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    Free movement of goods – customs control – detention – protection of intellectual property rights – validity

    [EC Treaty Art.30 (now, after amendment, Art.28 EC), Art.36 (now, after amendment, Art.30 EC).]

    EAPA complained to the European Commission that the French customs authorities had retained at the frontier with Spain, spare parts for motor vehicles made in Spain and intended, following their transit through France, to be sold in another Member State where they were authorised to be marketed. The French customs authorities considered that the spare parts were counterfeit goods under French law which infringed registered design rights and copyright protected by French law. Therefore they detained the goods to enable the proprietors of the protected intellectual property rights to take steps to protect those rights. The Commission informed the French authorities that the detention of the spare parts under customs control might be an impediment to the free movement of goods under the EC Treaty Art.30 (now, after amendment, Art.28 EC) since the goods were not intended to be marketed in France, were lawfully produced in Spain and marketed in Italy. The Commission subsequently appealed to the ECJ for a declaration that France, by implementing procedures for the detention by its customs authorities of goods lawfully manufactured in a Member State which were intended, following their transit through France, to be placed on the market in another Member State where they might be lawfully marketed, had failed to fulfil its obligations under Art.30.

    Held, making the declaration sought, that (1) the court was bound to conclude that the detention of spare parts presumed to be counterfeit goods for a period of ten days, during which the applicant might refer the matter to the national courts, had the effect of restricting the free movement of goods since it delayed the movement of goods and might block their movement completely of the court rules that they were to be confiscated; (2) it was therefore necessary to examine whether the impediment to the free movement of goods caused by the procedure for detention under customs control might be justified by the need to ensure the protection of industrial and commercial property in EC Treaty Art.36 (now, after amendment, Art.30 EC); (3) Art.36 allowed derogations from the fundamental principle of the free movement of goods within the common market only to the extent to which such derogations were justified for the purpose of safeguarding rights which constituted the specific subject matter of such property; (4) since the manufacture and marketing of the product in this case were lawful in the Member States where those operations took place and transit did not form part of the subject matter of the design right in the Member State where the transit took place, it had to be concluded that the impediment to the free movement of goods, caused by the product’s detention under customs control in the latter Member State in order to prevent its transit, was not justified on grounds of the protection of industrial and commercial property, and (5) it should be possible for the investigation of the origin and destination of the goods in transit to be carried out on the spot if the transporter was in possession of the relevant documents or could obtain them immediately. In any event, detention for up to ten days was disproportionate in relation to the purpose of such an investigation and could not be justified under Art.36.

    COMMISSION OF THE EUROPEAN COMMUNITIES v. FRANCE (C23/99) [2001] E.C.D.R. 2, GC Rodriguez Iglesias (President), ECJ.

    “Current Law” April 2001