Increase in legal protection against counterfeit pesticides in Poland
Trading with counterfeit plant protection products is not only a negative economic phenomenon, but also it is a major threat to human life and health and to the environment. The use of illegal pesticides of unknown composition, often manufactured under substandard conditions and from dangerous substances, can lead to enormous damage to the plant world, poison animals and humans.
By an amendment of February 2020 (which entered into force on March 14, 2020), few provisions were added to the Law of March 8, 2013 on Plant Protection Products (PPP Law) on criminal liability related to the circulation of illegal pesticides. Until March 14, 2020, that liability could only be enforced under other laws: Criminal Code, Industrial Property Law, the Law on Combating Unfair Competition.
Article 75c of the PPP Law, added by the amendment of February 2020, criminalizes the manufacture, packaging, placing on the market, as well as movement, storage and use of a counterfeit plant protection product, a product imitating a plant protection product, and a plant protection product not authorized for use in any EU member state or third country.
The definition of a counterfeit plant protection product is included in Article 2(26) of the PPP Law, according to which a counterfeit pesticide is a plant protection product, excluding a plant protection product with an unintentional quality defect, presented as having been authorized for placing on the market in a member state of the European Union, any component of which specified in the documentation for that plant protection product has been removed in whole or in part, added or altered, or which has been manufactured by an entity other than that specified in that documentation.
The law does not contain a legal definition of the other two terms used in the provision of Article 75c (a product imitating a plant protection product and plant protection product not authorized for use in any EU member state or third country), which means that they must be interpreted literally. However, in the practice of the State Inspectorate for Plant Protection and Seed Inspection (Państwowa Inspekcja Roślin i Nasiennictwa, shortly – PIORiN), a definition of an imitating product has been developed, according to which definition such a product is a product that impersonates a plant protection product, but does not have its properties (e.g., is an adhesive, oil, solvent, water…).
Packaging under the PPP Law is the packaging or repackaging, or labeling or relabeling of a plant protection product (Section 2(18) of the PPP Law), while placing on the market under this act is the holding for the purpose of sale within the Community, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves, but not the return to the previous seller. Release for free circulation into the territory of the Community shall constitute placing on the market for the purposes of this Regulation (Section 2(10) of the PPP Law and Section 3(9) of the Regulation (EC) No 1107/2009 of the European Parliament and of the Council).
Art. 75c of the PPP Law may be in cumulative concurrence (Article 11 of the Criminal Code) with a number of crimes specified in the Criminal Code (including crimes covered by Articles 165, 171, 182, 306), as well as with Article 305 of the Act of June 30, 2000 – Industrial Property Law (IP Law).
Paragraph 1 of Article 305 of the IP Law criminalizes conduct undertaken with the aim of placing goods on the market by marking them with a counterfeit trademark or a registered trademark that one has no right to use, as well as trading with goods marked with such marks. Paragraph 2 of this article provides for a so-called case of less serious, while paragraph 3 provides for a situation where the perpetrator has made a regular source of income out of the crimes specified in paragraph 1, or commits this crime forward goods of significant value.
The definition of a counterfeit trademark is contained in Article 120(3)(3) of the IP Law, according to which it is unlawfully used mark that is identical or that cannot be distinguished under ordinary trading conditions from different registered mark, for goods covered by the right of protection. Trading should be understood as criminalizing every stage of trading in goods (judgement of the District Court in Warsaw, March 13, 2014, ref. IX Kz 149/14). A permanent source of income does not have its own legal definition. The jurisprudence indicates that constancy is evidenced, among other things, by the long-term nature of the practice, and it is irrelevant whether the perpetrator has any other sources of income (judgment of the District Court in Toruń, April 7, 2022, ref. II K 1875/21). The income earned may even be small (judgment of the Supreme Court, February 19, 1966, ref. I KR 213/65). It is impossible to assume the fulfillment of this crime if the perpetrator has not obtained any pecuniary benefit (judgment of the District Court in Warsaw, November 19, 2020, ref. XVIII K 318/19). Goods of significant value should be interpreted by the definition in Article 115 § 5 of the Criminal Code, according to which property of significant value is property which value at the time of committing the crime exceeds PLN 200,000.
It is most likely that Article 75c of the PPP Law and Article 305 of the IP Law will be in cumulative concurrence in most cases. It is easy to imagine, for example, a situation where the perpetrator, while manufacturing, packaging or marketing a counterfeit plant protection product, simultaneously (as part of the same behavior) places on the market goods bearing a counterfeit trademark. If the counterfeit plant protection product is simultaneously marked with a counterfeit trademark (in order to best “impersonate” from consumer’s pespective a genuine plant protection product), the perpetrator by one and the same behavior will fulfill the elements of both crimes at the same time, which will oblige the trial authority to adopt both provisions in the legal qualification of the act charged against the accused and “combine” them using the mechanism of Article 11 of the Criminal Code. Such examples can be multiplied.
We believe that the new criminal provisions will significantly enhance protection against illegal pesticides on the Polish market. It is important to indicate all provisions of law in a motion for prosecution or notification of commitment of an offence so that the police know that the preparatory proceedings should be conducted on the basis of all provisions that may be applied in a particular matter. So far a lot of preparatory proceedings have been discontinued and one of explanations was lack of provisions related directly to counterfeit pesticides. The legislator did his job in Poland, now it is time for police and prosecutors offices to implement the new provisions!
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