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EU needs criminal sanctions to fight piracy and counterfeiting

In cases of serious crimes committed by a criminal organization, the maximum penalty must be at least €300 000 and/or four years’ imprisonment.

The first EU directive aiming at harmonizing national criminal law was backed by the Legal Affairs’ committee, when it adopted on Tuesday a first-reading report on a legislation imposing criminal sanctions for the infringement of intellectual property rights. Nicola Zingaretti (Italy), Parliament’s rapporteur, said: „We are turning a new page: this is the first directive where criminal law is included. To harmonize criminal codes will be a radical new thing”.

If approved by Parliament and the Council, the proposed directive would oblige all Member States to consider as a criminal offence all intentional infringements of an intellectual property right carried out on a commercial scale. The text proposes, as a deterrent, measures ranging from fines to imprisonment, according to the gravity of the crime. Members of the Legal Affairs’ committee backed the overall aim of the Commission proposal, while amending some of its provisions. They excluded patent rights from the scope of the Directive, and decided that criminal sanctions should only apply to those infringements deliberately carried out to obtain a commercial advantage.

Piracy committed by private users for personal, non-profit purposes are therefore also excluded. The report aims to ensure that national judicial authorities will always be able to impose sufficiently serious penalties by setting out minimum levels for the upper limits on punishments imposed by national law. In cases of serious crimes committed by a criminal organization, the maximum penalty must be at least €300 000 and/or four years’ imprisonment. The same applies where the offences carry a health or safety risk. For less serious infringements, the maximum penalties should include criminal and civil fines of at least €100 000. In some cases, remedies can include the seizure and destruction of counterfeited goods.

A series of provisions on investigations was also approved. Member States are asked to ensure that the possibility of initiating investigations is not dependent on a formal accusation, at least when acts were committed in the territory of the Member State. Moreover, EU countries, if the directive is adopted, would have to allow holders of violated intellectual property rights to assist investigations undertaken by joint investigation teams. The proposed directive reflects the Commission’s interpretation of the European Court of Justice’s judgment of 13 September 2005.

According to the Commission, this ruling allows for measures under the Community method to insist on criminal sanctions, when these are required for the effective implementation of Community law. This view is contested by those who believe criminal law cannot be a competence of the Community - but amendments rejecting the entire proposal on this basis were defeated in the vote. (EP Press)