Brussels, 7 February 2011 — A study commissioned by the European Commission advocates the abolition of the national prosecutor’s discretion whether to prosecute and how to charge the defendant. It also argues in favor of a European criminal court and for the criminalisation of patent infringements. The main question the EU study had to answer is whether EU criminal measures aimed at ensuring the enforcement of intellectual property rights are essential. The EU is only competent to adopt criminal measures if the criminal measures have been proven “essential”.
The Foundation for a Free Information Infrastructure (FFII) observes that the study fails to prove EU criminal measures aimed at ensuring the enforcement of intellectual property rights are needed. Incidentally, this also indicates that the EU is not competent to ratify the Anti-Counterfeiting Trade Agreement’s criminal measures.
The EU study reports a “general understanding that the problems caused by transnational crimes create a strong need for harmonization of the criminal laws of the EU member states.”
The FFII comments that a general understanding is no proof, and points to the strong averse reaction by the Dutch Parliament to an earlier EU enforcement law proposal to show that the purported “general understanding” doesn’t even exist. The study does not address the Dutch Parliament’s objections, nor even mentions them.
FFII analyst Ante Wessels: “Without addressing counter arguments, without proof criminal measures are essential, the study attacks core aspects of national sovereignty: prosecutors’ discretion and national criminal courts.”
The EU study advocates criminalisation of patent infringements. Criminalisation of patent infringements is highly controversial. Patent infringements are not a crime in the United States. The European Parliament removed patents from the scope of an earlier EU enforcement law proposal. The Council explicitly excluded it from the Anti-Counterfeiting Trade Agreement’s negotiation mandate.
Ante Wessels: “Patents have unclear validity and scope. It is often unclear whether one violates a patent. In the software sector, there are so many patents, infringement is often unavoidable. Criminal measures against patent infringements give competitors and patent trolls undue powers – especially if there is no national prosecutor’s discretion whether to prosecute. Would we like to see Steve Jobs behind bars? Or Doctors Without Borders?”
For more information, see the FFII analysis of the EU study
We received a scan of a paper version, containing the Questionnaire, document 18259/10 in French and the study. The 6.3 MB questionnaire.tif is the original file, the 48 MB questionnaire.pdf may be more easy to use, the 2.5 MB EU-study.pdf only contains the study. Study on a possible modified proposal on criminal measures aimed at ensuring the enforcement of intellectual property rights
FFII analysis ACTA’s criminal measures
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FFII Berlin Office
The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.
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