Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on measures and procedures to ensure
the enforcement of intellectual property rights
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in
particular Article 95 thereof,
Having regard to the proposal from the Commission1,
Having regard to the opinion of the European Economic and Social
Having regard to the opinion of the Committee of the Regions3,
Acting in accordance with the procedure laid down in Article 251 of the
(1) The achievement of the Internal Market entails eliminating
restrictions on freedom of movement and distortions of competition,
while creating an environment conducive to innovation and investment.
In this context, the protection of intellectual property is an
essential element for the success of the Internal Market. The
protection of intellectual property is important not only for promoting
innovation and creativity, but also for developing employment and
(2) The protection of intellectual property must allow the inventor or
creator to derive a legitimate profit from his invention or creation.
It must also allow the widest possible dissemination of works, ideas
and new know-how. At the same time, the protection of intellectual
property must not hamper freedom of expression or the free movement of
information, or the protection of personal data, including on the
(3) However, without effective means of enforcing intellectual
property, innovation and creativity are discouraged and investment
diminished. It is therefore necessary to ensure that the substantive
law on intellectual property, which is nowadays largely part of the
acquis communautaire, is applied effectively in the Community. In this
respect, the means of enforcing intellectual property rights are of
paramount importance for the success of the single market.
(4) At international level, all Member States, as well as the Community
itself as regards matters within its competence, are bound by the
Agreement on Trade-Related Aspects of Intellectual Property (the "TRIPS
Agreement"), approved, as part of the multilateral negotiations of the
Uruguay Round, by Council Decision 94/800/EC5 concluded in the
framework of the World Trade Organisation.
(5) The TRIPS Agreement contains, in particular, provisions on the
means of enforcing intellectual property rights which are common
standards applicable at international level and implemented in all
Member States. The provisions of this Directive should not affect
Member States' international obligations, including those under the
(6) There are also international conventions to which all Member States
are parties and which also contain provisions on the means of enforcing
intellectual property rights. These include, in particular, the Paris
Convention for the Protection of Industrial Property, the Berne
Convention for the Protection of Literary and Artistic Works, and the
Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organisations.
(7) It emerges from the consultations held by the Commission on this
question that, in the Member States, and despite the provisions of the
TRIPS Agreement, there are still major disparities as regards the means
of enforcing intellectual property rights. For instance, the
arrangements for applying provisional measures, which are used in
particular to safeguard evidence, the calculation of damages, or the
arrangements for applying injunctions, vary widely from one Member
State to another. In some Member States, there are no measures and
procedures such as the right of information and the recall, at the
infringer's expense, of the infringing goods placed on the market.
(8) The disparities between the systems of the Member States for
enforcing intellectual property rights are prejudicial to the proper
functioning of the Internal Market and make it impossible to ensure
that intellectual property rights enjoy an equivalent level of
protection throughout the Community. This situation does not promote
free movement within the Internal Market nor create an environment
conducive to healthy competition.
(9) The current disparities also lead to a weakening of the substantive
law on intellectual property and to a fragmentation of the Internal
Market in this field. This causes a loss of confidence in the Internal
Market in business circles, with a consequent reduction in investment
in innovation and creation. Infringements appear to be increasingly
linked to organised crime. Increasing use of the Internet enables
pirated products to be distributed instantly around the globe.
Effective enforcement of the substantive law on intellectual property,
which is nowadays largely part of the acquis communautaire, must be
ensured by specific action at Community level. Approximation of the
legislation of the Member States in this field is therefore an
essential prerequisite for the implementation of the Internal Market.
(10) The objective of this Directive is to approximate legislative
systems so as to ensure a high, equivalent and homogeneous level of
protection in the Internal Market.
(11) This Directive does not aim to establish harmonised rules for
judicial cooperation, jurisdiction, the recognition and enforcement of
decisions in civil and commercial matters, nor to deal with applicable
law. There are Community instruments which govern such matters in
general terms and are, in principle, equally applicable to intellectual
(12) This Directive should not affect the application of the rules of
competition, and in particular Articles 81 and 82 of the Treaty. The
measures provided for in this Directive should not be used to unduly
restrict competition in a manner which is contrary to the Treaty.
