[ffii] Dutch Parliament says No to European criminal law against IP violations

Jonas Maebe jmaebe at ffii.org
Mon Jul 3 13:24:22 CEST 2006


PRESS RELEASE -- [ Europe / Economy / ICT ]

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Dutch Parliament says No to European criminal law against IP violations
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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."


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Background information
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* 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."


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Links
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* The advice adopted by Dutch Parliament (in Dutch)
http://www.ffii.org/~jmaebe/ipred2/KST98457.pdf

* Analysis of the directive: "IPRED2: European Community goes criminal"
http://wiki.ffii.org/Ipred2060510En

* Professor in Law Reto M. Hilty (Max Planck Institute for IP) on the
competence question
http://www.ipred.org/Hilty

* Minister Donner not pleased with European interference in Dutch
criminal law
http://wiki.ffii.org/IpredDonner060428En

* The First Chamber adopted the text unanimously on June 13th 2006
http://www.eerstekamer.nl/9324000/1/j9vvgh5ihkk7kof/vhbges7mztl8

* The Second Chamber adopted the text unanimously on June 29th 2006
http://www.tweedekamer.nl/documentatie/stenografische_verslagen/index.jsp

* European Court of Justice judgement D-176/03
http://curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79949086C19030176&doc=T&ouvert=T&seance=ARRET

* Permanent link to this press release
http://wiki.ffii.org/IpredNlParl060629En


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Contact Information
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Jonas Maebe
FFII Board Member
jmaebe at ffii.org
(Dutch/English)

Ante Wessels
FFII analyst
+31-6-100 99 063
ante at ffii.org
(Dutch/English)

Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion at ffii.org
(French/English)


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About the FFII -- http://www.ffii.org
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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.





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