PART I. FRAMING THE ENFORCEMENT DIRECTIVE

The legislative harmonisation of Intellectual Property (IP) rights in the European Union (EU) has been a work-in-progress since the publication of the Preliminary Draft Convention on a European Patent Law in 1962. Almost a century before that, two international initiatives, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), already strived to overcome the obstacles that diverging national IP laws posed for increasing globalisation and international economic and cultural transactions. Belgium has stood at the forefront in all of these initiatives.

While these two conventions and subsequent international and European initiatives introduced a significant harmonisation of substantive IP rights, they only provided for general enforcement standards. This resulted in disparities between national IP enforcement mechanisms. Directive 2004/48/ EC (Enforcement Directive), adopted on 29 April 2004, aimed to resolve these disparities by harmonising the legislative systems of the European Member States with a view to ensuring a high, equivalent and homogenous level of IP protection throughout the internal market. The Enforcement Directive put forward a legal framework for protection, based on best practices of the Member States, which required the implementation of specific effective, proportionate and dissuasive enforcement measures. Its specific purpose was to tackle wide-scale piracy and counterfeiting infringements and to create a level playing field for IP rightholders in the EU. The adopted provisions of the Enforcement Directive were oft en based on already existing enforcement principles contained in the TRIPS Agreement, but also in existing legislation of several Member States.

Although the legislative adoption procedure of the Enforcement Directive was swift, it was not without controversy. The initial proposal by the European Commission provoked serious public concern, with several civil rights organisations opposing it. The proposed directive was subsequently amended, taking into account the main points of criticism, especially with regard to the right of information and to the criminal sanctions proposed. Without delay and without requiring further reading of the document, the European Parliament and Council adopted the Enforcement Directive little more than a year after the publication of the Commission's initial proposal.