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Guidance on certain aspects of Directive 2004/48/EC on the enforcement of intellectual property rights

Intellectual property rights (‘IPR’) protect intangible assets, allowing creators, inventors and artists to profit from their creative and innovative activities. Intangible assets account for more than half the value of companies, and their importance is growing. In a world where EU companies are increasingly competing on innovation, creativity and quality, intellectual property (‘IP’) is a powerful tool for growing the competitiveness of all companies, including small- and medium-sized enterprises (‘SMEs’).

The objective of IPRED is to bring national legislative systems closer together to ensure a high, equivalent and homogeneous level of protection in the internal market. The measures, procedures and remedies set out in the Directive are not implemented and applied in a uniform manner among the Member States. This is because, since the Directive provides for minimum harmonisation (i.e. Article 2 explicitly allows national legislation to provide for means that are more favourable to rightholders), there is no uniform interpretation of the Directive’s provisions and there are differences in national civil law proceedings and judicial traditions.

The scope of IPRED, even if properly applied, is limited to regulating measures, procedures and remedies available for the civil enforcement of IPR. Therefore, IPRED as such cannot address all the challenges reported by stakeholders in the course of the Directive’s evaluation, in particular those which related more generally to the protection of IPR outside the context of, or prior to, litigation.

For instance, some stakeholders would like clarification or a review of the rules on limiting the liability of intermediary service providers, which is primarily addressed in the e-Commerce Directive. Based on stakeholders’ feedback during the IPRED evaluation, the Commission has decided to issue the guidance (de) to clarify its views on the provisions of the Directive where there have been differing interpretations. The document is not legally binding, and the guidance provided does not affect the jurisprudence of the CJEU.