No L 341/8 Official Journal of the European Communities 30. 12. 94 COUNCIL REGULATION (EC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof, Having regard to the proposal from the Commission ('), Having regard to the opinion of the European Parlia- ment (3), Having regard to the opinion of the Economic and Social Committee (%), Whereas Council Regulation (EEC) No 3842/86 of 1 December 1986 laying down measures to prohibit the release for free circulation of counterfeit goods(*) has been in force since 1 January 1988 ; whereas conclusions should be drawn from the experience gained during the early years of its implementation with a view to improving the operation of the system it set up; Whereas the marketing of counterfeit goods and pirated goods causes considerable injury -to law-abiding manufac- turers and traders and to holders of the copyright or neighbouring rights and misleads consumers; whereas such goods should as far as possible be prevented from being placed on the market and measures should be adopted to that end to deal effectively with this unlawful activity without impeding to freedom of legitimate trade ; whereas this objective is also being pursued through efforts being made along the same lines at international level ; Whereas, in so far as counterfeit or pirated goods and similar products are imported from third countries, it is important to prohibit their release for free circulation in the Community or their entry for a suspensive procedure and to set up an appropriate procedure enabling the customs authorities to act to ensure that such a prohibi- tion can be properly enforced ; Whereas action by the customs authorities to prohibit the release for free circulation of counterfeit or pirated goods () OJ No C 238, 2. 9. 1993, p. 9. () OJ No C 61, 28. 2. 1994. () OJ No C 52, 19. 2. 1994, p. 37. () OJ No L 357, 18. 12. 1986, p. 1. or their entry for a suspensive procedure should also apply to the export or re-export of such goods from the Community ; Whereas, as regards suspensive procedures and re-export subject to notification, action by the customs authorities will take place only where suspected counterfeit or pirated goods are discovered during a check; Whereas the Community takes into account the terms of the GATT agreement on trade-related intellectual property issues, including a trade in counterfeit goods, in particular the measures to be taken at the frontier; Whereas provision should be made that the customs authorities are empowered to take decisions on applica- tions for action to be taken that are submitted to them ; Whereas action by the customs authorities should consist either in suspending the release for free circulation, export or re-export of goods suspected of being counter- feit or pirated or in detaining such goods when they are entered for a suspensive procedure or re-exported subject to notification for as long as is necessary to enable it to be determined whether the goods are actually counterfeit or pirated ; Whereas it is appropriate to authorize the Member States to detain the goods in question for a certain period even before an application by the right holder has been lodged or approved in order to allow him to lodge an application for action by the customs authorities ; Whereas the competent authority should decide cases submitted to it by reference to the criteria which are used to determine whether goods produced in the Member State concerned infringe intellectual property rights; whereas Member States’ provisions on the competence of the judicial authorities and procedures are not affected by this Regulation ; Whereas it is necessary to determine the measures to be applied to the goods in question where it is established that they are counterfeit or pirated; whereas those measures should not only deprive those responsible for trading in such goods of the economic benefits of the transaction and penalize them but also constitute an effective deterrent to further transactions of the same kind ;