Europaabgeordnete stimmen für Haftstrafen für Fälscher[en] 

In July 2007, the Commission presented a double proposal for a directive and a Council framework decision  aiming at introducing criminal sanctions for IPR infringements. 

On 26 April 2006, the Commission presented a redrafted proposal  to take into account a judgment by the Court , dating from 13 September 2005, which held that the EU has powers to harmonise member states' criminal law, if required, for the effective implementation of Community law (see Communication COM/2005/0583 final ). If adopted, the Directive would be the first to enforce changes to member states' criminal law on the grounds of this ruling. 

On 5-6 October 2006, the Justice and Home Affairs Council  discussed the Commission's amended proposal. 

In the Parliament, MEP Nicola Zingaretti (PSE, Italy) was appointed rapporteur for the Legal Affairs Committee.

The committee voted to impose fines of at least €300,000 and four years' imprisonment in serious cases and €100,000 in minor cases. The committee also voted for 'Joint Investigation Teams' to be set up, in which the holders of an allegedly infringed intellectual property right could be part of the investigations, alongside with the police. 

Although the Council is expected to back the directive, it is likely to be attacked before the Court for its possible lack of a proper legal foundation (see 'Positions'). 

The initial proposals were criticised by a wide range of industries, including computer and software manufacturers, telecom operators, generic medicines manufacturers and trademark holders, for failing to fence the Directive's scope in on the problem of commercial counterfeiting. A further point of criticism was that the draft would also introduce criminal measures for alleged infringements of unexamined intellectual property rights, such as pending or contested patent applications. 

The Parliament's Legal Affairs Committee voted to limit the scope to the following intellectual property rights:

• Copyright and related rights;
• sui generis rights of a database maker; 
• rights of the creator of a topography of a semi-conductor product;
• trademark rights;
• design rights;
• geographical indications, and;
• trade names.

Stakeholders criticised that the draft risked criminalising even small-scale infringements for personal use, such as copying the content of a DVD to a computer's hard disk or making a back-up of a copy-protected CD. The Committee voted to cover only "intentional infringements on a commercial scale", where "commercial scale" is defined as "any infringement committed to obtain a commercial advantage", and "intentional" as "deliberate and conscious". 

Parliament Rapporteur Nicola Zingaretti (PES, IT) said: "We are turning a new page: this is the first directive where criminal law is included. To harmonise criminal codes will be a radical new thing."

Reto Hilty, Annette Kur, Alexander Peukert of the Max Planck Institute for Intellectual Property Law doubt that the Court's 2005 ruling is a sufficient foundation for the Commission's redrafted proposal: "The question needs to be answered whether the conditions for community regulation are fulfilled in this particular case. According to the ECJ ruling and with particular respect to penal sanctions the condition must be met that the latter are absolutely necessary regarding the declared objectives. Indeed, there are grave misgivings as to whether non-harmonisation of national penal sanctions for IPR infringements would hamper the free market in goods and services between member states, as compared to the market within just one member state - after all, intellectual property rights infringements are illegal in all member states. The sole fact that it is possible, in member states, to obtain illegally pirated goods, does not justify EU competency for harmonisation."