The Commission can only propose a directive concerning criminal measures with the European Parliament as co-legislator in this case if the measures are essential for the realization of the single market. The Dutch Parliament dryly remarks that the Commission not even attempts to argue that a distortion in trade between member states would occur without this law, and concludes that therefore "any and all factual support" for the directive is missing.
The Parliament notes that the directive would only harmonise some penalties, but that there is no indication that criminals would choose the jurisdiction with the lowest penalties to operate from. Indeed, it is known that the chance to be caught plays a much bigger role, but the
Commission has no say over the generally low prosecution priorities for IP infringements. The Dutch Parliament thinks that more exchange of information among member states would be much more effective than these disproportionate punishment.
Only recently, the Commission gained any competence at all to propose criminal measures without member states having a veto, due to the European Court of Justice judgment (C-176/03). With this directive, it seems the Commission is trying to expand the boundaries of its competence further by ignoring the edge conditions of said verdict.
FFII analyst Ante Wessels says: "The European Commission and the member states are now in the process of circumscribing competence: How far can the Commission go? In this power struggle the Dutch Parliament made its statement: the Commission went much too far. Earlier Dutch minister of
Justice Donner had already stated he was not 'pleased'."
Jonas Maebe, FFII board member, concludes: "The stated aim of the directive is to combat counterfeiting and piracy, but the directive goes much further. Even companies which merely use properly licensed software can be criminalised, since such use is intentional, commercial and can
infringe on software patents. We hope that the Dutch Parliament's strong condemnation will wake up people and parliaments all over Europe."
Check FFII for background information and links on this.