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New measures regarding the destruction of goods detained by the Romanian authorities as material evidence

May 2024

Andreea Bende authored a first radiography of the recent changes brough to the relevant legislation.

The legal framework on the operations carried out in connection with the destruction of material evidence, when it comes to goods proven to infringe intellectual property rights, has been amended by Law nr. 126/2024 on certain measures to strengthen the capacity to combat tax evasion, as well as for amending and supplementing certain normative acts (“Law”), among the amended normative acts being the Criminal Procedure Code („CPC”).

Thus, Article 197 of the CPC is amended by detailing new procedures regarding assets retained as material evidence, in the case of certain specific assets, as follows:

  1. The goods shall be inventoried, taking at the same time the appropriate security, storage and preservation measures until their actual handing over to the entities that will be carrying out their destruction
  2. The goods are photographed, the photos being then endorsed by the criminal investigation body and attached to the criminal investigation file
  3. Samples will be taken, necessary for the expertise performed during the criminal investigation or during trial, kept by the criminal investigation body or by the court where the file is located, until the final settlement of the case

If the detained goods are processed tobacco, after completing the above steps, the goods shall be handed over for destruction to the authorized entities also handling the storage of manufactured tobacco, to the registered consignees or to the authorized importers of such goods. The handover will be performed in a maximum term of six (6) months from the identification of the goods, based on a reasoned order issued by the prosecutor during the criminal investigation stage or by a court order. The costs associated with the taking into custody, transport, storage and destruction of goods remain, according to art. IV para. (7) of the Law, in charge of the authorized storage entities.

However, if the goods seized are goods proven to infringe an intellectual property right, other than goods representing manufactured tobacco, after completing steps 1 to 3 above, they shall be handed over to the holder of the intellectual property rights. The delivery will take place within the same maximum period of 6 months from the identification of the goods.

According to art. IV para. (11) of the Law, holders of intellectual property rights have the obligation to ensure, at their own expense, the taking into custody, transport, storage and destruction of goods from the confiscated lot.

According to the law, the destruction procedure would continue to be organized in accordance with the provisions of Article 1 para. (1) – (5) of Government Ordinance no. 14/2007 regulating the manner and conditions of capitalization of assets entered, according to the law, into the state’s private property as, republished, with subsequent amendments and completions. According to these provisions, the destruction will be carried out in the presence and under the confirmatory signature of a committee tasked with the destruction operations, consisting of representatives of the holder (in this case the holder of the intellectual property rights), of the National Authority for Consumer Protection, of the recovery body, of the Ministry of Internal Affairs and of the Ministry of Environment and Climate Change.

Holders of intellectual property rights will continue to have the possibility to hand over goods free of charge, depending on their nature, for use by humanitarian non-profit organizations or associations, educational institutions, sports associations, etc., provided they are not commercialized.

The law does not define what constitutes goods proven to infringe an intellectual property right. A definition of this term also does not exist in the CPC. However, the interpretation of this concept, as such will be rendered by the Romanian authorities, including the courts of law and the prosecutor’s offices, will have to take into account all competing rights, including, on the one hand, the ownership right over the goods, the presumption of innocence of the goods’ addressee/owner, and, on the other hand, the intellectual property rights that the law seeks to protect.

At a first assessment, the legislative solution places an excessive burden on the shoulders of IP rights holders, not ensuring a fair balance between the public interest aim pursued (reducing state spending) and the means used (imposing these expenses on injured persons).  If an interpretation affecting these rights is adopted, most likely, we will witness proceedings of referral to the Constitutional Court with exceptions of unconstitutionality raised in relation to these new legal provisions.

The practical impact of these newly established measures in the context of the large volume of goods seized, the occupancy rate of the storage spaces used by the state, also influenced by the slow pace in which the criminal cases are solved, and by the promptness with which the seized goods are handed over for destruction/valorization, will make the approach of the authorities involved to be extremely carefully analyzed in the future by both the IP rights holders, as well as by the owners of the goods allegedly infringing these rights.

To raise awareness on intellectual property aspects and to help companies understand the relevant concepts, risks and benefit connected to such, BACIU PARTNERS professional constantly contribute expert views on complex or hot topics.

To learn more about our Intellectual Property practice please click HERE.

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