(13) It is necessary to define the scope of this Directive as widely as
possible in order to encompass all the intellectual property rights
covered by Community provisions in this field and/or by the national
law of the Member State concerned. Nevertheless, that requirement does
not affect the possibility, on the part of those Member States which so
wish, to extend, for internal purposes, the provisions of this
Directive to include acts involving unfair competition, including
parasitic copies, or similar activities.
(13a) The measures provided for in Articles 7(2), 9(1) and 10(1a)
of this Directive need to be applied only in respect of acts committed
on a commercial scale. This is without prejudice to the possibility for
Member States to apply these measures also in respect of other acts.
The acts which are committed on a commercial scale are those carried
out for direct or indirect economic or commercial advantage; this would
normally exclude acts done by end consumers acting in good faith.
(14) This Directive should not affect substantive law on intellectual
property, Directive 95/46/EC of 24 October 1995 of the European
Parliament and of the Council on the protection of individuals with
regard to the processing of personal data and on the free movement of
such data6, Directive 1999/93/EC of the European Parliament and of the
Council of 13 December 1999 on a Community framework for electronic
signatures7 and Directive 2000/31/EC of the European Parliament and of
the Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the Internal
(15) The provisions of this Directive are without prejudice to the
particular provisions for the enforcement of rights and on exceptions
in the domain of copyright and related rights set out in Community
instruments and notably those found in Council Directive 91/250/EEC of
14 May 1991 on the legal protection of computer programs9 or
Directive 2001/29/EC of the European Parliament and of the Council of
22 May 2001 on the harmonisation of certain aspects of copyright and
related rights in the information society10.
(16) The measures and remedies provided for in this Directive should be
determined in each case in such a manner as to take due account of the
specific characteristics of that case, including the specific features
of each intellectual property right and, where appropriate, the
intentional or unintentional character of the infringement.
(17) The persons entitled to request application of these measures and
procedures should be not only the right holders but also persons who
have a direct interest and legal standing in so far as permitted by and
in accordance with the applicable law, which may include professional
organisations in charge of the management of those rights or for the
defence of the collective and individual interests for which they are
(18) Since copyright exists from the creation of a work and does not
require formal registration, it is appropriate to adopt the rule in
Article 15 of the Berne Convention, which establishes the
presumption whereby the author of a literary or artistic work is
regarded as such if his name appears on the work. A similar presumption
should be applied to the owners of related rights since often it is the
holder of a related right, such as a phonogram producer, who will seek
to defend rights and engage in fighting acts of piracy.
(19) Given that evidence is an element of paramount importance for
establishing the infringement of intellectual property rights, it is
appropriate to ensure that effective means of presenting, obtaining and
protecting evidence are available. The procedures must have regard to
the rights of the defence and must provide the necessary guarantees
including the protection of confidential information. For infringements
carried out on a commercial scale it is also important that the courts
may order access, where appropriate, to banking, financial or
commercial documents under the control of the alleged infringer.
(21) Other measures designed to ensure a high level of protection exist
in certain countries and must be made available in all the Member
States. This is the case with the right of information, which allows
precise information to be obtained on the origin of the infringing
goods or services, the distribution channels and the identity of the
third parties involved in the infringement.
(22) It is also essential to provide for provisional measures allowing
for the immediate termination of the infringement without awaiting a
decision on the substance of the case, while observing the rights of
the defence, ensuring the proportionality of the provisional measures
as appropriate to the characteristics of the case in question and
providing the guarantees needed to cover the costs and the injury
caused to the defendant by an unjustified request. Such measures are
particularly justified when any delay would cause irreparable prejudice
to the holder of an intellectual property right.
