President. The next item is the report (A6-0073/2007) by Mr Zingaretti, on behalf of the Committee on Legal Affairs, on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COM(2006)0168 – C6-0233/2005 – 2005/0127(COD))

  Günter Verheugen, Vice-President of the Commission. (DE) Mr President, honourable Members, infringements of intellectual property rights are on a continuing upward curve and now constitute a really serious threat to the European economy and to European society.

The differences in sanctions applicable from one country to another not only interfere with the smooth functioning of the internal market but also make it more difficult to combat the counterfeiting and piracy of products. It is vital that the holders of rights should enjoy equal protection throughout the Community.

Problems of consumer protection also arise in connection with health and safety issues. The Internet helps counterfeiters, who can use it to market faked or imitation products around the world without any loss of time; it is evident that their schemes are increasingly tied in with organised crime, and I have to say that the number of products that have had to be taken off the internal market has recently increased to a disturbing degree, being, as a rule, faked versions of other products, so action to address the problem of counterfeit goods is of the utmost importance to the Community, and the vote here in your House is an important step in getting it underway.

The Commission is glad that your House accepts and endorses the general principle underlying this amended proposal for a directive, and I should like to take this opportunity to express my thanks to the rapporteur, Mr Zingaretti.

As long ago as 2006, when – on 7 September that year – it adopted a resolution on the need for immediate action against counterfeit medical products, your House has been supportive of the Commission in its view that the sanctions available under criminal law need to be standardised as soon as possible. The Commission is also glad to note that the committee’s report envisages the same level of penalties as are already applied to serious crimes.

The Commission is, however, unhappy about a number of points that have emerged from the debate, firstly about Parliament’s desire to limit the scope of the directive solely to the ambit of the Community’s powers, and I have to say that that will result in serious difficulties when it comes to transposing the directive. It also has to be said that the definition of the concept of ‘right to intellectual property’ does not appear to be adequate, since a whole array of aspects of it have been left unclear. The definitions of the terms ‘infringement on a commercial scale’ and ‘deliberate infringement of a right to intellectual property’ do not ultimately bring any additional benefit; they are capable of being misunderstood and of undermining legal certainty.

In the interests of consumer safety and of our economy’s competitiveness, I urge you to vote in favour of the Commission’s proposal.

  Nicola Zingaretti (PSE), rapporteur. – (IT) Mr President, ladies and gentlemen, I should like to thank the Commissioner for his kind words about this report.

This important directive is at last coming to the end of its legislative process, and I should first of all like to thank all those who have devoted their energies in recent months to a passionate and, in my view, extremely useful debate, starting with the shadow rapporteurs and all the staff, without whom it would not have been possible to address such complex subjects.

Much has been said about this directive; some of the comments have been well founded while others have missed the point, not least because these are highly complex subjects. I believe, therefore, that it is important to make it clear what we are talking about. This is a directive against organised crime and in the end, I must emphasise, against organised crime in both its traditional form and the form that it has recently been adopting. It is, then, a directive against the damage that crime does to Europe through the counterfeiting of goods and the infringement of intellectual property rights.

During these months, many Members have asked me why we have to harmonise. My answer is that organised crime has long been a global activity that knows no borders and that can count on vast resources. The law, in contrast, is fragmented into many, sometimes contradictory legal systems, and is therefore the weaker for it. It has been calculated that over the last 10 years the volume of counterfeit goods has risen by 1 600%, and I believe that Europe needs to do something, because we are talking about a vast market and very real, material things, such as toys, clothes, shoes, food, cosmetics, chemicals, gastronomic products with false designations of origin, spectacles, compact discs, DVDs and other things, in other words all goods that European consumers buy every day.

As I have said, this activity causes enormous damage. It damages Europe’s industries, because of course counterfeiting changes all the most basic rules of the market and competition, and it harms workers, because of course those who produce counterfeit goods do so with complete disregard for the laws that protect the rights of the people making them, and because the counterfeit markets resulting from these criminal activities cause recession and unemployment.

