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Alexandros Antoniou, University of Essex School of Law, a.antoniou@essex.ac.uk

On 12 July 2019, the EU General Court (GC) dismissed an appeal (Audimas v EUIPO - Audi (AUDIMAS)) from a Lithuanian sportswear company, whose trade mark was successfully opposed by the German automobile manufacturer Audi.

Background

In October 2014, the applicant, Audimas AB, obtained through the World Intellectual Property Organisation (WIPO) an international registration for the mark displayed below, designating the European Union (EU) as one of the protection territories.

The mark above represents the applicant company’s name in black font, with stylised open and closing brackets right above the word element. Registration was sought for classes 18, 25 and 35 of the Nice Agreement, covering a wide variety of leather goods, clothing, footwear and headgear as well as advertising and business management services. In June 2015, the international registration designating the EU was notified to the EU Intellectual Property Office (EUIPO), pursuant to the provisions of the Council Regulation 207/2009 on the Community Trade Mark (now replaced with Regulation 2017/1001 on the EU Trade Mark).

In August 2015, the German automotive company AUDI AG opposed the mark applied for on the basis of its previously registeredEU word mark ‘AUDI’ for goods and services falling in classes 18, 25 and 35 of the Nice Agreement as well as class 12, which covers vehicles and vehicle components. Audi claimed, in particular, infringement of Article 8(1)(b) of the 2009 Regulation, i.e. invalidity based on ‘relative grounds’ which relate to conflicts with earlier trade mark rights that belong to third parties (these provisions are preserved under the new 2017 Regulation). The Opposition Division of the EUIPO upheld the opposition two years later. Audimas appealed the decision in November 2017 but the Office’s Second Board of Appeal rejected the appeal in May 2018 (‘the contested decision’).

Specifically, the Board of Appeal found that the relevant public in this case consisted of ‘professional customers' and 'end consumers', whose level of attention varied from medium to high. In addition, the signs at issue were broadly similar at least to the extent that Audi’s earlier mark was reproduced in full in the dominant element of the applied-for mark. The Board also considered that a Spanish-speaking consumer would break down the mark applied for in two verbal parts, i.e. ‘audi’ and ‘mas’, because the latter element alluded a meaning to them, namely 'more' or ‘plus’. Moreover, the figurative element of the brackets was found to be ‘purely ornamental’ and its combination with the term ‘mas’ meant that the mark in question was at best only weakly distinctive. The Board of Appeal ultimately concluded that there was a likelihood of confusion for the Spanish-speaking part of the relevant public within the meaning of Articles 8(1)(b) of the 2009 and 2017 Regulations.

The legal framework and applicable principles

Under both Regulations 2009 and 2017, an opposition must be based on rights held by the opponent in an earlier trade mark (or other form of trade sign). The grounds on which an opposition can be based are called ‘relative grounds for refusal’, the relevant provisions of which are found in Article 8 the Regulation. By contrast to ‘absolute grounds for refusal’, which are examined ex officio by the EUIPO, relative grounds for refusal are inter partes proceedings based on the likely conflict with earlier rights. This means that the burden falls on the owner of earlier rights who needs to be vigilant in checking the filing of potentially conflicting EUTM applications and oppose the registration of marks when necessary.

More specifically, under Article 8(1)(b):

upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not to be registered if, because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

Audimas contested the Board of Appeal’s findings in relation to the comparison of the signs and the existence of a likelihood of confusion. According to the established case law of the Court of Justice on the interpretation of Article 8(1)(b), the risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings, constitutes a likelihood of confusion (see Canon [1998] EUECJ C-39/97). The likelihood of confusion on the part of the public must be appreciated globally, according to the perception of the marks in the mind of the average consumer of the goods or services concerned. It is also settled case law that the average consumer normally perceives a mark as a whole and does not proceed to examine its various details (see Sabel [1997] EUECJ C-251/95). Consequently, the visual, aural and conceptual similarities of the marks must be assessed with reference to the overall impression created by the marks bearing in mind their distinctive and dominant components. Account must be taken of all factors relevant to the circumstances of the case and, in particular, the similarity between the marks and the goods or services. A lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (see Lloyd Schuhfabrik Meyer [1999] EUECJ C-342/97). Where the earlier trade mark has a highly distinctive character, such as Audi’s mark in the present case, either because of its intrinsic qualities or because of the use that has been made of it, the likelihood of confusion is greater.

