NATIONAL LAW IMPLEMENTING THE ENFORCEMENT DIRECTIVE

A. PRIMARY AND SECONDARY LAW

Directive 2004/48/EC was transposed by Law No. 16/2008, of 1 April, amending the Copyright and Related Rights Code (CRRC) and the Industrial Property Code (IPC). This implementation resulted in the third amendment to the IPC, the seventh amendment of the CRRC, and the second amendment of Decree- Law No. 332/97, of 27 November, which tangentially approaches certain related rights to copyright, in relation to intellectual property (IP) matters.

Generally, the transposition of Directive 2004/48/EC was reasonably straightforward, although there were some particular translation inaccuracies, which are described in more detail below.

B. TRANSPOSITION ISSUES

Under Article 20 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (the “Enforcement Directive”), Member States had until 29th April 2006 to take all necessary steps to implement it. Portugal missed the deadline by almost two years and only implemented the Enforcement Directive under threat of infringement proceedings by the European Commission. The provisions of the Enforcement Directive are clear, precise and unconditional and certainly had vertical direct effect aft er the implementation date had passed. It could be argued that it also had horizontal direct effect, given that it deals with matters that should be considered general principles of EU law.3

There were some major issues in implementing the Enforcement Directive, due to the confl icting interests of many parties, thus various draft s were drawn up: one by the Portuguese Bar Association's Intellectual Property Working Group, two by the Ministry of Culture's Copyright Office, and one by the Portuguese Institute of Industrial Property, which is overseen by the Ministry of Justice, as well as by the opposition parties. Eventually, the Copyright Office's second draft was merged with the draft of the National Institute of Industrial Property and amended in the discussion with the opposition parties, giving rise to the fi nal wording of Law No. 16/2008, of 1 April.

As part of that process, Portuguese lawmakers considered some unfortunate ideas, such as two-speed implementation, where copyright but not industrial property provisions would change, or the minimalistic approach in the fi rst draft, which likely infringed the principle of primacy of EU law over state law and the principle of loyalty.