There was a time at which it was quite a challenge to take action in one or several countries in the European Union to enforce intellectual property rights. Despite the various IP enforcement provisions in the international Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS Agreement), there were considerable discrepancies in national legislation which caused uncertainty and a difference in enforcement levels between the EU Member States. Several countries were labelled as “IP Infringement (counterfeit) safe havens”. It was very difficult to untangle the knots out of the tangle of rules in cross-border disputes. Non-European holders of intellectual property rights had an even heavier task to enforce intellectual property rights effectively in the EU.

To respond to this, there was a call for harmonisation of national legislation in the field of the protection and enforcement of intellectual property rights. One way to introduce an equivalent level of protection in all Member States was to adopt a European directive. Like the EU institutions’ other legal instruments, directives are intended to achieve the objectives of the EU treaties which include security and justice, without internal borders; a highly competitive market economy; and developing an economic and monetary union.

A directive is a legal instrument that aims to harmonise the rules of the Member States. Unlike a European regulation, it does not have a direct effect in all EU Member States and must be implemented into national legislation. A directive requires Member States to achieve a particular result. However, the Member States themselves are free to adopt legislation and to choose the means by which to achieve that objective.

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights, 29 April 2004, OJ L 195, 16 (Enforcement Directive) was adopted for the enforcement of intellectual property rights in the EU specifically. It aimed to create a level playing field and ensure a high, equivalent and homogeneous level of intellectual property protection in the EU. The Enforcement Directive provided for ‘minimum harmonisation’ rules. This means that while the Member States were required to at least provide for the measures, procedures and remedies laid down in the Directive, they were free to exceed the threshold of the Enforcement Directive by incorporating stricter measures and increasing the levels of protection enshrined in its provisions.