Criminal Liability in Regulatory Contexts Responses - Law ...

1.317 Spirit drinks in the EU are controlled by EC Regulation 110/2008, which imposes
on Member States a requirement to "take the measures necessary to ensure
compliance". Member States are to exercise those controls, including controls on
geographical indications (GIs), in compliance with EC Regulation 882/2004.
Article 55 of that Regulation requires that "sanctions provided for must be
effective, proportionate and dissuasive". The SWA believes that an enforcement
regime which is limited to minor administrative penalties cannot be described as
"dissuasive" and will not meet the requirements of Regulation 882/2004, in view
of the significant profits which can be made by those selling imitation Scotch
Whisky (see below).
1.318 Furthermore, while provisions relating to criminal enforcement were not made
compulsory by the EU IP Directive (Directive 2004/48), that option is clearly
provided for in Article 16, and indeed paragraph (28) of the preamble to the
Directive states:-
In addition to the civil and administrative measures, procedures and
remedies provided for under this Directive, criminal sanctions also
constitute, in appropriate cases, a means of ensuring the
enforcement of intellectual property rights.
1.319 Account must be taken of EU law, and the approach taken in other EU member
states, in view of the harmonisation of EU laws in this field. In Europe, misuse of
GIs is regarded as a serious offence and in most countries constitutes a criminal
offence. For example the French Consumer Code (L.115-16 to L.115-18)
provides that misuse of an appellation of origin can be punished by up to 2 years
imprisonment and/or a fine of €37,500.
1.320 The SWA is assuming that the Law Commission would regard the SWR as a
"regulatory provision", and it is of course the case that it is a regulation governing
the activities of business. However, any suggestion that, because it is a
regulatory provision and governs the activities of business, the SWR is somehow
a minor law, which should not include criminal offences, would be entirely
misconceived.
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