(22a) Without prejudice to any other measures and remedies available,
rightholders should have the possibility of applying for an injunction
against an intermediary whose services are being used by a third party
to infringe the rightholder's industrial property right. The conditions
and modalities relating to such injunctions should be left to the
national law of the Member States. As far as infringements of copyright
and related rights are concerned, a comprehensive level of
harmonisation is already provided for in Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in the
information society. The provision of Article 8, paragraph 3 of
Directive 2001/29/EC should therefore not be affected by this Directive.
(23) Depending on the particular case, and if justified by
circumstances, the measures and procedures to be provided for should
include prohibitory measures aimed at preventing further infringements
of intellectual property rights. Moreover there should be corrective
measures, where appropriate at the expense of the infringer, such as
the recall, the removal definitively from the channels of commerce, or
destruction of the infringing goods and in appropriate cases the
materials and implements principally used in the creation or
manufacture of these goods. These corrective measures should take
account of the interests of third parties including, in particular,
consumers and private parties acting in good faith.
(23a) Member States should have the option of providing, in cases where
an infringement has been carried out unintentionally and without
negligence and where the corrective measures or injunctions provided
for by this Directive would be disproportionate, for the possibility,
in appropriate cases, of pecuniary compensation being awarded to the
injured party as an alternative measure. However, where the commercial
use of counterfeit goods or the supply of services would constitute an
infringement of law other than intellectual property law or would be
likely to harm consumers, such use or supply should remain prohibited.
(24) With a view to compensating for the prejudice suffered as a result
of an infringement committed by an infringer who has engaged in an
activity in the knowledge, or with reasonable grounds for knowing, that
it would give rise to such an infringement, the amount of damages
awarded to the right holder should take account of all appropriate
aspects, such as loss of earnings incurred by the right holder, or
unfair profits made by the infringer and, where appropriate, any moral
prejudice caused to the right holder. As an alternative, for example
where it would be difficult to determine the amount of the actual
prejudice suffered, the amount of the damages might be derived from
elements such as the royalties or fees which would have been due if the
infringer had requested authorisation to use the intellectual property
right in question (the aim being not to introduce an obligation to
provide for punitive damages but to allow for compensation based on an
objective criterion while taking account of the expenses incurred by
the right holder, such as the costs of identification and research).
(24a) To act as a supplementary deterrent to future infringers and
contribute to the awareness of the public at large, it is useful to
publicise judgments in intellectual property infringement cases.
(25) In addition to the civil and administrative measures and
procedures provided for under this Directive, criminal sanctions also
constitute, in appropriate cases, a means of ensuring the enforcement
of intellectual property rights.
(27) Industry must take an active part in the fight against piracy and
counterfeiting. The development of codes of conduct in the circles
directly affected is a supplementary means of bolstering the regulatory
framework. The Member States, in collaboration with the Commission,
should encourage the development of codes of conduct in general.
Monitoring of the manufacture of optical discs, particularly by means
of an identification code embedded in discs produced on the territory
of the Community, helps to limit infringements of intellectual property
in this sector which suffers from piracy on a large scale. However,
these technical protection measures must not be misused with a view to
protecting markets and preventing parallel imports.
(28) In order to facilitate the uniform application of the provisions
set out in this Directive, it is appropriate to provide for cooperation
and the exchange of information between Member States, on the one hand,
and between the Member States and the Commission on the other, in
particular by creating a network of correspondents designated by the
Member States and by providing regular reports assessing the
application of this Directive and the effectiveness of the measures
taken by the various national bodies.
(29) Since, for the reasons already described, the objectives of this
Directive can best be achieved at Community level, the Community may
adopt measures, in accordance with the principle of subsidiarity as set
out in Article 5 of the Treaty. In accordance with the principle of
proportionality as set out in that Article, this Directive does not go
beyond what is necessary in order to achieve its objectives.
(30) This Directive respects the fundamental rights and observes the
principles recognised in particular by the Charter of Fundamental
Rights of the European Union. In particular, this Directive seeks to
ensure full respect for intellectual property (Article 17(2) of
the Charter of Fundamental Rights of the European Union),
HAVE ADOPTED THIS DIRECTIVE:
Objective and scope
This Directive concerns the measures and procedures necessary to ensure
the enforcement of intellectual property rights. For the purposes of
this Directive, the term "intellectual property rights" includes
industrial property rights.
