The harmonization of criminal law and procedure is still in its infancy within European Union law and so the relationship between the commercial framework of intellectual property and the criminal enforcement of its standards remains an unsettled and unsettling adolescence. The Proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights is at the vanguard of the extension of EU competence, some going as far as describing it as a competency Trojan Horse. The Proposal uses concepts such as ‘intention’, ‘aiding and abetting’ and ‘inciting’, all with very different meanings in national laws, but as yet with no EU meaning. It also imposes rules on terms of imprisonment despite the differences in the law governing imprisonment and release in the various Member States. Indeed, the Proposal even requires some Member States to introduce new criminal penalties. It presents, therefore, a radical step in the development of the general acquis communautaire. It is not only a critical development for intellectual property practice and procedure in Europe but also an arguably controversial acceleration for European criminal law.
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