Keywords
Summary

Keywords

1. Common commercial policy - Measures designed to prevent the marketing of counterfeit and pirated goods - Regulation No 3295/94 - Scope - Goods in external transit - Whether included

(Council Regulations No 2913/92, Art. 84(1)(a), and No 3295/94, Art. 1)

2. Common commercial policy - Measures designed to prevent the marketing of counterfeit and pirated goods - Regulation No 3295/94 - Community competence

(EC Treaty, Art. 113 (now, after amendment, Art. 133 EC; Council Regulation No 3295/94)

Summary

1. Article 1 of Regulation No 3295/94 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods must be interpreted as being applicable where goods of the type specified in that regulation, imported from a non-member country, are, in the course of their transit to another non-member country, temporarily detained in a Member State by the customs authorities of that State on the basis of that regulation and at the request of the company which holds rights in respect of those goods which it claims have been infringed and whose registered office is in a non-member country.

According to Article 1(1)(a) of that regulation, the latter applies where counterfeit or pirated goods are found when checks are made on goods placed under a suspensive procedure within the meaning of Article 84(1)(a) of Regulation No 2913/92 establishing the Community Customs Code. Under this latter provision, the term suspensive procedure designates, inter alia, external transit, that is to say, a customs procedure allowing the movement of non-Community goods from one point to another within the customs territory of the Community without those goods being subject to import duties or other charges under the Community Customs Code. The regulation is thus expressly designed to apply to goods passing through Community territory from a non-member country destined for another non-member country. It does not matter in this regard whether the holder of the right or those entitled under him have their registered office in a Member State or outside the Community.

( see paras 26-28 and operative part 1 )

2. Since the Court has ruled that measures at border crossing points intended to enforce intellectual property rights could be adopted autonomously by the Community institutions on the basis of Article 113 of the EC Treaty (now, after amendment, Article 133 EC), the Community was empowered, under that article, to introduce common rules for stopping counterfeit goods under a suspensive customs procedure such as the external transit procedure. It was thus empowered to adopt Regulation No 3295/94 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods.

The external transit of non-Community goods, moreover, is not devoid of effect on the internal market. It is, in fact, based on a legal fiction. Goods placed under this procedure are subject neither to the corresponding import duties nor to the other measures of commercial policy; it is as if they had not entered Community territory. In reality, they are imported from a non-member country and pass through one or more Member States before being exported to another non-member country. This operation is all the more liable to have a direct effect on the internal market as there is a risk that counterfeit goods placed under the external transit procedure may be fraudulently brought on to the Community market.

( see paras 32-34 and operative part 2 )