1. Without prejudice to the means which are or may be provided for in
Community or national legislation, in so far as those means may be more
favourable for right holders, the measures and procedures provided for
by this Directive shall apply, in accordance with Article 3, to
any infringement of intellectual property rights as provided for by
Community law and/or by the national law of the Member State concerned.
2. This Directive shall be without prejudice to the particular
provisions on the enforcement of rights and on exceptions contained in
Community legislation concerning copyright and rights related to
copyright, notably those found in Directive 91/250/EEC and, in
particular, Article 7 of that Directive, or Directive 2001/29/EC and,
in particular, Articles 2 to 6 and Article 8 of that
3. This Directive shall not affect:
(a) the Community provisions governing the substantive law on
intellectual property, Directive 95/46/EC, Directive 1999/93/EC or
Directive 2000/31/EC in general, and the provisions of Articles 12 to
15 in particular of that Directive;
(b) Member States' international obligations and notably the Agreement
on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS
Agreement"), including those relating to criminal procedures and
(c) any national provisions in Member States relating to criminal
procedures or penalties in respect of infringement of intellectual
Measures and procedures
Member States shall provide for the measures, procedures and remedies
needed to ensure the enforcement of the intellectual property rights
covered by this Directive. These measures, procedures and remedies
shall be fair and equitable, and shall not be unnecessarily complicated
or costly, nor entail unreasonable time-limits or unwarranted delays.
The measures and remedies shall also be effective, proportionate and
dissuasive and shall be applied in such a manner as to avoid the
creation of barriers to legitimate trade and to provide for safeguards
against their abuse.
Merged with Article 3.
Persons entitled to apply for the
application of the measures and procedures
Member States shall recognise as persons entitled to seek
application of the measures and procedures referred to in this Chapter:
- the holders of intellectual property rights in accordance with the
provisions of the applicable law,
- all other persons authorised to use those rights, in particular
licensees, in so far as permitted by and in accordance with the
provisions of the applicable law,
- intellectual property collective rights management bodies which are
regularly recognised as having a right to represent holders of
intellectual property rights, in so far as permitted by and in
accordance with the applicable law,
- professional defence bodies which are regularly recognised as having
a right to represent holders of intellectual property rights, in so far
as permitted by and in accordance with the applicable law.
Presumption of authorship or ownership
For the purposes of applying the measures and procedures provided for
in this Directive,
(a) in order that the author of a literary or artistic work, in the
absence of proof to the contrary, be regarded as such, and consequently
be entitled to institute infringement proceedings, it shall be
sufficient for his name to appear on the work in the usual manner;
(b) the provision under (a) shall apply mutatis mutandis to the holders
of rights related to copyright with regard to their protected subject
1. Member States shall ensure that, on application by a party which has
presented reasonably available evidence sufficient to support its
claims, and has, in substantiating those claims, specified evidence
which lies in the control of the opposing party, the competent judicial
authorities may order that such evidence be produced by the opposing
party, subject to the protection of confidential information. For the
purposes of this paragraph, Member States may provide that a reasonable
sample of a substantial number of copies of a work or any other
protected object be considered by the competent judicial authorities to
constitute reasonable evidence.
2. Under the same conditions, in the case of an infringement carried
out on a commercial scale, Member States shall take such measures as
are necessary to enable the competent judicial authorities to order,
where appropriate, on application by a party, the communication of
banking, financial or commercial documents under the control of the
opposing party, subject to the protection of confidential information.
