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Temporary Retention on Goods in Transit and in Customs Warehousing within the EU

On 1 December 2011, the European Court of Justice (ECJ) issued ruled to clarify a number of aspects of application of its “anti-piracy” regulation (EC) 3295/2004, with regard to infringement of intellectual property rights over goods originating in third states in exernal transit under customs warehousing procedures in EU territory.

The ECJ reiterated that goods from third states that incorporate distinctive signs, designs, models or patents protected in the EU cannot be considered “pirate goods” merely because they have been brought into the customs territory of the Community, but that said goods must also be destined for marketing within the EU market.

The need to prove fraudulent deviation of said goods to consumers in the European Union motivated the ECJ to reject application of the so-called “manufacturing fiction” and therefore considering that intellectual property rights existing in the EU had been infringed by deeming that the goods had been manufactured in a member state where they were retained, notwithstanding the fact that it had evidence that the goods had been manufactured in a third state.

However, the ECJ clarified that to allow the existence of an intention to deviate the marketing of the infringing goods to the Community market, it is not necessary to have evident proof and a mere suggestion will suffice.

The ECJ identifies different signs which may identify intent to deviate marketing of goods in a customs suspensive procedure:

When the exact destination of the goods retained cannot be specified and there is no specific information about their manufacturer or issuer and a lack of reliable information about the identity of said merchandise.
When there is obvious lack of cooperation with the customs authorities on the part of those responsible for the goods.
When relevant documents are discovered that correspond to the goods and which insinuate that there will be a possible deviation of said goods to consumers in the EU.

In this ruling, the ECJ also reiterates the effectiveness of the anti-piracy regulation and adds that if the counterfeit goods are considered “hazardous goods” that directly endanger the health and safety of consumers, their immediate retention is authorised, with no requirement for their destination to be in European Union territory or for them to be destined for a third State.

We therefore can conclude that this ECJ ruling sets out guidelines that should be observed in the fight against entry into Community territory of goods susceptible to infringing intellectual property rights and even to prevent said merchandise continuing its transit to third states, protecting both European and non-European consumers from all risk.

Carmen Sánchez-Puelles