“Alone we can do so little; together we can do so much”: the essential role of EU agencies in combatting the sale of counterfeit goods

ABSTRACT

This article demonstrates the role and importance of EU agencies in the EU’s regulatory environment, and considers the consequences of an absence of cooperation through agencies for internal security. It does so by exploring the case study of the anti-counterfeiting activities of the European Union Intellectual Property Office (EUIPO), and what happens when a state no longer benefits from membership of an EU agency. The effective protection of consumers from counterfeit goods is dependent upon identifying best practices, sharing information on counterfeiting trends, and coordinating responses, activities undertaken through EU agencies. This article demonstrates that the ability of states to effectively counter the sale of counterfeit goods is dependent upon the existence of EU agencies due to the need for transnational cooperation. In the absence of EU agencies, states are likely to suffer diminished operational expertise and a lack of in-depth knowledge concerning counterfeiting trends. It concludes that the EU agencies form an essential part of EU security governance, with states not party to these cooperative endeavours rendered vulnerable and unable to combat at a national level what is ultimately a global problem.

KEYWORDS:

• Counterfeits
• governance
• EU agencies
• Brexit
• expertise
• crime

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contribuotor

Benjamin Farrand works on the interplay between law and politics when regulating emerging technologies. He writes about security, lobbying and policy development in areas of uncertainty, with recent works including articles on emerging approaches to counterfeit control on the Internet, comparative approaches on biotechnology regulation in the EU and China, and the private regulation of cybersecurity.

ORCID

Benjamin Farrand http://orcid.org/0000-0002-4508-0839

Notes

1. Cases C-359/92 Federal Republic of Germany v Council (Product Safety) EU:C:1994:306; C-66/04 United Kingdom v European Parliament and Council of the European Union (Smoke Flavourings) EU:C:2005:743; C-217/04 United Kingdom v European Parliament and Council of the European Union (ENISA) EU:C:2006:279; Case C-270/12 United Kingdom v European Parliament and Council of the European Union (EMSA) EU:C:2014:18; Case-358/14 Poland v European Parliament and Council of the European Union (Tobacco Products Directive) EU:C:2016:323.

2. Directive 2016/1148 concerning measures for a high common level of security for network and information systems across the Union.

3. Regulation 3842/86 was very quickly replaced by Regulation 3295/94 laying down measures to prohibit the release for free circulation, export, re-export, or entry for a suspensive procedures of counterfeit and pirated goods, which was amended several times, the last amendment of which was by amending Regulation 806/2003. This Regulation was then repealed, and replaced by Regulation 1383/2003 concerning customs actions against goods suspected of infringing certain intellectual property rights and measures to be taken against goods found to have infringed such rights, which was then repealed and replaced by Regulation 608/2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003.

4. Prior to 2016, Europol was able to enter into cooperation and strategic agreements with third states. However, with Regulation 2016/794, while all previous agreements continue to have force under Article 25(1)(c). Under Article 23(1), the new form of cooperation is in the form of an “arrangement”, which is concluded not with a state, but with that state’s relevant authorities. It is also worth noting that under this Regulation, Europol’s full name changed to the European Union Agency for Law Enforcement Cooperation, demonstrating that the EUIPO could have also stuck to the new naming convention.