Implementation of EU IP Enforcement Directive delayed… again

The Swedish implementation of the EU IP Enforcement Directive (2004/48/EC), which harmonises enforcement standards for IP infringement across Europe, is severely delayed. The original implementation deadline was 29th April 2006 and the government’s failure to implement on time recently caused the European Court of Justice (ECJ) to find Sweden guilty of breaching its treaty obligations (Case C-341/07). Sweden also failed to meet the new deadline of 1st July 2008 and implementation is now scheduled for 1st January 2009.

The directive and Swedish law
Although most of the minimum enforcement standards set out in the directive are already met by existing laws, a few features require the legislature’s attention. The issue that has apparently caused the delay is the right for IP rights holders to obtain information regarding the origin and distribution networks of infringing goods (Article 8). The Swedish government has explained that it needed to await the ECJ’s decision in the Promusicae Case (Case 275/06), which considered whether the provision is an absolute requirement imposed on member states.

The ECJ rendered its decision in the Promusicae Case in January 2008, finding that Article 8 does not require member states to lay down an obligation to communicate personal data in order to ensure the effective protection of intellectual property in the context of civil proceedings. However, the ECJ declared that Community law does require that, when transposing the directive, the authorities and courts of the member states must not only interpret national law in a manner consistent with the directive, but also ensure that they do not rely on an interpretation which would conflict with fundamental rights or with other general principles of Community law, such as the principle of proportionality.

Sweden has also claimed that Article 8 of the directive is hard to interpret and hence difficult to implement; however, according to ECJ case law these are not valid excuses for failing to implement a directive in due time.

Other required amendments include: 

• amendments to the provisions on civil search orders to facilitate the protection of confidential information and to enable orders to be granted in respect of anticipated IP infringements; and 
• a new power for the courts to order the recall of infringing goods and the publication of judicial decisions and corrective notices.

Next steps
The Swedish government is planning to publish its bill on the required amendments in September 2008 and to implement the directive on 1st January 2009.