Criminal proceedings against X.

• Jurisdiction: European Union
• Celex Number: 62002CJ0060
• ECLI: ECLI:EU:C:2004:10
• Docket Number: C-60/02
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 07 January 2004

Case C-60/02


Criminal proceedings
against
X


(Reference for a preliminary ruling from the Landesgericht Eisenstadt (Austria))

«(Counterfeit and pirated goods – No criminal penalty for the transit of counterfeit goods – Compatibility with Regulation (EC) No 3295/94)»

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 5 June 2003

Judgment of the Court (Fifth Chamber), 7 January 2004

Summary of the Judgment

1..

Common commercial policy – Measures designed to prevent the marketing of counterfeit and pirated goods – Regulation No 3295/94 – Scope – Goods in external transit – Included

(Council Regulation No 3295/94, Arts. 2 and 11)

2..

Acts of the institutions – Regulations – Implementation by the Member States – Duty to interpret national law so as to be compatible with Community law – Limits – Principle of non-retroactivity of criminal offences and penalties

1.

Article 11 of Regulation No 3295/94 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights, as amended by Regulation No 241/1999, requires Member States to introduce penalties for infringements of the prohibition laid down in Article 2 of the regulation on the release for free circulation, export, re-export and placing under a suspensive procedure of counterfeit goods. Those provisions are applicable to situations in which goods in transit between two countries not belonging to the European Community are temporarily detained in a Member State by the customs authorities of that State. see paras 55, 64, operative part 1

2.

The duty to interpret national law so as to be compatible with Community law, in the light of its wording and purpose, in order to attain the aim pursued by the latter, cannot, of itself and independently of a law adopted by a Member State, have the effect of determining or aggravating the liability in criminal law of an entity which has failed to meet the requirements of a Community regulation. That obligation finds its limits in the general principles of law which form part of the Community legal system and, in particular, in the principles of legal certainty and non-retroactivity. In particular, the principle of non-retroactivity of penalties, enshrined in Article 7 of the European Convention for the Protection of Human Rights and constituting a general principle of Community law common to the constitutional traditions of the Member States, prohibits the imposition of criminal penalties for conduct which is not prohibited by a national rule, even if the national rule is contrary to Community law. see paras 61, 63-64, operative part 2

JUDGMENT OF THE COURT (Fifth Chamber)
7 January 2004 (1)

((Counterfeit and pirated goods – No criminal penalty for the transit of counterfeit goods – Compatibility with Regulation (EC) No 3295/94))

In Case C-60/02, REFERENCE to the Court under Article 234 EC by the Landesgericht Eisenstadt (Austria) for a preliminary ruling in the criminal proceedings before that court against X, on the interpretation of Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights (OJ 1994 L 341, p. 8), as amended by Council Regulation (EC) No 241/1999 of 25 January 1999 (OJ 1999 L 27, p. 1).

THE COURT (Fifth Chamber),,

composed of: D.A.O. Edward (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and P. Jann, Judges, Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,

after considering the written observations submitted on behalf of:

─

Montres Rolex SA, by G. Kucsko, Rechtsanwalt,

─

the Austrian Government, by C. Pesendofer, acting as Agent,

─

the Finnish Government, by E. Bygglin, acting as Agent,

─

the Commission of the European Communities, by J.C. Schieferer, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 5 June 2003,

gives the following

Judgment

1

By order of 17 January 2002, received at the Court on 25 February 2002, the Landesgericht (Regional Court) Eisenstadt referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights (OJ 1994 L 341, p. 8), as amended by Council Regulation (EC) No 241/1999 of 25 January 1999 (OJ 1999 L 27, p. 1) ( Regulation No 3295/94).

2

That question was raised in a number of judicial investigations conducted at the request of Montres Rolex SA ( Rolex), Tommy Hilfiger Licensing Inc., La Chemise Lacoste SA, Guccio Gucci SpA and The GAP Inc., all of whom are trade mark proprietors, following the confiscation by the Kittsee customs authorities (Austria) of shipments of goods presumed to be counterfeit copies of those companies' brands.

Legal background

Community law

3

In accordance with Article 1 of Regulation No 3295/94, that regulation lays down:

(a)

the conditions under which the customs authorities shall take action where goods suspected of being goods referred to in paragraph 2(a) are:

─

entered for free circulation, export or re-export, in accordance with Article 61 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code,

entered for free circulation, export or re-export, in accordance with Article 61 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code,

─

found in the course of checks on goods under customs supervision within the meaning of Article 37 of Council Regulation (EEC) No 2913/92, placed under a suspensive procedure within the meaning of Article 84(1)(a) of that regulation, re-exported subject to notification or placed in a free zone or free warehouse within the meaning of Article 166 thereof; and

found in the course of checks on goods under customs supervision within the meaning of Article 37 of Council Regulation (EEC) No 2913/92, placed under a suspensive procedure within the meaning of Article 84(1)(a) of that regulation, re-exported subject to notification or placed in a free zone or free warehouse within the meaning of Article 166 thereof; and

(b)

the measures which shall be taken by the competent authorities with regard to those goods where it has been established that they are indeed goods referred to in paragraph 2(a).

4

Article 1(2)(a) of Regulation No 3295/94 provides, inter alia, that goods infringing an intellectual property right means counterfeit goods.

5

That provision states that counterfeit goods include:

─

goods, including the packaging thereof, bearing without authorisation a trade mark which is identical to the trade mark validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such trade mark, and which thereby infringes the rights of the holder of the trade mark in question under Community law or the law of the Member State where the application for action by the customs authorities is made,

goods, including the packaging thereof, bearing without authorisation a trade mark which is identical to the trade mark validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such trade mark, and which thereby infringes the rights of the holder of the trade mark in question under Community law or the law of the Member State where the application for action by the customs authorities is made,

─

any trade mark symbol (logo, label, sticker, brochure, instructions for use, guarantee document) whether presented separately or not, in the same circumstances as the goods referred to in the first indent,

any trade mark symbol (logo, label, sticker, brochure, instructions for use, guarantee document) whether presented separately or not, in the same circumstances as the goods referred to in the first indent,

─

packaging materials bearing the trade marks of counterfeit goods, presented separately in the same circumstances as the goods referred to in the first indent

packaging materials bearing the trade marks of counterfeit goods, presented separately in the same circumstances as the goods referred to in the first indent .

6

Article 2 of Regulation No 3295/94 provides: The entry into the Community, release for free circulation, export, re-export, placing under a suspensive procedure or placing in a free zone or free warehouse of goods found to be goods referred to in Article 1(2)(a) on completion of the procedure provided for in Article 6 shall be prohibited.

7

Article 3 of that regulation provides, inter alia, that the holder of a trade mark may lodge an application in writing with the competent service of the customs...