Counterfeiting is said to have put 125 000 people out of work in Europe over the last ten years. As a result, it damages the economy because of tax evasion, and it harms consumers, because here in Parliament we spend many hours writing regulations to protect European citizens but not fighting effectively against counterfeiting, and we have no means of enforcing these regulations.

One form that I regard as particularly serious is the counterfeiting of brands of generic medicines, which are often marketed in developing countries, and I am delighted that the executive secretary of the World Health Organization’s anti-counterfeiting task force has spoken out in favour of the report, since it specifically refers to the health risks and rates the counterfeiting of medicines as being extremely serious.

I therefore believe that we have to go ahead with this. I think the text of the directive introduces some important new points even compared with the Commission’s text, and that we have reached a positive compromise. I think it is important that the scope of the directive has been made clearer and also restricted, by excluding patents, for example, for which civil law remains the most suitable instrument for resolving disputes.

Although this is a highly controversial text, my view is that we must not stop and that we cannot escape from the reality of these arguments. By harmonising our criminal measures we are taking a leap forwards in really developing the European single market, which is certainly helped by rules, but also by provisions like these which prevent the rules from being disregarded all the time. Acting at this level therefore aids and strengthens Europe as a political entity, but most of all it strengthens the idea of a Europe that is useful to its citizens.

We are coming to this parliamentary vote in the comforting position of having received very substantial support for the directive at the vote in the Committee on Legal Affairs. That is why I hope that a large majority will support this compromise, because powerful interests and lobbies are now hoping that the European Parliament will not do anything. I believe, however, that it would harm our image and damage us politically if Parliament were to throw up its hands at such a devastating crime as counterfeiting and say that Europe could not do anything to fight it. In the past, Parliament has been in the forefront in developing the single market and political Europe, and I am convinced that it will be there again this time.

  David Hammerstein Mintz (Verts/ALE), draftsman of the opinion of the Committee on Industry, Research and Energy. – (ES) The text on which we are going to vote, the Commission’s text, bears no relation to the opinion of the Committee on Industry, Research and Energy and bears no relation to the legitimate fight against the fraud and piracy that affects the health and safety of persons. That is something on which we all agree.

However, this amended proposal on intellectual property rights is intended to criminalise the exchange of information and culture. By voting in favour of the amended proposal on intellectual property rights, Parliament would be treating mafias in the same way as ordinary citizens. Neither the issue of the intention to make profits nor the degree of criminality are clarified. The scope of this Directive is indiscriminate and it lumps everything in the criminal field, though the civil is generally working well.

Furthermore, great legal uncertainty is created, leading to a hysterical witch hunt which flies off in all directions, frightens the citizens and paralyses the innovation of thousands of small and large businesses which should not be living in fear of going to prison, and we have already seen a massive negative reaction to this Directive on the Internet.

We cannot act in that way, contrary to the flow of information and culture.

  Rainer Wieland (PPE-DE), draftsman of the opinion of the Committee on Civil Liberties, Justice and Home Affairs. – (DE) Mr President, the lead committee on this report is that on Legal Affairs and the Internal Market, to which I in fact belong, and which concerns itself primarily with the rights to intellectual property, but I am now the draftsman of the opinion on this matter of the Committee on Civil Liberties, Justice and Home Affairs, and propose to limit myself to considering it from that angle.

Commissioner Verheugen discussed our need for this piece of legislation, and it is indeed true that we do, but we should be doing more than merely constantly tinkering with the minimum penalty. At the end of the day, adding or subtracting a whole year or six months to or from the minimum or maximum penalty helps nobody. I am firmly persuaded – and the Committee on Civil Liberties, Justice and Home Affairs has come round to this view – that we have to make a start on working on the principle of precision. We have put the case for this directive ultimately to include – irrespective of whether patents are included, which is, in the first instance, irrelevant – a positive list of its scope, so that the public – for whom the legislation is intended – do not get to read of some vague concept, but can see a list showing where and in what ways they can expose themselves to penalties.