Measures for protecting evidence
1. Member States shall ensure that even before the commencement of
proceedings on the merits of the case the competent judicial
authorities may, on application by a party who has presented reasonably
available evidence to support his claims that his intellectual property
right has been infringed or is about to be infringed, order prompt and
effective provisional measures to preserve relevant evidence in regard
to the alleged infringement, subject to the protection of confidential
information. Such measures may include the detailed description, with
or without the taking of samples, or the physical seizure of the
infringing goods, and, in appropriate cases, the materials and
implements used in the production and/or distribution of these goods
and the documents relating thereto. These measures shall be taken, if
necessary without the other party having been heard, in particular
where any delay is likely to cause irreparable harm to the right
holder, or where there is a demonstrable risk of evidence being
Where evidence-protection measures have been adopted without the other
party having been heard, the affected parties shall be given notice
immediately after the execution of the measures at the latest. A
review, including a right to be heard, shall take place upon request of
the affected parties with a view to deciding, within a reasonable
period after the notification of the measures, whether the measures
shall be modified, revoked or confirmed.
2. Member States shall ensure that the evidence-protection measures may
be subject to the applicant's lodging of an adequate security or
equivalent assurance intended to ensure compensation for any prejudice
suffered by the defendant as provided for in paragraph 4.
3. Member States shall ensure that the evidence-protection measures
shall be revoked or otherwise cease to have effect upon request by the
defendant, without prejudice to the damages which may be claimed, if
the applicant has not instituted legal proceedings
leading to a decision on the merits of the case before the competent
judicial authority within a reasonable period, to be determined by the
judicial authority ordering the measures when the law of a Member State
so permits or, in the absence of such determination, within a period
not to exceed 20 working days or 31 calendar days, whichever
is the longer.
4. Where the evidence-protection measures have been revoked, or where
they lapse due to any act or omission by the applicant, or where it is
subsequently found that there has been no infringement or threat of
infringement of any intellectual property right, the judicial
authorities shall have the authority to order the applicant, upon
request of the defendant, to provide the defendant with appropriate
compensation for any injury caused by these measures.
5. Member States may take measures to protect witnesses' identity.
RIGHT OF INFORMATION
Right of information
1. Member States shall ensure that, in the context of proceedings
concerning an infringement of an intellectual property right and in
response to a justified and proportionate request of the claimant, the
competent judicial authorities may order that information on the origin
and distribution networks of the goods or services which infringe an
intellectual property right be provided by the infringer and/or any
other person who:
(a) was found in possession of the infringing goods on a commercial
(b) was found to be using the infringing services on a commercial
(ba) was found to be providing on a commercial scale services used in
infringing activities; or
(c) was indicated by the person referred to in point (a), (b) or (ba)
as being involved in the production, manufacture or distribution of the
goods or the provision of the services.
2. The information referred to in paragraph 1 shall, as appropriate,
(a) the names and addresses of the producers, manufacturers,
distributors, suppliers and other previous holders of the goods or
services, as well as the intended wholesalers and retailers;
(b) information on the quantities produced, manufactured, delivered,
received or ordered, as well as the price obtained for the goods or
services in question.
3. Paragraphs 1 and 2 shall apply without prejudice to other statutory
(a) grant the right holder rights to receive fuller information;
(b) govern the use in civil or criminal proceedings of the information
communicated pursuant to this Article;
(c) govern responsibility for misuse of the right of information;
(d) afford an opportunity for refusing to provide information which
would force the person referred to in paragraph 1 to admit to his own
participation or that of his close relatives in an infringement of an
intellectual property right ; or
(e) govern the protection of confidentiality of information sources or
the treatment of personal data.
1. Member States shall ensure that the judicial authorities may, at the
request of the applicant:
(a) issue against the alleged infringer an interlocutory injunction
intended to prevent any impending infringement of an intellectual
property right, or to forbid, on a provisional basis and subject, where
appropriate, to a recurring penalty payment where provided for by
national law, the continuation of the alleged infringements of that
right, or to make such continuation subject to the lodging of
guarantees intended to ensure the compensation of the right holder; an
interlocutory injunction may also be issued, under the same conditions,
against an intermediary whose services are being used by a third party
to infringe an intellectual property right ; injunctions against
intermediaries whose services are used by a third party to infringe a
copyright or a related right are covered by Directive 2001/29/EC ;
(b) order the seizure or delivery up of the goods suspected of
infringing an intellectual property right so as to prevent their entry
into or movement within the channels of commerce.
