The Hague, 3 July 2006. Both Chambers of the Dutch Parliament (Staten-Generaal) unanimously concluded last Thursday that the European Commission has no competence to propose a directive to criminalise intellectual property infringements. The Parliament submits that the Commission does not present any evidence that the directive is even needed at all, and that it interprets a recent European Court of Justice judgment overly broadly.
The Commission can only propose a directive concerning criminal measures with the European Parliament as co-legislator in this case if the measures are essential for the realization of the single market. The Dutch Parliament dryly remarks that the Commission not even attempts to argue that a distortion in trade between member states would occur without this law, and concludes that therefore “any and all factual support” for the directive is missing.
The Parliament notes that the directive would only harmonise some penalties, but that there is no indication that criminals would choose the jurisdiction with the lowest penalties to operate from. Indeed, it is known that the chance to be caught plays a much bigger role, but the Commission has no say over the generally low prosecution priorities for IP infringements. The Dutch Parliament thinks that more exchange of information among member states would be much more effective than these disproportionate punishment.
Only recently, the Commission gained any competence at all to propose criminal measures without member states having a veto, due to the European Court of Justice judgment (C-176/03). With this directive, it seems the Commission is trying to expand the boundaries of its competence further by ignoring the edge conditions of said verdict.
FFII analyst Ante Wessels says: “The European Commission and the member states are now in the process of circumscribing competence: How far can the Commission go? In this power struggle the Dutch Parliament made its statement: the Commission went much too far. Earlier Dutch minister of Justice Donner had already stated he was not ‘pleased’.”
Jonas Maebe, FFII board member, concludes: “The stated aim of the directive is to combat counterfeiting and piracy, but the directive goes much further. Even companies which merely use properly licensed software can be criminalised, since such use is intentional, commercial and can infringe on software patents. We hope that the Dutch Parliament’s strong condemnation will wake up people and parliaments all over Europe.”
Full name of the directive
Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights, 2005/0127 (COD)
English translation (FFII) of the conclusion of the adopted text
Both Chambers of the Dutch Parliament (Staten-Generaal) conclude that no competence has been granted to the Community for the intended action’s desired aim. Both Chambers have nonetheless – unnecessarily – submitted the directive in question to the principles of subsidiarity and proportionality and concluded that the proposal fails to meet these tests.”
Original Dutch conclusion (nr KST98457)
Beide Kamers der Staten-Generaal concluderen dat voor de na te streven doelstelling van het voorgenomen optreden geen bevoegdheid aan de Gemeenschap is toegekend. Niettemin hebben beide Kamers onderhavig voorstel – ten overvloede – onderworpen aan de beginselen van subsidiariteit en proportionaliteit en geconcludeerd dat het voorstel daaraan niet voldoet.”
- The advice adopted by Dutch Parliament:
FFII Board Member
jmaebe at ffii.org
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ante at ffii.org
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bhenrion at ffii.org
About the FFII
The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.