258. The representative of Brazil said that the rules of Directive 2004/48/EC might not necessarily represent the best solution in the area of enforcement for the whole international community. He failed to understand the compatibility of the EC proposals with the Council's mandate as contained in Article 68 of the TRIPS Agreement, according to which the Council should monitor the operation of the Agreement, and in particular, Members' compliance with their obligations under it, and should afford Members the opportunity of consulting on matters relating to the trade-related aspects of IPRs. The powers to interpret and recommend actions, as proposed in the EC documents, could also involve a conflict of mandate between the Council and the Dispute Settlement Body, which was responsible, according to the TRIPS Agreement, for judging allegations of non-compliance with the rules on enforcement of IPRs.
259. He said that other delegations had raised the point of whether the EC Directive had been notified to the TRIPS Council. This was an extremely important issue because Article 41 of the Agreement clearly stated that enforcement measures, in themselves, should not create barriers to legitimate trade and should provide safeguards against their abuse. Although the EC representative had said that there was no finger pointing or mentioning of Member countries, such acts had happened within the context of the European Communities' broader actions related to intellectual property rights. Finger pointing on a unilateral basis, outside the framework of the Agreement, could be equated with creating barriers to legitimate trade, in particular of developing countries. This was a point that should be adequately considered under the appropriate agenda item of the Council, the item on notifications, reviews of national implementing legislation, and not under the current one.
