Building a “Fortress Europe” in the air: A critical review of the European customs enforcement of IPRs

Abstract

AbstractFor several decades now, the European Union (EU) has been promoting the strengthening of enforcement measures of intellectual property rights (IPRs). The reinforcement of border measures aimed at blocking the importation of infringing goods has been under particular scrutiny in this respect. Since the adoption of the Trade‐Related Aspects of Intellectual Property Rights agreement, the EU has adopted numerous customs regulations specifically designed to curtail the flow of counterfeits entering the European market. In this paper, we argue this regulatory inflation is problematic considering the ambiguous construction of European border measures against counterfeiting. We suggest that EU law has imperfectly transplanted the American customs regulation reformed in the 70s which has allowed customs authorities to seize imported goods which were infringing IPRs in the United States. To fulfill their new mission, American customs was granted with the ability to assess such infringement at the border. Although required to fulfill the same mission, European member states' customs authorities have not been granted with such a quasijudicial competence. As a result, the action of European customs authorities regarding infringing goods is based on an ambiguous “conditional prohibition” which can easily lead to abuses as the international dispute regarding in‐transit generic medicines has shown.