In so doing, we are – as the Commissioner said – entering the realm of definitions. If we now start, in civil law, to put together what is termed a toolbox, then we are also on the threshold of laying down similar definitions in the sphere of criminal law too. There is no use fiddling with the legal consequences unless we also work on the definitions; that is what we must do, that is why this directive is a first step, and that is why I do not quite see the point of the criticism. One starting point is the attempt at defining what is meant by ‘commercial’. We are trying to define the term ‘intention’, but please can we do this not only with reference to this area of applicability, but …

(The President cut off the speaker.)

  Hans-Peter Mayer, on behalf of the PPE-DE Group. – (DE) Mr President, ladies and gentlemen, speaking as a shadow rapporteur and on behalf of the Committee on Legal Affairs, I would like to thank Mr Zingaretti for his successful report, and, above all, for his outstanding cooperation.

I should like to emphasise that our intention with this report should not be to make criminals of the EU’s citizens when what we want to do is to punish the criminal gangs, organised criminals, and professional counterfeiters. I myself see it as being of the utmost importance that there should be a derogation for private users motivated by personal reasons rather than by the desire for profit.

The compromise achieved in the Committee on Legal Affairs on definitions is, quite simply, a practicable solution, and, like my colleague Mr Wieland, I welcome the definition of ‘infringement on a commercial scale’ and of ‘deliberate infringement of a right to intellectual property’, as well as the positive list from which patents are excluded.

It also proved possible to arrive at a satisfactory solution to Article 3’s description of the characteristics of offences, so that, firstly, every deliberate infringement on a commercial scale, thirdly, any attempt at such infringement of the law, and thirdly, aiding and inciting the committal of the act are considered as offences. Since the oral amendment relating to incitement to the act originated from me, I should like once more to make it clear that the translations are problematic and that some of them are positively wrong.

It is intended that the fines should avoid causing disruption to national criminal law systems in their applicability to bodies with legal personality, and it is for the Member States themselves to decide whether they want to make such bodies liable to the sanctions of the criminal law or only to fines.

These are European rules, and every Member State may tighten them up, as some indeed already do, and we want to leave responsibility for that with the Member States.

  Manuel Medina Ortega, on behalf of the PSE Group. – (ES) Mr President, the report by Mr Zingaretti on the amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights is a very balanced proposal that has obtained broad support in the Committee on Legal Affairs and also, to a certain extent, in the other committees that have dealt with the issue.

As Mr Zingaretti has pointed out, intellectual property deserves protection and I believe that what the Committee on Legal Affairs has done by means of the various amendments that it has presented is perhaps to tone down some of the terms favoured by Mr Mayer, who has just spoken on behalf of the Group of the European People's Party (Christian Democrats) and European Democrats.

Specifically, for example, it makes no sense to extend criminal protection to patents — to intellectual property — which in reality is protected in the civil field, given the complications that that may cause.

Neither does it make sense to criminalise a series of activities — those of critics, journalists, intellectuals or teachers, who, as a result of simple meeting, may end up ‘behind bars’ — or that of an innocent user of the broadcast media that Internet technology provides us with these days, as a result of which, by pressing a key at a particular time, one may find oneself accused of a criminal infringement.

I believe that it is important that we strengthen the criminal protection of intellectual property but that it should be done in accordance with certain principles so that criminal protection is not taken any further than is strictly necessary. Criminal protection is always protection of an exceptional nature, since there are other legislative means for achieving that protection.

I believe that Mr Zingaretti’s proposals – the proposal taken up in the report by the Committee on Legal Affairs and the amendments that in the end have been presented jointly with Mr Mayer – enable us to restrict the scope of this criminal protection and that this plenary should therefore approve this report and support the appropriate amendments in the corresponding vote.

  Toine Manders, on behalf of the ALDE Group. – (NL) Mr President, I should like to thank Mr Zingaretti for his cooperation. We have spent many hours discussing this issue, which is, after all, a sensitive one.

