An Italian consumer was recently fined after purchasing counterfeit products of a well-known American multinational company from a Chinese e-commerce platform.
Rome’s Customs Office suspended the delivery of the parcel, ascertaining – with the support of the company’s consultants – that the products were not original. The goods were seized and the final consumer, even though the purchase was merely for personal use, was subject to substantial administrative sanctions.
Such cases are becoming increasingly common, with Italian customs frequently intercepting small shipments of counterfeit goods originating from non EU countries. Authorities warn that private buyers can be fined regardless of the quantity, if the products violate intellectual property rights.
The import of counterfeit goods is regulated by EU Regulation No 608/2013, which allows rights holders to request customs intervention through two different procedures:
The simplified procedure enables destruction of goods without trial if infringement is confirmed and the buyer does not object.
The small consignments procedure applies to shipments of up to three items or 2 kg, allowing destruction even without confirmation unless the buyer objects.
These procedures were not entirely applicable in Italy because because in contrast with Italy’s Criminal Code, according to which customs officers, acting as judicial police, must report any crime (infringement) to criminal prosecutors and thus destruction of goods without a trial was not always possible. This has led to many criminal proceedings, even for minor personal imports, overloading the judicial system. In other instances, the complexities of the procedures following a criminal seizure led to the implementation by the various Customs across the country of “personalized” alternative procedures.
With the aim of clarifying the application of the new administrative sanctions regime for intellectual property rights infringements, on 2 February 2022, the Customs and Monopolies Agency published an official notice “New penalties for small shipments that violate regulations on the origin and provenance of products and on intellectual property”.
More specifically, the notice under paragraph 7-bis provides for the imposition of an administrative penalty ranging from €100 (increased to €300) to €7,000 on final purchasers who bring goods into the country from non-EU countries, in violation of the rules on origin, provenance or industrial property rights and copyright.
This penalty applies only if:
-the goods are intended for personal (i.e. non-commercial) use,
-do not exceed 20 pieces or 5 kg gross weight,
-and the introduction is not related to business activities.
The Customs Agency clarifies that intellectual property rights holders may now request the simplified procedure provided for in Article 26 of the EU Customs Control Regulation, by completing the appropriate fields in the form referred to in Article 6 of the notice. This new approach has triggered a greater operational efficiency on the part of Customs offices on the seizure of small consignments.
In the event that a violation by a consumer is ascertained, in addition to the destruction of the goods, the customs authorities may proceed with the application of a fine. The exact amount will be determined according to the criteria established by Article 11 of Law No. 689/1981, which considers: (i) the seriousness of the breach; (ii) any commitment by the agent to eliminate or mitigate the consequences of the infringement; (iii) the personality of the subject and its economic conditions.
A reduced payment equal to twice the minimum statutory penalty (plus procedural costs) is available if the sanction is paid within 60 days of notification.
While compliance with EU and national laws of this procedures may questionable, it is now a fact that even in the case of purchases of counterfeit products for personal use and in a small quantities, Italian Customs may now apply a strict but proportionate system of penalties aimed at protecting intellectual property rights and discouraging the importation of fakes or illegal goods.
Contact graziana ercolanelli, Valerio Drago or Martina Antonelli if you want to make sure that the small consignment procedure as recently simplified is available for your brand!
