Article 35

Introduction

European Parliament Rules of Procedure 35 is of particular interest as it is for formal verification of legal base.

Rule 35 : Verification of legal basis

1. For all Commission proposals and other documents of a legislative nature, the committee responsible shall first verify the legal basis.

2. If the committee responsible disputes the validity or the appropriateness of the legal basis, including in the context of the verification pursuant to Article 5 of the EC Treaty, it shall request the opinion of the committee responsible for legal affairs.

3. The committee responsible for legal affairs may also on its own initiative take up questions concerning the legal basis of the proposals submitted by the Commission. In such cases it shall duly inform the committee responsible.

4. If the committee responsible for legal affairs decides to dispute the validity or the appropriateness of the legal basis, it shall report its conclusions to Parliament. Parliament shall vote on this prior to voting on the substance of the proposal.

5. Amendments tabled in Parliament to change the legal basis of a Commission proposal without the committee responsible or the committee responsible for legal affairs having disputed the validity or appropriateness of the legal basis shall be inadmissible.

6. If the Commission does not agree to modify its proposal to conform to the legal basis approved by Parliament, the rapporteur or the chairman of the committee responsible for legal affairs or of the committee responsible may propose that the vote on the substance of the proposal be postponed to a subsequent sitting.

Current situation

Other business

See also RoP 34 Rule 34 : Examination of respect for fundamental rights, the principles of subsidiarity and proportionality, the rule of law, and financial implications

During the examination of a legislative proposal, Parliament shall pay particular attention to respect for fundamental rights and in particular that the legislative act is in conformity with the European Union Charter of Fundamental Rights, the principles of subsidiarity and proportionality and the rule of law. In addition, where a proposal has financial implications, Parliament shall establish whether sufficient financial resources are provided.

Art 35 and IPRED2

Dutch Parliament

* Dutch Parliament letter to Europarliament President Borell, apparently the Europarl President did not ask the Committee an Art 35 question and the report of rapporteur Zingaretti takes not notice of this official communication. Did Borell hide the information?

Guidoni/Holm Tabled JURI Amendment

Agrees with the Dutch Parliament, which believes that there is no clear need for a directive of this kind and that the Commission is wrongly interpreting the judgment of the Court of Justice of the European Communities in Case C-176/03 Commission v Council1, by seeking to extend its sphere of legislative intervention into an area in respect of which it has no competence;

Council presidency to CATS 11856/06 on IPRED2

At the informal JHA meeting in Vienna on 13 and 14 January 2006, the Ministers of Justice of the Member States held an exchange of views on the Commission’s Communication. The JHA Council of 22 February 2006 took note of the results of the informal meeting in document 6466/06 JAI 62, Procedural consequences of the judgment of the Court of Justice in case C-176/03. The following principles, DELETED, were accepted in general by the JHA Council as the basis for considering the impact of the Court’s case-law on other Community policies:

* As a general rule, criminal law as well as the rules of criminal procedure fall outside the Community’s competence.

* The Community must therefore interpret and apply any exception to this general rule in a narrow sense. The Community legislator is entitled to take those legislative measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down are fully effective. This implies that the Community legislator cannot oblige Member States to provide for criminal penalties for violations of rules whi the Community legislator has not, or not yet, established or which have been established pursuant to national law only.

* The Community legislator must leave to the Member States the choice of the criminal penalties to apply, as long as they are effective, proportionate and dissuasive. Consequently, Community acts cannot determine in detail and exclusively the level of penalties to be introduced. This should be left to the discretion of the Member States.

The Commission has justified its proposal on the basis of research which shows that there are considerable differences regarding criminal penalties in the legislation of the Member States. In the view of the Commission, such disparities between the national systems of penalties hamper effective action against counterfeiting and piracy. However, some delegations have raised concerns with respect to the need for further criminal measures against the violation of intellectual property rights. While acknowledging the phenomenon of cross-border and organised counterfeiting and piracy, many delegations have expressed doubts as to whether or not the harmonisation of criminal sanctions at the European level would be effective in eradicating such crime. In consequence, there have been doubts whether there is need for criminal measures taken by the Community and whether such measures would be in accordance with the principle of subsidiarity as set out in Article 5 TEC.

FFII position (general)

The Dutch Parliament and others have made clear the legal means to combat piracy are already available. 1. The Commission only gives examples of trademark counterfeiting and copyright piracy. Article 61 TRIPS already contains relatively wide-reaching provisions against trademark counterfeiting and copyright piracy which are binding on the Member States and the EU.

2. The member states have further criminal provisions against IPR infringements.

3. The Commission does not submit that in the event of a major difference in penalties pirates or counterfeiters could operate from the country with the lowest maximum sentences and that this would seriously hinder effective protection of intellectual property. It is well documented that if criminals choose to operate in a particular country, this decision will be based on the chance of being caught. The Community cannot influence prosecution priorities.

4. An offence committed in a Member State with lower penalties and / or chance to get caught will soon be prosecutable in other Member States, namely where the counterfeit goods end up in normal circulation in the other Member State.

5. In many countries the IP criminal law - although well-developed - only plays a subordinate role in actual practice. It has not been established that effective measures to combat piracy necessitate expansion of the existing range of measures and sanctions under procedural law. The establishment of priorities and the exchange of knowledge are of greater importance.

6. The previous IPR Enforcement Directive (2004/48 of 29 April 2004) allows for making the losing party to pay for the costs of the trial. These costs can be considered as punitive damages and therefore that directive already enables sanctions to some extent.

7. The effects of that previous directive are not yet know however, since it only had to be implemented by 29 April 2006. They have to be evaluated before the need for extra criminal sanctions can be properly assessed.

8. Only a thorough investigation as to the legal and factual conditions could show more criminal measures are needed. Apart from very general remarks regarding its competence, nothing in the explanatory memorandum to the proposal indicates that such an investigation was undertaken by the Commission, and, if so, what specific results it produced.

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