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El
general counsel, Pedro Cruz Villalón, has presented his conclusions regarding
the two preliminary questions raised by the Supreme Court of Estonia
to the European Court of Justice (CJEU) on the interpretation of article 13.1
of the Regulation (EC) No. 1383 / 2003 relating to customs intervention of goods
suspected of violating intellectual property rights. Specifically, the points to be resolved are those relating to the
consideration or not of “competent authority to determine if there has been a violation
an intellectual property right” to the customs authorities and the role of these to initiate or not the
procedure to determine said violation.
Although the interpretation of article 13.1 of Regulation No.
1383/2003 will be born and possibly will die soon, since from the 1st of
January 2014 has been repealed by the Regulation (EU) No. 608/2013 containing
the new regulation of intervention of counterfeit merchandise, it could
further specify the role of the national customs authorities themselves.
1383/2003 will be born and possibly will die soon, since from the 1st of
January 2014 has been repealed by the Regulation (EU) No. 608/2013 containing
the new regulation of intervention of counterfeit merchandise, it could
further specify the role of the national customs authorities themselves.
The events date back to 2010 with the retention in the
Estonian customs of 63.700 bottles that allegedly violate a model
industrial that is registered in favor of the Acerra company and that were
imported by the Sintax company.
Estonian customs of 63.700 bottles that allegedly violate a model
industrial that is registered in favor of the Acerra company and that were
imported by the Sintax company.
Syntax
He requested the release of the merchandise from Customs up to two times, which
was denied and he filed a lawsuit against Acerra before the Ordinary Court
of 1st Instance to challenge the validity of the industrial model. Said court
confirmed the registration subsequently and, therefore, the model is in force.
He requested the release of the merchandise from Customs up to two times, which
was denied and he filed a lawsuit against Acerra before the Ordinary Court
of 1st Instance to challenge the validity of the industrial model. Said court
confirmed the registration subsequently and, therefore, the model is in force.
Syntax
In view of the denial of release by Customs, he filed a
claim before a Contentious-Administrative Court. Said court gave the
Sintax was right, but Customs continued with its position of not granting release
and appealed to a higher court.
In view of the denial of release by Customs, he filed a
claim before a Contentious-Administrative Court. Said court gave the
Sintax was right, but Customs continued with its position of not granting release
and appealed to a higher court.
El
The customs appeal was also rejected and caused them to file a resource
cassation before the Supreme Court of Estonia (sender of the
preliminary questions) on the basis that customs has the capacity to decide
on the violation of intellectual property rights.
The customs appeal was also rejected and caused them to file a resource
cassation before the Supreme Court of Estonia (sender of the
preliminary questions) on the basis that customs has the capacity to decide
on the violation of intellectual property rights.
The Supreme Court in its first question
asks if it can also be processed before the customs administration
the procedure intended to determine whether a right of protection has been violated
intellectual property, mentioned in article 13.1 of Regulation No.
1383/2003, or the competent authority to rule on the substance,
mentioned in Chapter III of the Regulation, must be different from the
customs authorities.
asks if it can also be processed before the customs administration
the procedure intended to determine whether a right of protection has been violated
intellectual property, mentioned in article 13.1 of Regulation No.
1383/2003, or the competent authority to rule on the substance,
mentioned in Chapter III of the Regulation, must be different from the
customs authorities.
The Advocate General's conclusion is that Article
13.1 of the Regulations does not exclude that the States members fhide to
customs authorities to process the procedure provided in the
referred provision, provided that said power is expressly provided for in
national regulations, customs authorities act in such a way that they are
their independence and impartiality are guaranteed, the right to be heard is observed
and there is the possibility of exercising judicial control.
13.1 of the Regulations does not exclude that the States members fhide to
customs authorities to process the procedure provided in the
referred provision, provided that said power is expressly provided for in
national regulations, customs authorities act in such a way that they are
their independence and impartiality are guaranteed, the right to be heard is observed
and there is the possibility of exercising judicial control.
According to the second question,
Estonian Supreme Court questions whether customs authority must have
the possibility of initiating the corresponding procedure foreseen in the
article 13.1 of the Regulations.
Estonian Supreme Court questions whether customs authority must have
the possibility of initiating the corresponding procedure foreseen in the
article 13.1 of the Regulations.
The Advocate General's conclusion is that el
Regulation does not exclude that Member States establish the possibility of
that the customs authorities themselves formally initiate the procedure
mentioned in said provision, since although the Regulation makes an effort
so as not to hinder freedom of trade, at the same time, prevent
marketing of goods that violate property rights
intellectual.
Regulation does not exclude that Member States establish the possibility of
that the customs authorities themselves formally initiate the procedure
mentioned in said provision, since although the Regulation makes an effort
so as not to hinder freedom of trade, at the same time, prevent
marketing of goods that violate property rights
intellectual.
For this reason, the Advocate General continues to say that the
abstention of the holder of the right to initiate the procedure within the deadline
can only be replaced by the initiation by the authorities
customs authorities of a procedure that prevents the release of goods in
those cases in which the customs authorities adopt a formal decision
to initiate the procedure.
abstention of the holder of the right to initiate the procedure within the deadline
can only be replaced by the initiation by the authorities
customs authorities of a procedure that prevents the release of goods in
those cases in which the customs authorities adopt a formal decision
to initiate the procedure.
Si
Member States grant, in their respective national laws, the
necessary powers to the customs authorities so that they can determine whether or not there has been a violation
an intellectual property right, They will be given a power that even
Now, at least in Spanish law, it corresponded exclusively to the
Courts. This power will entail, without
doubt, also a great responsibility
(if you allow me to paraphrase Spiderman's uncle) in order to guarantee the
independence and impartiality of their actions.
Member States grant, in their respective national laws, the
necessary powers to the customs authorities so that they can determine whether or not there has been a violation
an intellectual property right, They will be given a power that even
Now, at least in Spanish law, it corresponded exclusively to the
Courts. This power will entail, without
doubt, also a great responsibility
(if you allow me to paraphrase Spiderman's uncle) in order to guarantee the
independence and impartiality of their actions.
Author Transi Ruiz
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