Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights
Elements of a crime
The Max Planck Institute proposed a better definition of the crime:
"15. Indeed, when proper account is taken of the proportionality principle (see above, 6), harmonisation of criminal penalties can only be justified in relation to acts fulfilling the following elements cumulatively:
– Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
– Commercial activity with an intention to earn a profit.
– Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right."
The above mentioned elements of a crime are the minimal elements. The Commission proposal does not meet these minimal elements. They could be defined more strongly.