Geography Reference
In-Depth Information
The substantive decision following the temporary detention of goods placed under a
suspensive customs procedure
+
Unlike the decision taken by the customs authority to detain the goods temporarily,
by means of the detention provided for in Article 6(1) of Regulation No 3295/94
and Article 9(1) of Regulation No 1383/2003, the substantive decision as referred
to in Article 6(2)(b) of Regulation No 3295/94 and the first paragraph of Article 10
of Regulation No 1383/2003 cannot be adopted on the basis of a suspicion but
must be based on an examination of whether there is proof of an infringement of
the right relied upon.
72
+
In the event that the judicial or other authority competent to take a substantive
decision finds an infringement of the intellectual property right relied upon, the
destruction or abandonment of the goods in question is the only customs-approved
treatment which they can receive.
73
Consequently, the authority competent to take
a substantive decision cannot classify as 'counterfeit goods' and 'pirated goods' or,
more generally, 'goods infringing an intellectual property right' goods which a
customs authority suspects of infringing an intellectual property right applicable in
the European Union but in respect of which, after substantive examination, it is not
proven that they are intended to be put on sale in the European Union.
74
+
With regard to the evidence which the authority competent to take a substantive
decision must have in order to find that goods which are imitations or copies and
have been brought into the customs territory of the EU without being released for
free circulation liable to infringe an intellectual property right applicable in the EU,
it must be stated that such evidence may include the existence of a sale of goods to a
customer in the EU, of an offer for sale or advertising addressed to consumers in the
EU, or of documents or correspondence concerning the goods in question showing
that diversion of those goods to EU consumers is envisaged.
75
+
Regulations No 3295/94 and No 1383/2003 deal only with combating the entry
into the European Union of goods which infringe intellectual property rights. In
the interest of correct management of the risks for the health and safety of
consumers, it must be stated that the powers and obligations of the Member States'
customs authorities as regards goods posing such risks must be assessed on the basis
of other provisions of European Union law, such as Articles 56, 58 and 75 of the
Customs Code.
76
7.96
Article 16.2 of the ACTA, which was negotiated by the EU with a number of
other countries (see Blakeney, 2012) provides that parties 'may' apply border
measures to goods in transit. 'In-transit goods' is defined in Art 5 to mean goods
under 'Customs transit' and under 'transhipment'. 'Customs transit' is defined
as 'the Customs procedure under which goods are transported under Customs
72
Ibid, at para 68.
73
Ibid, at para 69.
74
Ibid, at para 70.
75
Ibid, at para 71.
76
Ibid, at para 77.
