In order for the legal framework against copyright infringement to become more effective, the enforcement of administrative sanctions has been included in Law 2121/1993 in addition to the already existing civil and criminal sanctions (art. 65A of Law 2121/1993). The aim of the administrative fine is not only to complement the existing legal frame of civil and criminal sanctions but also to remove the motive for infringing copyright and at the same time simplify the whole procedure of enforcing copyright given the fact that payment of the administrative fine stops the penal procedure.
The administrative fine does not depenalize in general infringement of copyright but in some cases, offers the possibility to avoid criminal trial e.g. when infringement of copyright involves a limited quantity, meaning up to 50 illegal copies of computer software and up to 500 illegal CDs. The unconditional payment of the administrative fine by the offender results in the lifting of punishability only if the offence concerns the above mentioned quantity and of course it does not mean that the offender is relieved from the obligation of payment to the copyright holders of royalties, damages and other charges.
It was the legislator’s concern to create a functional procedure of collecting the fine, so as the not to weaken the regulation during its implementation. For this reason, a common ministerial decision was issued, determining the enforcement and collecting procedure and the competent services for the collection of the administrative fine (Decision No 10100/D3B/4020 Official Gazette Α΄/1670/22.8.2007).
Procedure of Enforcement of the Administrative Fine
General
In which cases is the administrative fine imposed?
To those, who, without legal right reproduce, sell, distribute or possess with the intention to distribute computer software or to street vendors who without legal right distribute or possess with the intention to distribute CDs in which a work of intellectual property is embodied (art. 65 par. 1 and 2 of Law 2121/1993).
What if somebody possesses CDs and DVDs?
The provisions of the administrative fine apply only to possession of CDs. For possession of DVDs the criminal procedure is followed, as in the past.
Which are the competent control services for imposing the administrative fine?
- Special Control Service
- Custom Authorities,
- Police Authorities and
- Police Authorities of the Ministry of Merchant Shipping
What is the minimum amount of the administrative fine?
1.000, 00 euros.
How is the level of the administrative fine calculated?
- 1.000,00 euros for each illegal copy of computer software (If 15 illegal copies are found, 15x 1000 euros=15.000 euros)
- 20,00 euros for each illegal CD (If 100 illegal CDs are found, 100 x 20 = 2.000 euros. If, however, 45 CDs are found, the offender will not pay 900 euros (45 x 20 euros) but 1.000 euros which is the minimum).
When is the administrative fine doubled?
In case of recidivist offender within the same fiscal year (independently of whether the offender has paid the administrative fine), the fine is doubled. Meaning, that if someone is arrested twice on 14.3.2008 (first arrest on 10.01.08) with a 100 illegal CDs, the administrative fine will not be 2.000 euros (100 x 20 euros), but 4.000 euros (2.000 euros x 2 = 4.000 euros).
What happens if the administrative fine is paid?
Punishability is lifted and no penal procedure is followed.
When is punishability lifted and no penal procedure followed?
In violations which concern up to 50 copies of computer software and up to 500 CDs and for violations which do not take place by a habitual criminal or on a commercial scale or when the offender is not considered extremely dangerous (art. 66 of Law 2121/1993).
Which are the competent services for the collection of the fine?
- Tax Revenue Offices
- Customs Offices
How is the payment of the administrative fine made?
By the offender himself with the escort of a representative of a competent authority, or by any third party in the name of the offender to the competent services for the collection of the fine. The existence of a VAT number is not necessary, as one can be acquired in the premises of the competent services (POL 1072/5.5.2006 Ministry of Economy and Finance). The copy of the confirmatory act of violation along with a copy of the offender’s testimony can be used as an administrative act of imposition of the fine and collection of the fine can be implemented based on these. The collection receipt constitutes evidence for the payment of the fine. The collection of the fine can be done on working days and hours to the Tax Revenue Offices or Customs Offices, while in the evenings, as well as on holidays to the nearest local Customs Office operating 24 hours a day. If this is not possible, a district attorney has to approve confinement of the offender beyond 24 hours and the fine is paid on the next working day. If the district attorney does not give approval, the procedure of criminal prosecution is followed.
What happens after the payment of the administrative fine?