According to the OECD, counterfeit goods account for an annual amount of approximately EUR 600 billion worldwide, and it is mainly criminal organisations, operating on a worldwide scale, who are responsible for this. Counterfeiting represents a major drain on tax revenue in government tax departments, because legitimate businesses do, after all, among other things, pay taxes and employ staff, and governments put those taxes to very good use. Levels of employment are good, and we seem to lack the courage to intervene sufficiently in imposing real criminal sanctions and tackling the problem head on. These criminal sanctions, however, should also, of course, be backed up by the raising of public awareness. Customs should be able, in future, to put better and more effective controls in place, thus preventing sea-going vessels, such as the one in Hamburg that was loaded with three million pairs of shoes – all counterfeits from China – from slipping through customs without anyone noticing. I think we should do something about this.

By the same token, the consumer must gain considerably more awareness, and this is why I have tabled an amendment to introduce the concept of the intentional handling of counterfeit products, which means that if a consumer deliberately buys products that are too cheap, they should know that they are buying counterfeit products and by doing so, prevent our society from working properly, and also hamper our economy.

It is unfortunate that we wish to spare consumers too much, because the funny thing is that in France and Italy, handling and buying counterfeit goods is a punishable offence and is counselled against on huge billboards. Regrettably, we did not dare go this far. It is also unfortunate, to my mind, that intellectual property in Europe is still being insufficiently protected, that there is insufficient awareness, because at this rate, we will never achieve the Lisbon objectives to become the world’s most competitive, knowledge-based economy; I hope that we will carry on supporting customs and improving legislation. In this respect, I would argue in favour of identical definitions worldwide.

If this is achieved, I will be satisfied; if it is not, we in Europe will become isolated, to the detriment of our economy and employment.

  Eva Lichtenberger, on behalf of the Verts/ALE Group. – (DE) Mr President, ladies and gentlemen, it is true that the mass importation of counterfeit products does a great deal of damage to the European economy, particularly to the production of quality goods, and I am indeed in favour of doing something to address this. What is needed most of all is that it should be made possible for the big criminal organisations to which reference was made earlier to be better punished or brought to justice by means of European law. On that much we all agree; it is on how this is to be accomplished that we have our differences.

I would like to extend warm thanks to Mr Zingaretti for having worked very hard to bring about agreement, but we all need to bring particular precision to bear on this question, not least because we are standing, legally speaking, on really thin ice. Further progress on this point was achieved by drawing on an environmental protection provision in criminal law, but that means that we bear a responsibility for approaching the matter with particular care and precision. The idea behind European law is that through it we should deal with matters that the Member States cannot accomplish on their own, particularly in relation to criminal law, which means in this case the handling of the big criminal organisations. For that we need a precise definition of what the scope of this regulation is.

If we leave it open – which is what some of us want – or if we include the consumers in it, we will end up taking a sledgehammer to crack a nut without being able to have any real impact on the big organisations that are doing European businesses so much serious damage, for the fact is that, in the absence of any precise definition, small-time entrepreneurs – who often do not know whose goods they are selling or from whence those goods come – can end up being clobbered by criminal sanctions.

It will be young people who are most affected by this. Most young people in Europe cannot tell the difference between what may be downloaded from the Internet and what may not, and we certainly do not want to criminalise the end users. We want to concentrate on those things that European law is meant to address, with everything else being left to national law.

To Mr Manders, who wants to raise consumers’ awareness, I should like to say that, if you get your hands on a Gucci bag for ten euros, any consumer might realise what is going on, but that does not apply in the case of many other products. I do not want European law to be over-zealously applied where it does not make sense to apply it at all; particularly in the commercial sphere, the areas of application must …

(The President cut off the speaker)

  Umberto Guidoni, on behalf of the GUE/NGL Group. – (IT) Mr President, ladies and gentlemen, I too should like to start by thanking the rapporteur, Mr Zingaretti, for his cooperation and for somehow having tried to mediate on this directive, which applies criminal law to counterfeiting. What it lacks, however, is a frame of reference consisting of the rules defining what counterfeiting is, and so it actually lumps together trademark, patent and copyright infringements.

Confusing counterfeiting and piracy with infringements of intellectual property is likely to make the fight against criminal falsification less effective. Instead, it would have been more useful to limit the scope of the directive just to copyright infringements concerning the commercial production of counterfeit multimedia products, an area in which organised crime operates.

