Following a Judgement from the European Court of Justice (ECJ) from 2005 clarifying the role of the European Commission in the enactment of criminal law provisions, in April 2006 a new draft Directive aimed at ensuring the enforcement of IP rights was published.
The European Parliament voted on the proposal in plenary in April 2008, unfortunately limiting the scope to those infringements committed on a commercial scale. Counterfeiting and piracy, and infringements of intellectual property in general, have increased significantly in recent years and seriously undermine several sectors of the European economy, among which is publishing. Even if the introduction of a narrow definition of commercial scale by the European Parliament is not welcome, it should be kept in mind that the proposal sets a “minimum” and not a “maximum” threshold.
The proposal is currently still pending in the Council of Ministers. The Council delayed the discussion waiting for the ECJ to rule for the second time on the competence European Commission in the field of criminal matters. The ECJ gave its judgment in October 2007, deciding that the EU has the competence to propose criminal sanctions to comply with EU legislation but that it cannot determine the type and level of criminal penalties to be imposed by Member States on infringers. Currently, the Council has not scheduled the discussion on the proposal.
Under consideration by the Commission is also a legislative proposal on criminal measures aimed at ensuring the enforcement of intellectual property rights, to replace its own 2006 proposal; it should introduce comprehensive criminal sanctions (common definition, level and types of penalties) in Member States and define infringements of an intellectual property right as a criminal offence.
For the time being the initiative is stalled; it could be resumed after the purported review of the Enforcement Directive.