P-8950/10EN Answer given by De Gucht on behalf of the Commission (29.11.2010)
The relevant provisions of ACTA were negotiated by the rotating EU Presidency on behalf of the EU Member States. Therefore, the Presidency is best placed to respond to this question.
However, the Commission notes that its reading of footnote 9 is not that it extends penal responsibility to new infringements, but that it clarifies that infringements which are wilful and on a commercial scale (as already required in the main text of Article 2.14 ACTA) are to be treated as penal infringements also when they take the form of an importation or an exportation.
Question JAN PHILIPP ALBRECHT: ACTA – legality principle (P-8950/2010)
Considering that ACTA art 2.14.1 contains a definition of commercial scale: “For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage” and considering that ACTA footnote 9 says: “Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to exportation and importation of pirated copyright or counterfeit trademark goods by providing for distribution, sale or offer for sale of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties”;
– Has the Commission assessed the compatibility of the definition of commercial scale in ACTA with the requirements of the legality principle of criminal law?
– Does the Commission deem it appropriate to extend criminal responsibility in a footnote as is done in footnote 9?
The Commission is the guardian of the Treaties and oversees the respect for fundamental rights. It needs to have a position on the matter.