Extending it unduly to all copyright issues, however, may have a serious impact on the privacy of consumers of multimedia products. Moreover, on copyright matters the directive abandons the concept of commercial scale and is liable to criminalise private, not-for-profit use by people who use the Internet for peer-to-peer file sharing, video streaming and so forth.

The directive forces Member States to start criminal proceedings even without a complaint by the injured party and actually gives private individuals a direct role in the investigations, which goes beyond providing the authorities with technical support and ends up becoming a driving, guiding role. Lastly, the directive lacks any economic or social analysis. Imposing tougher penalties in Italy has not had any effect. That is why our group proposes that this directive be rejected.

  Jim Allister (NI). – Mr President, I speak to record my opposition to the EU's meddling in the criminal law of Member States to the monstrous extent of demanding new offences and dictating the level of penalties to be enforced in the United Kingdom and other states. The nefarious Court of Justice decision of September 2005 gives rise to this intolerable infringement of national sovereignty. Now we are seeing a programme of rampant expansionism of power by the Commission.

This directive is even more objectionable from the UK perspective because, for the first time, it would make breach of patent a criminal offence punishable by four years’ imprisonment or more; not because the elected House of Commons thinks that it is necessary or wise but because the unelected EU Commission dictates it. I object, I reject this intolerable EU interference and I therefore reject this directive.

  Jacques Toubon (PPE-DE). – (FR) Mr President, we all want to make progress and successfully clamp down on counterfeiting, which is economically, socially and culturally unacceptable, and Mr Zingaretti has worked hard to come up with this compromise proposal.

However, I am struck, in this debate, by the great confusion among those who, in defending consumers, scorn the rights of creators and performers and those who, at the same time, defend Community competence and want the national judiciaries to remain sovereign entities. I believe that there are some real problems there that deserve to be looked at in more depth.

I have clear ideas about one point, anyway, and that is the cultural impact of this text. I am referring to the amendments to Articles 2 and 3 that were adopted by the Committee on Legal Affairs. They propose definitions of intellectual property rights. That is not the aim of the directive. They propose a restrictive wording of intentional infringement and commercial scale. This goes against the discretion of the national courts and, above all, in fact, it falls short of making peer-to-peer file sharing a criminal act.

The result is that the provisions, on the one hand, go against the acquis communautaire, particularly the 2001 Directive on copyright, and, on the other hand, present a considerable risk for creation and cultural diversity, by undermining the national laws that curb such behaviour, prejudicing as it does the rights of authors and performers.

That is why, in this instance, I support the wording of the original proposal by the Commission and, in any case, in our debate, Amendment 30 tabled by Mrs Bowles. We are on very serious ground as far as cultural diversity is concerned.

  Lidia Joanna Geringer de Oedenberg (PSE). – (PL) Mr President, the directive on criminal measures to be applied in order to protect intellectual property represents a change to the Commission’s stance to date on criminal law.

The proposed document reflects the interpretation of the European Court of Justice’s ruling of 12 September 2005 adopted by the European Commission, and allowing the use of criminal measures at Community level, if they are necessary for the successful implementation of Union provisions. In view of the increasing problem of infringement of intellectual property rights the world over, the Commission’s proposed approach seems not only appropriate but also necessary. Every year, the European Union’s GDP loses approximately EUR 8 billion because of counterfeit goods. Individual companies lose approximately EUR 45 to 65 billion each year for the same reason. The scale of the problem is so great that it is estimated that about 40% of computer software in the world originates from illegal sources, along with 36% of the music on compact discs and cassettes.

Accordingly, we should welcome the fact that the maximum penalty for serious crimes committed as part of criminal organisations may be as high as EUR 300 000 and/or a 4-year custodial sentence. It should be noted, however, that pursuant to Parliament’s proposal criminal measures will only be applied to individuals and entities who knowingly infringe the law for commercial purposes. The exclusion whereby the directive does not apply to infringement of the aforementioned intellectual property rights by private users who are not motivated by commercial gain is very important. In addition, it seems justified to exclude patent rights from the scope of the proposed directive, as this will make it possible to avoid determining the content of future provisions in this regard and will restrict the scope of the directive in question to intellectual property only.