The level of attention of the relevant public

The GC disagreed with the applicant’s claim that buyers of Audi cars would demonstrate an increased level of attention, which would in turn decrease the likelihood of confusion between the marks at issue. Indeed, the prospect of an expensive purchase, e.g. in the case of luxury products, is a good reason for the average consumer to be more circumspect in relation to the origin and the quality of the articles concerned. A high degree of attention is likely to be displayed during the purchasing process of a specific product which is generally regarded as reflecting its owner’s social status. Nevertheless, both Audi’s earlier mark and Audimas’ applied-for mark extended to clothing and footwear as well. These are mass consumption goods, which are frequently purchased and used by the average consumer who nevertheless still pays a fair degree of attention in choosing them, albeit not above average (see Esprit International v OHMI-Marc O'Polo International [2011] EUECJ T-22/10). Thus, the Board of Appeal was not wrong in assessing the relevant public’s attention in the present case as varying from medium to high.

The goods and services concerned

The goods and services covered by Audimas’ mark were deemed at least in part identical or similar to those covered by Audi’s earlier mark. This conclusion was not disputed by the applicant and was approved by the GC.

The comparison of the signs and the likelihood of confusion

The GC agreed with the Board’s ruling that the dominant element of the applied-for mark was the fanciful term ‘audi’, since the second verbal element of the applied-for mark, i.e. ‘mas’, was already well-known to Spanish speakers and had a lower distinctive character. Moreover, the figurative element of the brackets was not, in the GC’s view, ‘particularly original or elaborate’. As such, it did not add anything ‘striking’ to the overall impression created by it in the perception of the relevant public.

The visual similarity between the marks was reinforced by the fact that both shared the ‘audi’ element which constitutes the earlier mark and is found at the beginning of the applied-for mark. This is consistent with previous case law, according to which the fact that a mark consists exclusively of the earlier mark to which another word is attached is an indication of the similarity between those two marks (see Fon Wireless v EUIPO-Henniger [2016] EUECJ T-777/14). On the phonetic level, the degree of similarity between the marks was found to be essentially ‘greater than average’, notwithstanding the different pronunciation given to the contested mark by the syllable ‘mas’. It is also a settled principle that both verbally and phonetically the average consumer generally pays more attention to the beginning of the mark than its ending, since the first part of a trade mark normally has a greater impact than the final part (see L'Oréal v OHMI-SPA Monopole [2009] EUECJ T-109/07and Gappol Marzena Porczynska v EUIPO-Gap[2017] EUECJ T-411/15). Finally, the GC noted that the absence of conceptual similarities between the two signs should not deflect attention from their substantial visual and phonetic similarities and concluded that they were ‘broadly similar’.

In the GC’s view, the Board’s conclusion that the Spanish-speaking part of the relevant public would eventually establish a link between the contested mark and Audi could not be called into question. The Board of Appeal had held, and the GC agreed, that it could not be ruled out that the applied-for mark, with its element ‘mas’ attached to the word ‘audi’, could be taken to identify an exclusive series of goods or services of the Audi family of brands. The relevant public could perceive the ‘Audimas’ mark as a ‘particular variant’ of the earlier mark for a specific type of goods with a positive quality. In light of the foregoing, the GC dismissed the applicant’s action.

Commentary

In sum, the GC upheld the original EUIPO decision, ruling that the applied-for mark by Audimas would likely be confused with Audi’s earlier trademark. The upheld contested decision is undoubtedly a victory for Audi, one of the world leaders in the automotive sector. On the other hand, Audimas has become, since its incorporation in 1931, one of the market leaders in the design and manufacture of sports and active lifestyle apparel in the Baltic States. The brand has been cooperating with the Lithuanian National Olympic Committee as an official supplier of sportswear for the Lithuanian Olympic family for more than 15 years. In 2013, Audimas also began sponsorship of the Belarus National Olympic Committee. This is certainly a displeasing for them outcome, which might be appealed to the Court of Justice of the EU.

