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Art 3

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

2005/0127 (COD)

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.