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EU Directive 2004/48 EC obliges Member States to seek to achieve
‘partial harmonization’ of the remedies, procedures and measures necessary to
enforce intellectual property law. These obligations provide what may be
termed a minimum standard which must be fulfilled by the Member States in the
course of their implementation of the Directive. However, the Directive is not
faring well at the Member State level.
The three authors’ vastly detailed, article-by-article analysis of the
fortunes of Directive 2004/48 EC in three EU jurisdictions offers enormously
valuable insights into the complex ways Member States respond to Community
law, and in so doing provides an important addition to the ongoing inquiry
into the nature of the reciprocal tensions between EU law (both judicial and
legislative) and the laws of Member States.
The particular investigation undertaken here reveals three paradigmatic
the situation in which the Directive has not been implemented at all, either
because the Member State believes that its current legislation is adequate or
that the wording of the Directive is such that no special legislation is
the situation in which implementation has been inadequate, because either the
pre-existing legislation constitutes inadequate legislation or because the
specifically adopted legislation proves to be legally uncertain (The
the situation in which the relevant time for implementation for the Directive
has elapsed and no specific legislation has been adopted (Germany).
If there really is, as the European Commission contends, an ‘enforcement
deficit’ in the protection of intellectual property rights by national rules
of procedure, then the most effective remedial approach, Cummings shows, is
through the principles of legal certainty, full effect, and effective judicial
protection. These principles will assist the national court in interpretation
of the precise meaning of the substantive obligations under the Directive.
Drawing on the tenor of ECJ law that national procedural rules should not
present an obstacle to adequate judicial protection, the author considers the
conditions that must be fulfilled before an eventual claimant, who has
suffered loss and damage caused by either the non-implementation or the
incorrect implementation of a directive, may bring an action against the State
for breach of Community law.
The author presents his analyses of the implementation of the Directive in
Dutch and English national procedure and his proposals for German
implementation as three separate cases rather than comparatively, as any
attempt to compare either the method of national implementation or the degree
of adequacy or inadequacy inevitably obscures the essential particularities of
each of the three national systems in relation to the Directive. Although this
book will repay the study of anyone interested in European law, it will be of
special value to practitioners and policymakers engaged in intellectual
property law, particularly in EU Member States.
Introduction. 1. Obligations and Structure of the Directive 2.
Structure of Directive 2004/48 EC. 3. The implementation of Directive
2004/48 into Dutch Civil Procedure. 4. Implementation of Directive
2004/48 EC in English Civil Procedure. 5. Germany. 6.
Conclusion. Bibliography. Selected Websites.