Brussels, 05/12/2011 (Agence Europe) - Goods from non-EU states in customs warehousing or in transit in the EU may only be detained as “counterfeit” or “pirated” goods if it is proven that they are intended to be put on sale in the EU.
That was the ruling of the Court of Justice of the EU on Thursday 1 December on the conduct of EU customs authorities when confronted with similar situations. A Belgian court (case C-466/09) and a British court (case C-495/09) had asked the Court of Justice if goods from non-member states in transit through or being warehoused in the EU could be classified as “counterfeit” or “pirated” goods simply if they are brought into the EU, without being marketed.
The Court stated firstly that goods from non-EU states which are imitations of goods protected in the EU and are placed under suspensive customs procedures (warehousing or transit) cannot infringe intellectual property rights and, therefore, be classified as counterfeit or pirated goods for the purposes of EU law merely by having been brought into the EU customs territory.
However, these same goods may infringe the aforementioned rights if it is proved or if there are indications which show that, during the time the goods are under suspensive procedures in the EU or even before their arrival in the customs territory of the EU, they are the subject of a commercial act directed at European Union consumers, such as a sale, offer for sale or advertising. Thus the customs authority may provisionally detain the goods in question even when there are indications before it that one or more of the operators involved in the manufacture, consignment or distribution of the goods is about to do so or is disguising its commercial intentions. Among such indications the Court includes the fact that the destination of the goods is not declared whereas the suspensive procedure requested requires such a declaration, the lack of precise or reliable information as to the identity or address of the manufacturer or consignor of the goods, a lack of cooperation with the customs authorities or the discovery of documents or correspondence concerning the goods in question suggesting that there is liable to be a diversion of those goods to European Union consumers. (FG/transl.rt)