Dear Sirs, On behalf of AIM, the European Brands Association, I would like to thank you for your offer to participate in the public consultation on the future priorities of JAI policy. Through our National Associations in 20 European countries and close to 50 corporate members, AIM represents some 1800 manufacturers of branded goods, mainly in the FMCG sector. However given the explosion of counterfeit and pirate activity we have long believed it to be imperative that all affected sectors collaborate against this menace. Therefore we have, for over 20 years, co-ordinated the AIM Anti-Counterfeiting Committee which brings together our members with representatives from (inter alia) the toys, pharmaceutical, film, video, music, textiles, mechanical copyright and luxury goods sectors as well as a number of national anti-counterfeiting groups. We have read with interest your questionnaire for this consultation. While we would not be able to provide pertinent input to the questions as posed, we would like to draw to your attention the integration of IPR crime - that is, counterfeiting and piracy - with many other organised criminal activities. Counterfeiting has repeatedly been shown to be a preferred method for financing other criminal activity; indeed DG TAXUD of the Commission has dubbed it "the crime of the 21st century". In 2003, the Secretary General of Interpol testified before the US Congress that "the link between organised crime groups and counterfeit goods is well established". He went on to declare that "IP Crime is becoming the preferred method of funding for a number of terrorist groups. There are enough examples now of funding of terrorist groups in this way for us to worry about the threat to public safety". It is important therefore that such illegal activity is not regarded in isolation or as a "private" matter. The socio-economic effects of counterfeiting can be devastating to consumers, businesses (especially SMEs) and economies alike. Put simply, crime is crime. Theft and/or fraud of IPRs should not be downgraded to either low-profile crime or inconsequential white-collar civil tort. Profits from this crime often go to service other illicit activity, including drugs and terrorism, and it is of course effected by illegal workers. Integration of this vastly influential sector in your work programme must therefore be a priority. Directive 2004/48 on the Enforcement of Intellectual Property Rights specifically notes in recital 28: "In addition to the civil and administrative measures, procedures and remedies provided for under this Directive, criminal sanctions also constitute, in appropriate cases, a means of ensuring the enforcement of intellectual property rights". The following statement of the Commission was also sent to the Council when this Directive was to be agreed: "The Commission considers that effective action against counterfeit and piracy requires criminal sanctions for serious infringements which are intentional and committed for commercial purposes. It also considers, in line with Article 20 of its original proposal that where necessary to achieve a Community objective, such measures may be adopted under the powers conferred for the purposes of achieving the aims set out in Article 95 of the Treaty establishing the European Community. Consequently, the Commission will examine the possibility to propose in due course further measures providing for criminal sanctions in this field".
While the abject lack of judicial harmonisation and appreciation for IPR crime remains within the EU, counterfeiting will remain an attractive business model for criminals given its relative lack of risk. One need only think of the example cited by DG TAXUD - that there is frequently more profit weight for weight in fake CDs than in soft drugs - to realise this. Effective, deterrent and proportionate criminal sanctions for counterfeiting are essential as is harmonisation of national laws to the highest common denominator and training and awareness of law enforcement authorities, including the judiciary.
We therefore call upon DG JAI to recognise the importance of counterfeiting and piracy and to fully integrate them into criminal policy. We also look forward to seeing shortly the promised draft Framework Decision on counterfeiting and organised crime from your services. It is essential that we
complement the Enforcement Directive and the new Customs Regulation with an effective coherent criminal policy in this field.
We hope that the above has been of use to you. Please do not hesitate to contact us if you require any clarification or further information concerning the above. Yours sincerely Marie Pattullo
Marie Pattullo Legal Affairs Manager AIM - European Brands Association Tel: (+32) (0) 2 736 0305 Fax: (+32) (0) 2 734 6702 marie.pattullo@aim.be