As blogged about last year by Shamnad the controversial E.U. Regulation 1383/2003 has been interpreted differently by English Courts and the Dutch Courts. The English Courts had interpreted the legislation in a manner prohibiting the Customs Authorities from seizing consignments of counterfeit goods that were transiting through its territories. The Dutch Courts on the other hand were interpreting the regulation to seize several consignments, that were transiting through its territories, on the grounds that they were violating the E.U. IP laws. In this backdrop the E.U.’s decision to amend its laws is a legal victory for India.
The E.U’s decision assumes special significance since it has been made in the backdrop of the negotiations on the Indo-E.U. FTA talks which should be concluding in New Delhi today. Patient groups are up in arms against the current round of talks since they fear that the E.U.’s demand for data exclusivity will severely affect the availability of new life-savings drugs in India and the rest of the developing world.
It remains to be seen whether the E.U.’s decision to change its laws is linked to a compromise by the Indian Government on the Indo-E.U. FTA.
The EU has only agreed to amend its law. India should have only withdrawn the dispute after such amendment. For the “executive” wing of the EU cannot guarantee such amendment…much like the government of India cannot guarantee an amendment to its law. It is for the Indian Parliament to amend laws…and as the Indian government is now increasingly learning from the Nuclear Liability Bill episode and even the Indian Bayh Dole bill episode, it cannot always expect the Indian Parliament to toe the line that it takes.
“it’s only words and words are all I have to take your heart away.”
So sang a bunch of zoned out boys. Words may indeed suffice in the cute world of romance.
But not so with IP and international trade! Don’t rely merely on EU words. India must Insist on a clarificatory amendment. And only then withdraw its WTO complaint.
Interestingly, in the news paper article that you link up to in this post, Minister Sharma notes:
“The EU has accepted our position and amended its rules”
But has the EU really amended its rules? I dont think so.
Minister Sharma also goes on to note:
“We do not want to be in conflict. There has been realisation and we appreciate the steps, which have been taken. They went to the extent of saying that they were misreading the concerned EU notification”
But again a mere assurance that they would read the EU rules differently is not good enough. This assurance has to come from an authoritative source such as the ECJ (and the Nokia case as I understand it is before teh ECJ). Better still, the EU rules have to be specifically amended to ensure that there is absolutely no scope for “in transit” seizures of this nature.