1a. In cases of infringement committed on a commercial scale, the
Member States shall ensure that, if the injured party demonstrates
circumstances likely to endanger the recovery of damages, the judicial
authorities may order the precautionary seizure of the movable and
immovable property of the alleged infringer, including the blocking of
his bank accounts and other assets. To this end, the competent
authorities may order the communication of bank, financial or
commercial documents, or appropriate access to the relevant information.
1b. The judicial authorities shall, in respect of the measures referred
to in paragraphs 1 and 1a, have the authority to require the
applicant to provide any reasonably available evidence in order to
satisfy themselves with a sufficient degree of certainty that the
applicant is the right holder and that the applicant's right is being
infringed, or that such infringement is imminent.
2. Member States shall ensure that the provisional measures referred to
in paragraphs 1 and 1a may, in appropriate cases, be taken without
the defendant having been heard, in particular when any delay would
cause irreparable prejudice to the right holder. In the event of this
happening, the parties shall be so informed without delay after the
execution of the measures at the latest.
A review, including the right to be heard, shall take place upon
request of the defendant with a view to deciding, within a reasonable
time after notification of the measures, whether these measures shall
be modified, revoked or confirmed.
3. Member States shall ensure that the provisional measures referred to
in paragraphs 1 and 1a shall be revoked, or otherwise cease
to have effect, upon request by the defendant, if the applicant does
not institute proceedings leading to a decision on the merits of the
case before the competent judicial authority within a reasonable period
to be determined by the judicial authority ordering the measures where
the Member State 's law so permits or, in the absence of such
determination, within a period not to exceed 20 working days or 31
calendar days, whichever is the longer.
4. The competent judicial authorities may make the provisional measures
referred to in paragraphs 1 and 1a subject to the lodging by the
applicant of adequate security or equivalent assurance intended to
ensure any compensation of the prejudice suffered by the defendant as
provided for in paragraph 5.
5. Where the provisional measures are revoked or where they lapse due
to any act or omission by the applicant, or where it is subsequently
found that there has been no infringement or threat of infringement of
an intellectual property right, the judicial authorities shall have the
authority to order the applicant, upon request of the defendant, to
provide the defendant with appropriate compensation for any injury
caused by these measures.
Deleted (merged with Article 10).
MEASURES RESULTING FROM A
DECISION ON THE MERITS OF THE
Without prejudice to any damages due to the right holder by reason of
the infringement, and without compensation of any sort, Member States
shall ensure that the competent judicial authorities may order, at the
request of the applicant, that appropriate measures be taken with
regard to goods that they have found to be infringing an intellectual
property right and, in appropriate cases, with regard to materials and
implements principally used in the creation or manufacture of these
goods. Such measures shall include:
(a) recall from the channels of commerce,
(b) definitive removal from the channels of commerce or
The judicial authorities shall order that these measures shall be
carried out at the expense of the infringer, unless particular reasons
are invoked for not doing so.
In considering a request for corrective measures, the need for
proportionality between the seriousness of the infringement and the
remedies ordered as well as the interests of third parties shall be
taken into account.
Disposal outside the channels of
Deleted (merged with Article 12).
Destruction of goods
Deleted (merged with Article 12).
Member States shall ensure that, when a judicial decision has been
taken finding an infringement of an intellectual property right, the
judicial authorities may issue against the infringer an injunction
aimed at prohibiting the continuation of the infringement. Where
provided for by national law, non-compliance with an injunction shall,
where appropriate, be subject to a recurring penalty payment, with a
view to ensuring compliance.
Member States shall also ensure that rightholders are in a position to
apply for an injunction against intermediaries whose services are used
by a third party to infringe an intellectual property right, without
prejudice to Article 8(3) of Directive 2001/29/EC.