As I conclude, I should like to thank Mr Zingaretti, the rapporteur, for a very well-prepared document.

IN THE CHAIR: MR COCILOVO
Vice-President

  Sharon Bowles (ALDE). – Mr President, I understand the purpose of this directive and the message that you wish to send out to other countries. However, extension of criminality beyond that envisaged in TRIPS, that is significantly beyond counterfeiting and piracy, is a step too far, at least at this stage, and not one that any speaker has justified.

Many colleagues appreciate that infringement of a patent that has been assessed as invalid is a normal commercial activity. However, this is not unique to patents: it applies to designs and trademarks as well. I say this as someone who accumulated over 25 years as a patent and trademark attorney before becoming an MEP.

There are amendments that attempt to address this problem. My own Amendment 31 restricts the scope to the TRIPS criteria – counterfeiting and piracy – or to when there is organised crime or a risk to health and safety. Amendment 33 takes account of assessment of invalidity. I can tell Mr Toubon that there will be separate votes on the individual parts of Amendment 30, which is there for a purpose other than the one for which it perhaps appears to be there.

To the Commission, I say that this is an issue that is too serious to get wrong. I am afraid it is too serious to settle with ‘there or thereabouts’ compromises. Therefore, I cannot vote for the proposal without the restrictions I have mentioned.

  Carl Schlyter (Verts/ALE). – (SV) Mr President, there is a parallel proposal concerning serious environmental crimes – clearly defined crimes that do serious harm to people and cause death. In spite of the clear objective, the proposal is controversial because the EU is entering the area of criminal law. What we have here is a legislative proposal aimed at protecting commercial interests without risk to consumers and the environment. In spite of that, this definition is much broader and creates legal uncertainty. In its present form, the proposal is not about combating organised crime. On the contrary, this law is in itself organised crime. It is a crime against human freedoms and human rights and an attack on ordinary communication between consumers and companies.

Take the example of Betamax. MP3 players can now be used for copying. Is it, then, necessary to prove, before they go on sale, that MP3 players cannot be used to break the law? Once the players are sold, will consumers be hit by technical restrictions and technical obstacles when they want to use the products, music and films they have bought? The proposal is an absurd attack on consumers’ rights and should be rejected in its entirety.

  Daniel Strož (GUE/NGL). – (CS) Mr President, ladies and gentlemen, I am among those MEPs who fundamentally disagree with the report on the proposed directive concerning the use of criminal measures to enforce intellectual property rights.

I have three fundamental objections. The first is the fact that the legal basis of this directive has not been clearly defined. As everybody knows, we are still missing the long-awaited opinion of the Court of Justice, which should clarify the judgment of 13 September 2005.

The second serious problem concerns the fact that in its definition of intellectual property for the purposes of the directive, the report does not include patents and types, which are an essential component of intellectual property law, and without which the directive would not incorporate the systematic approach that is required for this issue.

The third reason is closely linked to the previous one. The criminal justice aspects of the directive ought to complement existing Directive 2004/48/EC on the enforcement of intellectual property rights, which deals with civil liability and administrative matters, and which applies to the entire body of intellectual property law, including patents and types. There is room for wide-ranging discussion on the factors that led to the proposal to exclude technical solutions from criminal protection. I fear, however, that pressure from influential interest groups unfortunately played a part in this. Thank you for your attention.

  Tadeusz Zwiefka (PPE-DE). – (PL) Mr President, despite what has been said by other Members in this House, the proposed directive came about as a response to the increasingly widespread theft of intellectual property. We know full well that current Union legislation does not provide for a Community policy on penalties to combat piracy and counterfeiting of goods. In addition, there are considerable differences between the systems applied by the various Member States, as the Commission has rightly pointed out. This obviously hinders effective protection of intellectual property, which in turn has a direct negative effect on the value of investment in innovation.

