more effectively against counterfeiting and piracy: this proposal therefore establishes common definitions and common levels of penalties. This proposal also intends to facilitate criminal investigations related to infringements of intellectual property rights.
The draftsman supports the proposed directive but draws attention to the need to precisely define important terms in the directive, especially when they are a central component of the definition of the offence.
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AMENDMENTS
The Committee on Civil Liberties, Justice and Home Affairs calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:
Text proposed by the Commission1
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Amendments by Parliament
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Amendment 1
Recital 8
(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.
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deleted
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Justification
What may appear as the privatisation of criminal prosecution in favour of individual stakeholders’ interests implied therein should be rejected for reasons of general legal policy. In democratic societies bound by the rule of law, the state is endowed with a legal monopoly over the use of force. Private parties are not entitled to avail themselves of criminal prosecution measures in order to combat violations of the law committed by fellow citizens.
Amendment 2
Recital 9 a (new)
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(9a) The rights set out in the Charter of Fundamental Rights of the European Union should be fully respected when defining criminal acts and penalties, during investigations and in the course of judicial proceedings.
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Amendment 3
Article 1, paragraph 2
These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States.
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At least the following intellectual property rights are covered by the scope of the Directive:
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a) copyright;
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b) rights related to copyright;
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c) sui generis right of a database maker;
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d) rights of the creator of the topographies of a semiconductor product;
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e) trademark rights;
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f) design rights;
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g) utility model rights;
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Justification
The material scope of the directive must be defined more precisely, in order to achieve the objective of better, more transparent and more readily comprehensible legislation.
It cannot be the task of the Commission to bypass - through the publication of opinions - the legislature in defining the way in which directives are to be interpreted, with such far reaching implications.
The list based on Article 2 of Directive 2004/48/EC will, moreover, make it easier for the committee responsible to exclude specific areas of law from the scope of the provisions, if it considers this to be necessary, through separate votes.
Amendment 4
Article 1, paragraph 2 a (new)
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In particular, this Directive does not apply to any infringement of an intellectual property right related to:
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patents, utility models and supplementary protection certificates;
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parallel importation of original goods which have been marketed with the agreement of the right-holder in a third country.
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Justification
The scope of this Directive needs to be limited.
Amendment 5
Article 2, paragraph 1 a (new)
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“On a commercial scale” means acts carried out with the intention to earn a direct economic or commercial profit, or acts carried out on such a large scale that may cause a significant direct loss for the holder of that right.
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Justification
The term 'commercial scale' is central to the definition of the offence, and needs to be precisely defined. It must include not only acts that have an economic or commercial intention, but also serious acts of piracy on a large scale, that is, for more than individual or personal use, which may have no economic advantage for the offender but which may cause very substantial harm to the right-holder.
Amendment 6
Article 3, paragraph 1 a (new)
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Member States shall ensure the treatment as criminal offences, when committed on a commercial scale, of all intentional trade mark infringements consisting of the use of a sign which is identical to the trade mark in relation to goods or services which are identical to those for which the trade mark is registered.
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Justification
It is convenient to define separately copyright and trademark infringements
Amendment 7
Article 4, paragraph 2
2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases:
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2. For the offences referred to in Article 3, the Member States shall also provide, in appropriate cases, for the necessary measures to ensure that a natural or legal person held liable is punishable by effective, proportionate and dissuasive penalties, such as:
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(a) destruction of the goods infringing an intellectual property right;
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(a) exclusion from entitlement to public benefits or aid;
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(b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence;
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(b) temporary or permanent disqualification from the practice of commercial activities;
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(c) a permanent or temporary ban on engaging in commercial activities;
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(c) placing under judicial supervision;
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(d) placing under judicial supervision;
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(d) a judicial winding-up order;
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(e) judicial winding-up;
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(e) temporary or permanent closure of establishments which have been used for committing the offence;
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(f) a ban on access to public assistance or subsidies;
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(f) publication of judicial decisions;
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(g) publication of judicial decisions.
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(g) destruction of the goods infringing an intellectual property right.
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Justification
See justification relating to first amendment. Furthermore, the substance and wording of the relevant list of penalties should not be 'reinvented' in the case of every legislative text. The penalties proposed under (a) to (e) have therefore been taken from the Council's proposed text for a Council framework decision on the fight against organised crime, 8496/1/06 (2005/003(CNS)), and supplemented by specific proposals in the original text relating to the current matter.
Amendment 8
Article 4, paragraph 2, point (a)
(a) destruction of the goods infringing an intellectual property right;
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(a) destruction of the goods infringing an intellectual property right and, in appropriate cases, seizure or destruction of the materials or elements principally used for the creation or manufacture of those goods;
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Justification
Clarification.
Amendment 9
Article 6
The 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.
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In the cases provided for in Article 5 of this Directive, the 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.
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Justification
These extended confiscation powers should refer to the same infringements and offences to which the directive applies.
Amendment 10
Article 6 a (new)
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Article 6a
Misuse of powers
Member States shall ensure that through criminal, civil and procedural measures, the misuse of threats of criminal sanctions can be prohibited and subject to penalties.
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Member States shall prohibit procedural misuse, especially as criminal measures are employed for the enforcement of the requirements of civil law.
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Justification
The potential for a right-holder to deter potential infringers (i.e., competitors) increases considerably if he can threaten them with criminal penalties. Both international and European law require the prevention of misuse of IP rights. Misuse disrupts free competition, in contravention of Art. 28 et seq. and 81 et seq. EC.
Amendment 11
Article 6 b (new)
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Article 6b
Defendants' rights
Member States shall ensure that the rights of defendants shall be duly protected and guaranteed.
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Amendment 12
Article 7
Article 7
Joint investigation teams
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 into the offences referred to in Article 3.
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deleted
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Justification
What may appear as the privatisation of criminal prosecution in favour of individual stakeholders’ interests implied therein should be rejected for reasons of general legal policy. In democratic societies bound by the rule of law, the state is endowed with a legal monopoly over the use of force. Private parties are not entitled to avail themselves of criminal prosecution measures in order to combat violations of the law committed by fellow citizens.
Amendment 13
Article 8 a (new)
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Article 8a
Protection of personal data
Article 8 of the Charter of Fundamental Rights of the European Union, which concerns the protection of personal data, and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1 shall be fully respected in the course of investigations and judicial proceedings.
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1 OJ L 281, 23.11.1995, p. 31.
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