Despite Audi’s weak connection to the clothing industry, the GC’s ruling can hardly be a surprise. It is grounded in some well-established principles relating to the comparison of signs in trade mark disputes. When assessing their similarity, the marks in question will be considered as a whole. Although it is not possible to isolate and focus exclusively on one component of a complex mark and compare it with another mark, the assessment of similarity may be made solely on the basis of the dominant component of a complex mark where all the remaining components of the mark – like the brackets and the element ‘mas’ in this case – add very little to, or are negligible in, the overall impression produced by it.

In addition, where a complex mark comprises word and figurative elements, the former would in principle be considered more distinctive than the latter, because the average consumer tends to refer to the goods or services in question by quoting the name of the mark in question, rather than by describing its figurative element (see Coca-Cola v OHMI-Mitico [2014] EUECJ T-480/12). The shared ‘audi’ element was incapable in this instance of lending the applied-for mark a distinctive character and accentuated the likelihood of confusion. Also, the presence of a few different syllables is not always enough to exclude the existence of a phonetic similarity between two signs. In the present case, the phonetic difference between the signs at issue, resulting from the addition of a second syllable ‘mas’ in the applied-for mark, was not sufficient to overcome and preclude the phonetic similarity between ‘Audi’ and ‘Audimas’ taken as a whole.

These opposition proceedings also confirm that, if a likelihood of confusion between two conflicting rights relating to the EU is established in a specific linguistic area, this is enough for the registration of the later mark to be refused. When an opposition is filed pursuant to Article 8(1)(b) and a likelihood of confusion can indeed be found on a substantial part of the public, the reasoning of the decision typically concentrates on that part of the public that is most prone to confusion, making the examination of the perception of the marks in several languages redundant. In addition, where the relevant public consists of both professional and general consumers, the finding of a likelihood of confusion in relation to just one part of the public is enough to uphold an opposition.

Finally, the outcome serves as a useful reminder of the need to conduct comprehensive trademark searches prior to filing a trade mark application, which needs to be carefully tailored to in order to maximise the chances of a successful registration. Opposition hearings can be very costly to defend. If unsuccessful, an applicant will have to pay not only their legal costs but some of the costs of the other party too – and will still not be able to achieve registration of their mark.


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Professor Steve Peers, University of Essex

I’ve taught EU law and human rights for over twenty years now, and the issue of sanctions against Member States for human rights breaches used to be the easy bit. Why? Because the procedure to enforce such sanctions (set out in Article 7 TEU) had never been used – and there was no apparent prospect that it ever would be. So there was no need to discuss it in any detail. A more theoretical sort of academic might have spent time counting the angels on the head of this constitutional pin, but I was anxious to move on to the real world issues of arrest warrants and asylum seekers.

Everything has since changed. Like Article 50 – which similarly raises fundamental issues about the EU’s relationship with its Member States – Article 7 was apparently dashed off in previous Treaty amendment talks without much thought to its detailed application in practice, perhaps because its authors thought it would never be used. Yet here we are, with both Articles now a live political and legal issue: the Ragnarok of EU law.

There are two recent parallel major developments. First of all, the Article 7 process has been triggered both against Poland (by the European Commission) and Hungary (by the European Parliament). Secondly, there are case law developments raising general questions about Member States’ observance of human rights and the rule of law outsidethe very specific (and very political) Article 7 process. In this context, last week the CJEU delivered its first judgment that a Member State is infringing judicial independence by means of reforms to its judicial system (see discussion here).

The prospect of the EU sanctioning its Member States for breaches of human rights and the rule of law raises a number of fundamental legal and political issues – and is best understood in a broader historical context. In light of the recent developments (and ongoing disputes), this is an opportune moment to provide an overview and analysis of this issue.

