«(Counterfeit and pirated goods – No criminal penalty for the transit of counterfeit goods – Compatibility with Regulation (EC) No 3295/94)»

1.. Common commercial policy – Measures designed to prevent the marketing of counterfeit and pirated goods – Regulation No 3295/94 – Scope – Goods in external transit – Included (Council Regulation No 3295/94, Arts. 2 and 11)

2.. Acts of the institutions – Regulations – Implementation by the Member States – Duty to interpret national law so as to be compatible with Community law – Limits – Principle of non-retroactivity of criminal offences and penalties

JUDGMENT OF THE COURT (Fifth Chamber) 7 January 2004 (1)

((Counterfeit and pirated goods – No criminal penalty for the transit of counterfeit goods – Compatibility with Regulation (EC) No 3295/94))

In Case C-60/02,

REFERENCE to the Court under Article 234 EC by the Landesgericht Eisenstadt (Austria) for a preliminary ruling in the criminal proceedings before that court against

on the interpretation of Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights (OJ 1994 L 341, p. 8), as amended by Council Regulation (EC) No 241/1999 of 25 January 1999 (OJ 1999 L 27, p. 1).

THE COURT (Fifth Chamber),,

composed of: D.A.O. Edward (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and P. Jann, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 5 June 2003,

gives the following

Community law

entered for free circulation, export or re-export, in accordance with Article 61 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code,

found in the course of checks on goods under customs supervision within the meaning of Article 37 of Council Regulation (EEC) No 2913/92, placed under a suspensive procedure within the meaning of Article 84(1)(a) of that regulation, re-exported subject to notification or placed in a free zone or free warehouse within the meaning of Article 166 thereof; and

.

Save in exceptional cases, simply removing the trade marks which have been affixed to the counterfeit goods without authorisation shall not be regarded as having such effect....3. In addition to the information given pursuant to the second subparagraph of Article 6(1) and under the conditions laid down therein, the customs office or the competent service shall inform the holder of the right, upon request, of the names and addresses of the consignor, of the importer or exporter and of the manufacturer of the goods found to be goods referred to in Article 1(2)(a) and of the quantity of the goods in question.

National law

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Landesgericht Eisenstadt by order of 17 January 2002, hereby rules:

Edward

La Pergola

Jann

Delivered in open court in Luxembourg on 7 January 2004.

R. Grass

V. Skouris

Registrar

President