A comparative law perspective on the Dutch seizure to preserve evidence After studying the Directive, how it came to be, and the legal systems which served as inspiration for the measures for preserving evidence which Article 7 prescribes for the Member States, I conclude that these measures are also aimed at gathering evidence. If a Member State implements measures that are aimed solely at securing evidence, it will not be meeting the obligations imposed upon it by Article 7 of the Directive. The aforementioned measures must make it possible to actually obtain the evidence. The details of the procedure for accomplishing this are largely left up to the Member States themselves. Still, that freedom is not without limits. The procedure must always be reviewed in light of the purpose of the Directive, namely ensuring a comprehensive harmonised minimum level of – in this case – measures to preserve evidence, and the general obligation laid down in Article 3. This means that the procedure must be fair and equitable, but must not be unnecessarily complicated or costly or entail unreasonable time limits or unwarranted delays. The measures must also be sufficiently effective, proportionate, and dissuasive. In the European legislature’s view, the French saisie-contrefaçon, the Belgian descriptive seizure order (beslag inzake namaak), and the English Anton Piller order satisfy these criteria. This means that the comprehensive minimum level which the Directive strives to achieve is at least met if the other Member States follow the European legislature’s example and base their measures on those mentioned above. After all, it would seem illogical to assume that the European legislature was aiming for a lower minimum level than that achieved by the measures which served as sources of inspiration for Article 7.
|Award date||27 May 2021|
|Place of Publication||Den Haag|
|Publication status||Published - 27 May 2021|
- seizure of evidence
- search order
- enforcement directive
- intellectual property rights