Member States may provide that, in appropriate cases and at the request
of the person liable to be subjected to the measures provided for in
this Section, the competent judicial authorities may order pecuniary
compensation to be paid to the injured party instead of applying the
above measures if that person has acted unintentionally and without
negligence, if execution of the measures in question would cause him
disproportionate harm and if pecuniary compensation to the injured
party appears reasonably satisfactory.
DAMAGES AND LEGAL COSTS
1.Member States shall ensure that the competent judicial authorities,
on application by the injured party, shall order the infringer who
knowingly, or with reasonable grounds to know, engaged in an infringing
activity, to pay the right holder damages appropriate to the actual
prejudice suffered by him as a result of the infringement.
When the judicial authorities set the damages :
a) they shall take into account all appropriate aspects, such as the
negative economic consequences, including lost profits, which the
injured party has suffered, any unfair profits made by the infringer
and, in appropriate cases, elements other than economic factors, such
as the moral prejudice caused to the right holder by the infringement ;
b) as an alternative to (a), they may, in appropriate cases, set the
damages as a lump sum on the basis of elements such as at least the
amount of royalties or fees which would have been due if the infringer
had requested authorisation to use the intellectual property right in
3. In cases where the infringer did not knowingly, or with reasonable
grounds to know, engage in infringing activity, Member States may lay
down that the judicial authorities may order the recovery of profits or
the payment of damages which may be pre-established.
Member States shall ensure that reasonable and proportionate legal
costs and other expenses incurred by the successful party shall as a
general rule be borne by the unsuccessful party, unless equity does not
Publication of judicial decisions
Member States shall ensure that, in legal proceedings instituted for
infringement of an intellectual property right, the judicial
authorities may order, at the request of the applicant and at the
expense of the infringer, appropriate measures for the dissemination of
the information concerning the decision, including displaying the
decision and publishing it in full or in part.
Member States may provide for other additional publicity measures which
are appropriate to the particular circumstances, including prominent
SANCTIONS BY MEMBER STATES
Sanctions by Member States
Without prejudice to the civil and administrative measures and
procedures laid down by this Directive, Member States may apply other
appropriate sanctions in cases where intellectual property rights have
Legal protection of technical devices
Codes of conduct
1. Member States shall encourage:
(a) the development by trade or professional associations or
organisations of codes of conduct at Community level aimed at
contributing towards the enforcement of the intellectual property
rights referred to in Article 2, particularly by recommending the
use on optical discs of a source code enabling the identification of
the origin of their manufacture;
(b) the submission to the Commission of draft codes of conduct at
national and Community level and of any evaluations of the application
of these codes of conduct.
1. Three years after the date laid down in Article 25(1), each
Member State shall submit to the Commission a report informing it of
the situation with regard to implementation of this Directive.
On the basis of those reports, the Commission shall draw up a report on
the application of this Directive, including an assessment of the
effectiveness of the measures taken, as well as an evaluation of its
impact on innovation and the development of the information society.
That report shall be transmitted to the European Parliament, the
Council and the European Economic and Social Committee. It shall be
accompanied, if necessary, and in the light of developments in the
Community legal order, by proposals for amendments to this Directive.
2. Member States shall provide the Commission with all the aid
and assistance it may need when drawing up the report referred to in
the second subparagraph of paragraph 1.
Exchange of information and
For the purpose of promoting cooperation, including the exchange of
information, among Member States and between Member States and the
Commission, each Member State shall designate one or more national
correspondents for any questions relating to the implementation of the
measures provided for by this Directive. It shall communicate the
details of the correspondents to the other Member States and to the
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive by ?
[twenty-four months after the date of adoption of this Directive] at
the latest. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference
to this Directive or shall be accompanied by such reference on the
occasion of their official publication. The methods of making such
reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the
provisions of national law which they adopt in the field covered by
Entry into force
This Directive shall enter into force on the twentieth day following
its publication in the Official Journal of the European Union.
This Directive is addressed to the Member States.