Jan 31st 2006 the European Parliament's JURI committee held a public hearing on "The Effective Protection of Intellectual Property: a Challenge for Europe"
http://wiki.ffii.org/JuriHearing060131En
Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law said:
"Issuing a directive on the basis of Art. 95 EC presupposes that it is essential for the realisation of the single market (Art. 14 EC), i.e. that without harmonisation a distortion in trade between Member States would occur. (...)
- Whether pirated goods are available within individual Member States is irrelevant from the point of view of European law. Relevant are only barriers to entry to national markets, for example, in the form of border controls, and direct or indirect discrimination. (...)
- Whether EU Member States have implemented Art. 61 TRIPS according to their ob-ligations (Art. 300(7) EC) and in an appropriate manner has – to our knowledge – never been examined. Only when this implementation has proven insufficient is a further harmonisation justifiable.
- The effects of Directive 2004/48 of 29 April 20046 are not yet known; it has to be implemented by 29 April 2006, and all manner of experience remains outstanding as to whether the harmonisation of civil law will prove insufficient."
On the Questions Concerning Elements of a Crime, he said:
"As a matter of fact, a harmonisation of IP criminal statutes can be justified from the point of view of the principles of subsidiarity and proportionality only in connection with actions by which the following elements of a crime are fulfilled cumulatively:
- - Identity of the exploited object of protection (the good takes on characteristic elements of a protected product or label in a targeted and unmodified fashion – construction, assembly, etc.) - Commercial activity with an intention to earn a profit - Potential to cause considerable damage - Intent or contingent intent (dolus eventualis)"
Note these are the minimal elements.