I firmly believe that it is essential to counter these practices at the Community level. If we also take into account that the counterfeiting of completely new products such as medicines or toys can be dangerous to life and health, the problem becomes even graver. Clearly, counterfeiting products of all kinds also involves producing packaging and employing a range of individuals such as graphic artists and distributors. There is too much for a single person to handle. Well-organised criminal gangs are involved, and it is precisely their activity that the directive aims to hit hard.

The measures proposed in the proposed directive should be deemed beneficial. Infringement of intellectual property rights is a crime that must be punished. There is, however, scope for argument about the limits of responsibility, and especially about who is to be held responsible. Those who produce counterfeit goods and place them on the market must certainly be punished. On the other hand, it would be unacceptable to punish those who purchased or used goods or services unaware of their illegal origin. The Commission’s proposal does not define deliberate action in the context of infringement of intellectual property rights sufficiently clearly, and that should be remedied.

To summarise, adoption of the text of this directive is essential, and we must only regret that we are not in a position today to take the next vital step forward. After all, it is possible to identify groups of crimes that it is particularly difficult to combat in today’s globalised world, on the basis of dozens of different legal systems. I believe that greater harmonisation of criminal law in the European Union would go a long way towards improving effectiveness, as today’s debate confirms.

  Edith Mastenbroek (PSE). – Mr President, it is 2007, so you can address me as ‘Miss’!

I would also like to congratulate my colleague Mr Zingaretti, although he knows that we agree to disagree on this issue. The legal base of the proposal derives from the Court of Justice. The Commission interprets this ruling to be applicable beyond the case, and sees this ruling as a legal base for the harmonisation of certain criminal sanctions in measures aimed at protecting the internal market.

The reason I consider rejection of this directive as a whole is not because I do not believe in expanding the powers of the EU to include criminal sanctions. I do believe in that. However, I have serious doubts about the process leading to this increase of power, because a legal base is not the same as a political mandate. Fundamental steps like this demand a thorough political debate and a clear choice on the matter in question. Instead, we are about to take a great leap forward as a by-product of a single policy measure in a highly specialised and limited field. I do not think this is the best way of pushing integration forward. It also enforces the popular opinion held by many who see the European Union as an organisation which caters mainly for the interests of big businesses, which is not the case.

  Ignasi Guardans Cambó (ALDE). – (ES) Commissioner, we should not play around with criminal law. The Union can now exercise – and it is right that it should exercise – a new power that has been recognised by the Court of Justice: to take on the criminal dimension of competences that it has the right to exercise. I believe that that makes complete sense and we should all support it.

But it must be done prudently, wisely and with legal skill. And the text that we are discussing here has none of those three qualities. It lacks prudence, it lacks wisdom and it lacks legal quality. I say that with the greatest of respect for all of those who have been directly involved in drawing it up.

There is very little of it in this report. The scope is excessive. In an area as crucial as criminal law, the scope is entirely confused. Notions of scopes are used that are not harmonised in the European Union.

Combating piracy, yes, of course, and under criminal law. In that regard, we can support it. Combating piracy in the criminal field. To extend that to issues that have never been outside of the civil field in the Member States, however, makes no sense, especially when concepts are not harmonised and words do not mean the same thing, not even in the field of piracy. It makes no sense to send out the message that the citizen is the criminal even when they are not acting for commercial purposes and their activities are not of any scale.

We must press forward, otherwise we will be guilty of fine words but no actions, Commissioner.

  Maria Badia i Cutchet (PSE). – (ES) Following a long process, the European Parliament will finally approve its position on the adoption of criminal measures intended to ensure the enforcement of intellectual property rights, measures that I believe to be entirely necessary.

I would like to make a few comments from a cultural perspective.

With a view to promoting the development of knowledge in general and of culture in particular, we must recognise the dual economic and cultural value of creativity as a motor for the development of the arts, of science, of cultural diversity and of research.

Furthermore, in this era of increasing digitalisation and commercial liberalisation – of cultural goods and services as well – it is important to achieve an appropriate and fair balance between the rights of authors and the rights of users or consumers with a view to ensuring effective access to this progress in the field of culture and knowledge, at the same time combating piracy and counterfeiting within a context of greater Community harmonisation.

