322. The representative of Brazil agreed with the European Communities that piracy and counterfeiting constituted serious problems that all WTO Members and the international community should effectively address. However, he disagreed with the focus and the overall conceptual approach of the EC document, as well as with the activities that it proposed that the TRIPS Council should undertake. He said that Brazil took its rights and obligations under the TRIPS Agreement very seriously and, like other developing countries, had spent the better part of the last decade enacting numerous measures and legislation to comply with the terms of this complex and burdensome Agreement. Implementation of TRIPS provisions was still an ongoing process for many, if not most, developing countries, as many of the transition periods foreseen in the Agreement had only recently expired, or, in the case of LDCs, were at that time still being enjoyed. In view of this, the statement in document IP/C/W/448 that "the level of execution and the results of the implementation of the IPR enforcement measures prescribed by the TRIPS Agreement can be questioned and must be improved" was unbalanced and unfair. He agreed with a point made by India at the June meeting that it would be premature for the Council to engage in discussions on effective enforcement when the implementation of the Agreement had yet to be completed in many countries.
323. In his view, the EC proposal to use the Council to examine Members' TRIPS implementation and to make recommendations on improving that implementation through, for example, the laying down of benchmarks, including suggestions of best practices, clearly went beyond the Council's practice at that time. In fact, the EC proposal would have the Council play a de facto norm-setting role that, contrary to what the EC document suggested, was neither required by nor foreseen in Article 68 of the Agreement. Furthermore, the in-depth examination and de facto norm setting role proposed by the European Communities would add a new level of intrusiveness to the Council's monitoring activities vis-à-vis Members' implementation efforts. This did not seem consistent with Article 1.1 of the Agreement, which afforded Members the flexibility to determine how best to implement their TRIPS obligations within their own legal system and practice.
324. He said that the WIPO Advisory Committee on Enforcement already provided a forum for exchange of information and coordination on enforcement matters. He saw no reason why the Council should duplicate its work. Moreover, he said that it should be noted that when deciding to establish the Advisory Committee on Enforcement in the year 2002, WIPO member states had deliberately chosen to exclude norm-setting, including the elaboration of best practices, from the Committee's mandate. At that time, numerous developing countries had rejected the idea that the new WIPO enforcement body should play an intrusive and TRIPS plus norm-setting role, exactly what the European Communities would now like to see the Council do. He hoped that the European Communities would not expect developing countries to be inconsistent in their positions by agreeing in the Council to something they had already rejected in WIPO.
325. In concluding, he said that he believed that the EC proposal, including as further elaborated by the European Communities at the present meeting, not only went beyond the Council's practices and mandate, but was also fundamentally misguided and premature. He therefore asked that this item be removed from the agenda of all future Council meetings, as he did not believe that it would be useful to continue deliberations on the basis of the EC document. Noting that the Dispute Settlement Body was in charge of addressing perceived or alleged cases of Members' non-compliance with their obligations under all Agreements administered by the WTO, he said that his delegation was concerned about the enforcement by Members of their obligations under several WTO bodies, including under decisions already adopted by the DSB, in particular in the area of agriculture.
