No Images? Click here European customs‘s various interpretation of articles 23-3 and 23-4 of the EU regulation 608/2013 about the possibility for a right owner to request a prorogation of time as part as a procedure of customs retention of products suspected to be counterfeit.> A stricter interpretation from the French customs Directorate to the detriment of right owners. In France it has been in practice accepted until now that the initial period of 10 days of customs detention of the goods could be extended for 10 more days maximum based on a duly motivated request by the right owner for objective reasons, namely mainly to proceed with the physical examination of a sample, which requires its sending to experts who can be located outside France (see our newsletter n°3), and this, to request the implementation of the so-called simplified destruction procedure or either to analyze additional photos, or finally to take legal action. According to a very recent note from the French Directorate General of Customs, the first two reasons are no longer admissible. This note states that the extension of the 10-day period is not intended to give to the rights owner or declarant/holder additional time to agree to the simplified destruction of the goods (this time includes the collection of the sample as well as the examination of the merchandise). This agreement shall be done within the 10 days delay, with no possible extension of time. The purpose of the extension of time is only to allow the right owner to introduce a legal action. This strict interpretation of the Articles 23-3 and 23-4 of the EU regulation 608/2013 relies on the following arguments: : the customs administration's mission is to police the movement of goods, and as part of this mission customs cannot restrain the flow of the exchange and consequently stop the goods without serious ground for a disproportioned period of time. This is the main justification of the 10 days delay stipulates in the EU regulation 608/2013. By doing so, the French customs directorate marks a break with the practice that has been in force since the implementation of the simplified destruction procedure and even before that. It is now incumbent on the rights owner to ensure that, as part of their EU customs application, to arrange the designation of technical contacts in France so that the products can be appraised as soon as possible, failing which and in case of uncertainty as the origin of the retained products, the examination of a sample within the imperative deadline of 10 days will be physically impossible and customs will have to pronounce the release of goods. Needless to say that for rights owners located abroad and for which the department in charge of the anti-counterfeiting fight is most of the time outside the European territory, it will not be easy to dedicate a technician in France who can be able to make occasional physical expertise of samples. One may wonder why this trade facilitation is now put forward by the customs authorities while this reason has in fact existed since the implementation of the first EU regulation on that subject in 1996. Should we not see in this new interpretation a wish to maintain market shares in the context of an unrestrained competition that European countries carry out in the purpose of the entry into Europe of merchandise? The restriction of the time dedicated to the customs‘s control should certainly not displease the carriers but it will be done to the detriment of the right owners and especially the consumers. We have made a round table with our European partners and you will find below a chart which exemplifies, once again, how much the enforcement of the EU regulation is different from one country to another. In the other European countries, the trend is also to strictly apply the EU regulation, with some exceptions : Austria One can always ask for deadline extension in advance; further, ten more days will be granted if the right owner do not answer within the first ten days. Belgium
It used to be no problem to get an extension in Belgium when the right owner did not answer in time, but that is not considered a valid reason anymore. Belgian Customs will grant an extension when a sample is required and therefore confirming the infringement within the first 10 working days will not be possible. And most of the time also when additional images are requested. Czech republic
Czech customs insist that in the first 10 days the right holder must say if the goods are infringing the intellectual property or not otherwise the goods are released. The 10 days extension is only for the right holder to prepare the civil complaint and file it. However customs do not reject a request for an extension justified by the fact that the right owner is in a foreign country or there is a wide distribution channel to inspect. Moreover samples are given easily. Denmark One cannot get an extension to confirm infringement, but only for negotiations with the consignee Germany German customs strictly apply the 10 days delay and handle a seizure under the new EU regulation 608/13 should be done in ten working days. Extension of the deadline will be granted just in cases customs failed in the proceedings. In cases with the defendant objected to the destruction of the goods it depends on the decision of the responsible officer. The strict customs offices wouldn't give an extension to initiate legal actions on short notice. In case a sample has been requested and has to be shipped for physical inspection to an expert of the rights holder, no extension of the deadline is in practice given. Italy
Italian Customs do not require a justified request for an extension. Latvia
In Latvia, if the importer is a physical person and there is a low amount of goods (for personal use), customs would extend the deadline only if there is an objection. If there is no objection, customs cannot extend the deadline just for the purpose of examination of the goods. If the importer is physical person or company and they file the import/export/transit declaration, customs would extend the deadline no matter if the objection is filed or not. Lithuania
In Lithuania asking for a sample or not does not make a difference. Customs will approve the extension only if there is an objection from the importer. However the extension of time has never been requested for the single purpose of asking for a sample without an opposition. This has been discussed with customs officers from Vilnius (they handle the majority of LT customs seizures) and they confirmed that in difficult cases (where the samples should be sent for examination to foreign country) they would approve the extension. Netherlands
It used to be no problem to get an extension in Belgium when the right owner did not answer in time, but that is not considered a valid reason anymore. Dutch Customs will grant an extension when a sample is required and therefore confirming the infringement within the first 10 working days will not be possible. And most of the time also when additional images are requested. However and contrary to what was done before, an extension of a full new 10 working days is not automatically granted, but only a couple days instead. Poland
The request for an extension of the first deadline does not make any difficulties. This request can be done usually a few days before the first deadline expires, providing customs with short explanation for this request. Even if a sample is requested within first 10 days of seizure, the customs neither "take back" additional 10 days deadline provided to the right owner nor do they refuse to extend the deadline. Portugal
In Portugal customs are starting to refuse extension unless the right owner expresses its willing to proceed criminally against the defendant. Spain
With the new EU Regulation, Spanish Customs are stricter when granting extensions of the deadlines given to solve the cases. However, it is also true that it depends on the Spanish Customs as well, since some of them may grant extensions if indeed the request is justified and although clear pictures of the goods have been already received (or the sample itself for review) and there is no opposition from the importer. In that regard, the most flexible Spanish Customs are Barcelona Airport Customs and Sevilla Customs. Also, Valencia Port and Airport Customs together with Alicante Airport Customs may be considered flexible in this sense too. On the other hand, Las Palmas Aiport Customs would be an example of one of our Spanish Customs that grant extensions of the deadlines only when it has been duly justified. Sweden One cannot get an extension to confirm infringement, but only for negotiations with the consignee |