In this regard, I would like to congratulate the rapporteur on his work, particularly on the compromise reached on excluding violations for personal and non-profit-making reasons, since they do not deserve to be treated in the same way as a deliberate infringement of an intellectual property right committed on a commercial scale, which I do believe should be punishable in the appropriate manner.

  Günter Verheugen, Vice-President of the Commission. (DE) Mr President, honourable Members, I am grateful to you for the many valuable and important comments and suggestions made in this debate, and I would like to say something about a few of them.

The Commission’s view on the limitation of the directive’s scope solely to matters over which the Community has power is that this is essential if cases are to be covered both by Community law and by the laws of the Member States, for, if that were not to happen, the transposition of the directive could well meet with considerable difficulties in this area in which Community and domestic law are closely enmeshed, and the danger might arise of the public not knowing which law actually applied, thus compromising the rule of law.

The Commission takes the view that all types of intellectual property rights merit the protection of the criminal law, and so it is in favour of patents being included, without, however, any intention that this should present any political obstacle to the transposition of the directive. While the Commission can accept the removal of patents from the scope of the directive, it does reject any amendment along the lines of Amendment 1 that might revive the debate about Community power over criminal law measures relating to patents.

With the exception of that of legal personality, the Commission has dispensed with definitions on the grounds of their superfluity or of their potential for legal uncertainty, and therefore prefers to give the Member States a free hand, allowing them to take decisions in accordance with their own laws and in the light of the measures they have already taken.

  President. The debate is closed.

The vote will take place on Wednesday at 12 noon.

Written statements (Rule 142)

  Tokia Saïfi (PPE-DE). – (FR) Faced with the increase in piracy and counterfeiting, it is essential that we work effectively to ensure that intellectual property rights are complied with. Such protection must be accompanied by sanctions, because counterfeiting is unacceptable as much from an economic as from a social or cultural point of view.

Thus, by introducing criminal sanctions for all intentional infringements of an intellectual property right committed on a commercial scale, the European Commission proposal is in line with the recommendations voted for in 2005 on the future of the textile and clothing sector after 2005.

We can only pay tribute to the desire shown to fight to enforce intellectual property rights, which safeguard the competitiveness of our economies and the growth of industry and which drive the creative world.

Nevertheless, by proposing definitions of intellectual property rights, and by introducing a restrictive definition of ‘commercial scale’ and ‘intentional infringement’, the European Parliament’s Committee on Legal Affairs is undermining the principle of subsidiarity in criminal matters and is challenging the acquis communautaire on this matter. The act of strengthening intellectual property rights within the European Union must preserve the national courts’ freedom to interpret the two aforementioned elements.

We should therefore support the wording proposed by the European Commission.

  Katalin Lévai (PSE). – (HU) The protection of intellectual property rights is a pre-eminent goal, especially since this sector contributes 5-7% of Europe’s GDP.

Counterfeiting, piracy and infringements of intellectual property in general are part of an increasing phenomenon today, one that has taken on an international dimension and represents a serious threat to states and to national economies. Differences between the various penal systems of different countries render the struggle against counterfeiting and piracy more difficult. Beyond the latter’s economic and social consequences, counterfeiting and piracy also cause problems with regard to consumer protection, especially where health and safety are concerned.

The growth in the use of the Internet makes it possible to see the immediate and global spread of pirated products. Finally, this phenomenon is increasingly linked to organised crime.

The struggle against these violations is therefore of key importance for the Community. There does indeed seem, therefore, to be grounds for a joint response at European level in the area of criminal law, so that perpetrators should not be able to take advantage of differences among the different national legal systems.

Generally and fundamentally I agree that the fight against the ever increasing and ever more serious acts in violation of intellectual property should make use of the instruments of criminal law.

I also agree that a possible harmonisation of these criminal law instruments, which are to be used as a last resort, is an especially important application of the principle of subsidiarity.

I consider it absolutely essential, however, that harmonisation at Community level of the criminal measures which may be used as a very last resort should be underpinned by thorough impact studies carried out by the Commission.