Scope:

Evaluation of Directive 2004/48/EC on the enforcement of intellectual property rights (IPRED)

Evaluation findings:

The evaluation has shown that the tools provided for by the Directive have effectively helped to better protect IPR and have enabled a more effective handling of IP infringements in civil courts. The Directive has led to a common legal framework, where the same set of tools is to be applied across Europe. In this respect, it has achieved the objective of approximating the legislative systems of the Member States for the civil enforcement of IPR. In doing so, it has ensured a high, equivalent and uniform level of protection in the internal market overall.

The Directive was also considered to have been a cost-efficient intervention, preventing unnecessary administrative burden and implementation costs for stakeholders and Member States. It has helped to bring about more harmonisation across the EU and provides stakeholders with a common set of tools for litigating against IPR infringements.

The Directive remains a relevant instrument for facilitating enforcement of different IPRs in the digital era and appears to be coherent with other EU instruments such as voluntary stakeholder initiatives that can act as a powerful complement to judicial enforcement measures. Its EU added value is that it establishes a common set of tools for IP enforcement across the EU which would have been difficult to achieve without the Directive.

The evaluation, however, revealed, that there are differences in the way Member States apply certain provisions of the Directive (such as those on injunctions, damages and legal costs) across the Single Market, thereby limiting the effectiveness of the Directive. This is due to uncertainties and diverging views as to how those provisions should be understood, in particular given the challenges of the digital revolution and cross-border context. Furthermore, the Directive's consistent application is limited by differences in the national civil law procedural frameworks and differences in legal and judicial traditions.

The evaluation showed, in particular, that, while the text of the Directive is still fit for purpose, there is a need to offer further clarification on the exact scope of the Directive, the requirement to ensure that proceedings are inter alia ‘fair and equitable’ and strike a fair balance between the fundamental rights of the parties concerned, the presentation and preservation of evidence (including digital evidence), the right of information, the scope of injunctions and corrective measures, and the calculation of damages and legal costs which are particularly important to small- and medium-sized enterprises (SMEs).

While the evaluation included an analysis of national judicial practices, such analysis is significantly hampered by a lack of transparency of national judgments on IPR enforcement. Specifically dedicated websites allowing public access to IP-related case law only exist in a few Member States. Such lack of transparency substantially hinders the development of one judicial area in Europe. The evaluation further showed that many stakeholders consider that the objective of the Directive is achieved thanks in no small part to the existence of national judicial authorities specialised in IPR enforcement matters. There was overwhelming support among the stakeholders for such specialised courts, which they saw as a key factor for efficient and effective IPR enforcement in general.

Estimated savings and benefits:

The evaluation concluded that the Directive has not imposed any incremental direct costs on the applicant compared to the period before the date of transposition of the Directive, either in terms of administrative costs or substantive compliance costs. Benefits were found to outweigh the costs.