Each EU Member State has a customs department competent to receive and process applications for actions. The IPR holder chooses whether to file a national or a Union application for action (the only conditions to be met are that the IPR holder is entitled to submit the application and that a Union application can only be submitted for Union rights).
The holder of the IPR or the person authorized to use it (as well as the representative) shall prove, at the time of the application, their status, the rights to be enforced, shall describe the goods in question in sufficient detail and provide all information relevant for customs authorities’ risk analysis. They must have protected their IPR in the Member State where application for action is made by means of either a national, regional or an international instrument.
The competent customs department shall notify the applicant of its decision granting or rejecting the application within 30 working days of the receipt of the application. In the event of rejection, the competent customs department shall provide reasons for its decision and include information on the appeal procedure.
Goods suspected of infringing an intellectual property right may be destroyed under customs control, without the need to determine if an intellectual property right has been infringed under the law of the Member State where the goods are found, when:
- the right-holder involved confirmed in writing to the customs authorities (within 10 working days, or 3 working days in the case of perishable goods, of notification of the suspension of the release or the detention of the goods) that, in his conviction, an intellectual property right has been infringed, together with his agreement to the destruction; and
- the declarant or the holder of the goods has confirmed in writing to the customs authorities his agreement to the destruction within the same deadlines.
If the declarant or the holder of the goods does not confirm his agreement in writing nor notifies to the customs authorities his opposition to the destruction, customs authorities may deem the declarant or the holder of the goods to have confirmed his agreement to the destruction of the goods.
If the declarant or the holder of the goods explicitly opposes the destruction or if his tacit consent cannot be presumed, the customs authorities shall immediately notify the right-holder who shall initiate proceedings (within the deadlines of 10 working days, or 3 working days in the case of perishable goods, of notification of the suspension of the release or the detention of the goods) in order to determine whether an intellectual property right has been infringed.
Where the conditions and deadlines mentioned above are not met, the customs authorities shall grant the release of the goods or put an end to their detention.
A simplified procedure for the destruction of small consignments has been introduced with the aim to alleviate the burden on customs authorities and right-holders in the context of booming internet sales. This procedure provides for the possibility to destroy non-perishable goods, which are suspected of being counterfeit or pirated goods and which are transported in small consignments, upon the express or presumed agreement of the sole declarant or holder of the goods without the need to involve the holder of the decision granting an application for action (the “holder of the decision”). The customs authorities shall apply this procedure if right-holders opted for it when filing their applications for action.
Where the customs authorities have been notified of the initiation of proceedings to determine whether a design, patent, utility model, topography of semiconductor product or plant variety right has been infringed, the declarant or the holder of the goods may request the customs authorities to release the goods or put an end to their detention before the completion of those proceedings. The customs authorities shall release the goods or put an end to their detention only where all of the following conditions are fulfilled:
(a) the declarant or the holder of the goods has provided a guarantee that is of an amount sufficient to protect the interests of the holder of the IPR;
(b) the authority competent to determine whether an IPR has been infringed has not authorised precautionary measures;
(c) all customs formalities have been completed.
The customs authorities shall give the holder of the decision and the declarant or the holder of the goods the opportunity to inspect the goods whose release has been suspended or which have been detained.
The customs authorities may take samples that are representative of the goods. They may provide or send such samples to the holder of the decision, at the holder’s request and strictly for the purposes of analysis and to facilitate the subsequent procedure in relation to counterfeit and pirated goods. Any analysis of those samples shall be carried out under the sole responsibility of the holder of the decision. The holder of the decision shall, unless circumstances do not allow, return the samples to the customs authorities on completion of the analysis, at the latest before the goods are released or their detention is ended.
The customs authorities shall, upon request and where available to them, inform the holder of the decision of the names and addresses of the consignee, the consignor and the declarant or the holder of the goods, of the customs procedure and of the origin, provenance and destination of the goods whose release have been suspended or which have been detained.
Where a procedure duly initiated pursuant to Regulation (EU) No 608/2013 is discontinued, owing to an act or omission on the part of the holder of the decision, where samples are either not returned or are damaged and beyond use, owing to an act or omission on the part of the holder of the decision, or where the goods in question are subsequently found not to infringe an intellectual property right, the holder of the decision shall be liable towards any holder of the goods or declarant, who has suffered damage in that regard, in accordance with applicable national legislation.
 Art. 26 of the Regulation