"Procedural questions could kill a proposed European Union directive aimed at fighting theft of products, patents and copyrights, after the Dutch Parliament raised jurisdictional concerns last week.
At issue is the planned EU directive on criminal measures aimed at ensuring the enforcement of intellectual property rights [COM(2006) 168 final]. The directive has provoked concerns among digital civil rights advocates, and now has hit a procedural snag.
The Dutch parliament last week wrote to Franco Frattini, EU Commissioner for Freedom, Security and Justice, that both the Senate and House of Representatives 'consider that the present proposal falls outside the powers of the community' and 'does not comply with the principle of subsidiarity and proportionality.' Subsidiarity is a fundamental principle of EU law asking that the EU acts only if actions of individual member states are insufficient.
'Both houses would appreciate receiving a reasoned response from the European Commission to the objections formulated by them in this letter,' wrote Senate President Yvonne Timmerman-Buck and the president of the House of Representatives, Frans Weisglas. [...]
A spokesperson from Frattini's cabinet told Intellectual Property Watch that 'there is a competence to introduce criminal sanctions in a directive according to a recent ruling of the European Court of Justice on environmental law.' Although, as a general rule, neither criminal law nor rules of criminal law fall within the Community's competence, that does not prevent Community legislature from taking measures that relate to criminal law if it is essential for combating serious environmental offences, the Commission wrote after this ruling. But the court also ruled that the respective criminal law measures had to be effective, proportionate and 'dissuasive.' [...]
Hester Meninga, spokesperson from the European Office of the Dutch Senate, said, 'The proposal is out of reach if you look at the goals that need to be realised: harmonisation of criminal law measures on the EU level is not as vital and essential nor advisable and wishful as presented by the European Commission in [its] proposal.'
Meninga listed three major points that resulted in this conclusion: First, it had not been established in the proposal 'that effective measures to combat piracy demand the expansion of the existing range of measures and sanctions under procedural law.' Second, there was 'no factual justification in the proposal of the European Commission that in the event of a major difference in penalties between the member states, the pirates or counterfeiters could operate from the country with the lowest maximum sentences and that this would seriously hinder effective protection of intellectual property.'
The third point was that the implementation of IPRED 1 was just considered by the House of Representatives of the States-General and provisions were made to include separate procedural provisions for intellectual property cases in the Code of Civil Procedure. [...]"
This dispute appears to be related to EU Council Document 15444/1/05 conveying Document COM(2005) 583 final/2 of the EU Commission saying:
"[...] The judgment of 13 September 2005 in Case C-176/03 Commission v Council clarifies the distribution of powers between the first and third pillars as regards provisions of criminal law. This clarification removes any doubts about a question which has long been controversial. The Commission's aim with this Communication is to explain the conclusions to be drawn from it. A list of the instruments affected by the implications of the judgment is in the annex. One of the aims of this Communication is to suggest a method to correct the situation with regard to texts which were, in the light of the Court's ruling, not adopted on the proper legal basis. It also aims at setting the direction of the future use of the Commission's right of initiative.[...]"
And, more in detail:
"[...] The Court found that although 'as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community's competence', 'the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective'.[...]"
The full wording of the ECJ Decision on Case C-176/03 is available here. See also my earlier posting there.
wrote for 
there.