The seized items are destroyed, after a destruction protocol is drafted, signed by the offender as well. The file case is completed:
- with the payment receipt,
- with the offender’s statutory declaration stating his/her resignation from legal remedies and
- with the protocol of destruction of the seized goods
What if the administrative fine is not paid?
The penal procedure continues as usual. The exact amount of the administrative fine and the offender’s refusal to pay must be mentioned in the accusatory statement. The issuance of imputation act is compulsory and will only be issued by the Regional and Operational departments of the Special Control Service for all control services, with the exception of Customs Offices, which will issue imputation act ex officio for their cases. In said cases the control services will transmit to Special Control Service and the Custom Authorities, a copy of the confirmatory act of violation as well as a copy of the offender’s testimony for the legal issuance of the imputation act.
Inspector’s actions of the aforementioned services, in case of violation of art. 65A par. 1 and 2 Law 2121/1993.
- For illegal copies of computer software:
- o Drafting of a confirmatory act of violation (Annex I)
- The violation can be confirmed anywhere.
- The quantity of illegal copies is mentioned.
- The administrative fine is mentioned, which is 1.000,00 euros for every illegal copy of computer software. In case of a recidivist offender the fine is doubled (the commitment of the same violation within the same fiscal year will appear in a relevant database that will shortly be hosted in OPI’s servers).
- The administrative fine is imputed on the company’s legal representative and the logistics’ supervisor, if appointed.
- Signing of the confirmatory act of violation by the inspectors of the competent control services and authentication by the competent supervisor.
- Immediate service to the offender and notification about the beneficial provisions of art. 65A and 66 of Law 2121/1993.
- Drafting of a Seizure Report containing a detailed description of the illegal computer software or servers.
- Temporary impounding of computer software and servers is allowed for a reasonable lapse of time until an expert is called to bring down any doubts.
- In case personal data issues are posed, a relevant permission from the competent, independent authority must be obtained, unless other legal provisions provide otherwise.
- After the drafting of the confirmatory act of violation the full data of the closed cases must be transmitted to OPI.
- Serving of a summons for hearing to the offender (Annex II).
- Reception of the offender’s views within the limits of the flagrant crimes procedure.
- If the fine is paid: the offender’s views are attached to the confirmatory act of violation and are sent to Tax Revenue Office or Custom Services
- If the fine is not paid: the offender’s views are sent to the competent service responsible for issuing the imputation act together with a copy of the summons for hearing.
- If the administrative fine is paid, the offender must provide a statutory declaration of law 1599/1986, where his/her resignation from legal remedies is stated.
- o Drafting of a confirmatory act of violation (Annex I)
- For illegal copies of CDs:
- Drafting of a confirmatory act of violation (Annex I).
The violation can only be confirmed in relation to street vendors.- The fine is 20 euros for each illegal CD. The minimum amount, however, that must be paid is 1.000 euros (so even if the offender possesses 15 CDs x 20 euros = 300 euros, he will have to pay 1.000 euros). In case of a recidivist offender the fine will be doubled (the commitment of the same violation within the same fiscal year will appear in a relevant database that will shortly be hosted in OPI’s servers).
- Signing of the confirmatory act of violation by the inspectors of the competent control services and authentication by the competent supervisor.
- Immediate service to the offender and notification about the beneficial provisions of art. 65Α and art. 66 of Law 2121/1993.
- Drafting of a Seizure Report containing a description of the illegal CDs (it is not necessary to mention all the titles of the musical works, the phonographic company of production and the names of the performers (Ref. 1899/2004 fifht penal dpt).
- After the drafting of the confirmatory act of violation the full data of the closed cases must be transmitted to OPI.
- Serving of a summons for hearing to the offender (Annex II).
- Reception of the offender’s views within the limits of the flagrant crimes procedure.
- If the fine is paid: the offender’s views are attached to the confirmatory act of violation and are sent to Tax Revenue Office or Custom Services
- If the fine is not paid: the offender’s views are sent to the competent service responsible for issuing the imputation act together with a copy of the summons for hearing.
- If the administrative fine is paid, the offender must provide a statutory declaration of Law 1599/1986, where his resignation from legal remedies is stated.
- Drafting of a confirmatory act of violation (Annex I).
For additional information and/or clarification, please contact OPI:
Tel. 213 214 7800, Fax: 210 82 53 732,
Metsovou Str., 106 82 Athens, e-mail: info@opi.gr