Back in 2004, the European Commission announced that, following the Intellectual Property Rights Enforcement Directive part 1 (IPRED1), a second part would be released to refine the measures as appropriate. This second part, IPRED2, would be released once IPRED1 would be implemented in the entirety of Europe, and once the experiences of the impact of IPRED1 would have been gathered.
But it appears that the Commission got impatient after this, and IPRED2 was already drafted early in 2005. However, objections had been raised in front of the European Court of Justice (ECJ) as to whether the European Commission had the competence at all to create criminal legislation for the entirety of the European Union. The ECJ decided that the Commission did not have this competence, and sent several legal documents back to the drafting table, including the IPRED2 directive proposal.
Despite the fact that IPRED1 still was not implemented in all member states and no experience had been gathered, the Commission started anew in 2006 with a new IPRED2 draft. This draft is presented to the European Parliament by Rapporteur Nicola Zingaretti, and has passed the European Council as well as the parliamentary expert gremia JURI, ITRE and LIBE and the plenary vote.
However, the law is not final yet. Due to express requests from parliamentarians, the release of the law in the official journal of the European Union, which would make it legally binding, has been postponed, in order to allow the issues which have been raised to be discussed.
The main problem with IPRED2 is that it is formulated in a way too broad fashion. During the conciliation phase, the legal proposal has already been improved in some way, but the problems remain: IPRED2 imposes criminal sanctions on undisclosed infringements on intellectual property rights. The problems with this have been outlined in a FFII paper called «To Lisbon or to Prison» by the FFII.
There is also a detailed analysis of IPRED2 from Vrijschrift.
IPRED2 is also often referred to as a piece of «Italo-legislation». This is of course not meant as an insult, but it is a consequence from the fact that the Italian legal system works differently from, for example, the German legal system.
In Italy, legislation is always formulated in a very excessive way and then the jurisdiction sorts out the problems with their judgment on the applicability of the legislation. However, in Germany, what is written in law is always applicable and will be applied, so the impact of such broad formulations will be a lot higher in some European countries than in others.
The only possible interpretation for this problem is that the European Union is not ready yet for legislation of such immense importance. Before criminal sanctions can be harmonized, there must be a common basis for interpretation of the legislation.