Geography Reference
In-Depth Information
B. AVAILABILITY OF CRIMINAL OFFENCES UNDER EUROPEAN LAW
The criminalisation of IPR wrongs was attempted in the controversial EU
Draft Directive on criminal measures aimed at ensuring the enforcement of
intellectual property rights (IPRs).
7
The controversy resulted from the consti-
tutional objections which EU Member States had to the European Parliament
legislating on criminal law matters. This was an area of competency which they
regarded as within the exclusive competence of national parliaments. However,
the European Court of Justice of the European Communities (ECJ) in
Com-
mission and European Parliament v Council
, Case C-176/03 of 13 September
2005, had indicated that the Community could adopt criminal measures in
relation to environmental policy where these were 'essential' for combating
serious environmental offences and where the Community legislature considers
such measures to be necessary to ensure that the Community rules on environ-
mental protection were fully effective. Article 1 of the Draft Directive on
criminal law enforcement had described the Directive as laying down the
criminal measures which were 'necessary' to ensure the enforcement of IPRs
and provided that the measures were to apply to IPRs under both Community
and national law. However, various Member States argued that the judgment of
the ECJ in Case C-176/03 should be interpreted restrictively and that any
obligations created must be limited to Community law and not general criminal
law.
7.04
1. Knowledge
Article 61 permits the institution of criminal penalties in the case of wilful
infringement. As a matter of practice it is not uncommon in intellectual
property disputes for a complainant to send a cease and desist notice to an
alleged infringer to put them on notice that they may be infringing the
complainant's IPRs. This may, however, be unrealistic in cases of large-scale
copyright piracy and trade mark counterfeiting, particularly where the perpet-
rators may be involved in organised crime. Although it is usual for intellectual
property statutes to insist upon wilfulness before criminal sanctions can be
invoked, in analogous areas of the law, 'involving economic or social regulation',
legislatures have imposed strict liability and have not required proof of
mens rea
.
7.05
2. Quantification of penalties
The degree of wilfulness or deliberation in the infringing conduct will have a
bearing on the size of any pecuniary penalties which are imposed. Also relevant
7.06
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8866/06 COM(06) 168.
