Under the provisions of the Anti-Piracy Regulation (APR, Regulation (EC) 1383/2003), national customs authorities in the EU have the right to detain or suspend the release of goods if the goods are suspected of infringing an intellectual property (IP) right. The APR covers almost all IP rights, including patent, trademark and design rights as well as copyright. The APR does not apply to goods moving within the EU and legitimate parallel imports. In the Netherlands, not without controversy, the APR has also been applied to in transito goods: goods merely transiting the Netherlands from one country outside the EU to another country outside the EU. Seizures of generic medicines in transito by Dutch customs set off a worldwide debate.

Following questions in November 2009 from the UK Court of Appeal and the Antwerp Court of First Instance, the European Court of Justice (ECJ) now will answer the question of whether or not (Dutch) customs authorities are rightfully detaining goods in transito with the APR as legal basis. Prior to the ECJ’s judgment, Advocate General Cruz Villalón delivered his advisory Opinion on 3 February 2011. In his Opinion, AG Cruz Villalón held that customs may seize in transit goods in the EU if "there are sufficient grounds for suspecting" the goods are counterfeit and are to be put on the market in the EU, either in conformity with a customs procedure or by means of illicit diversion. Once the decision of the ECJ is published, which may still be this year, it will be included in our future Europe Updates or Legal Alerts.

Our Legal Alert on the Opinion of the ECJ Advocate General