I’ll do this in a series of three blog posts, addressing in turn:

a)      the legal framework for sanctions under Article 7
b)      the overlap of the sanctions rules with other aspects of EU law
c)       the historical context and broader constitutional dynamics.

The legal framework for sanctions

Although many people refer to Article 7 TEU, there are other Treaty provisions which are inextricably linked: Article 2 TEU sets out the values which Article 7 is used to enforce; Article 354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the normal rules of EU law, discussed in the second blog post.

First of all then, what are the values of the EU, legally speaking? Article 2 TEU states:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 then sets out the process of enforcing those values. It begins with Article 7(1), which provides for a kind of ‘yellow card’ – a warningif there is there is ‘a clear risk of a serious breach’ of those EU values:  

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Notice that the ‘yellow card’ process can be triggered by the European Parliament, or a group of Member States, or the Commission. There is no requirement of unanimity of Member States to approve a Council decision to issue a ‘yellow card’ (this is a common misunderstanding), but the threshold of four-fifths of Member States’ governments in the Council is nevertheless fairly high. Triggering the process (as the EP did for Hungary, and the Commission did for Poland), does not, as some think, mean that the Council will agree to issue a ‘yellow card’, or has done so already. Indeed, the Council is still considering the proposals to issue a ‘yellow card’ against both Poland and Hungary, having held several of the hearings referred to in Article 7(1). If the Council ever did issue a ‘yellow card’, note that this does not entail a sanction as such: it is only a finding of a riskto EU values, with possible recommendations. Nevertheless, the issue of a ‘yellow card’ is perceived as extremely politically serious.

This brings us to Article 7(2), which is the ‘red card’ of the process:

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

The procedure here is even tougher: unanimity of the Member States. The European Parliament cannot trigger the process, but could veto it  if the Commission or a group of Member States trigger it. The threshold to be met is higher: not just the risk of a serious breach, but the ‘existence of a serious and persistentbreach’ of those values. It’s likely that the EU would get to the ‘red card’ stage after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight red’, for (say) a country which had suddenly undergone a military coup, is also conceivable.

What are the consequences of a ‘red card’? Article 7(3) sets them out:

…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

Notice that the Member States don’t have to act unanimously in the Council when deciding exactly what sanctions to apply to the black sheep amongst them. The unanimity threshold only applies when taking the previous step of deciding whether there’s a serious and persistent breach of the EU values.  As for the specific sanctions which might be imposed, the Treaty mentions suspension of voting rights, but that’s just one example. The Council might instead (or additionally) impose other sanctions, such as suspension of MEPs’ voting rights (which raises the awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in question – whose voices would ideally need to be heard). However, there’s an obligation to consider the rights of individuals and businesses, which suggests that trade sanctions might be problematic. It might also be hard to justify restricting free movement rights, but in any event note that there are specific rules on asylum for EU citizens fleeing from a Member State subject to a ‘red card’. (I discuss them further in the second blog post).

Most significantly, there’s no provision to expel a Member State from the EU as such. Having said that, a Member State subject to suspension might be so outraged to be in that position that it triggers the process of leaving the EU under Article 50. The UK’s withdrawal process has been complicated and controversial enough; now imagine the legal and political complexities of a Member State subject to an Article 7 ‘red card’ triggering Article 50. Should its political authorities’ actions be considered legally and morally valid? What if a group of exiles claim to be the legitimate government of that Member State (a la the USSR-era Baltic States), and that purported government does not wish to leave the EU?  What if a part of that Member State, at odds with the government in power over EU membership and its violation of EU values, attempts to secede?

Of course, the possibility of withdrawal (alongside concerns about sovereignty, and the workings of partisan politics) may also have influenced the pronounced reluctance of the EU to use the Article 7 process. Does the EU really want Michel Barnier’s main task to be crowd control?

Article 7(4) TEU then provides that the Council, again by qualified majority, may ‘vary or revoke’ its sanctions against a Member State ‘in response to changes in the situation which led to their being imposed’. Article 7(5) notes that the rules on voting within the institutions when Article 7 is being applied are set out in Article 354 TFEU. The latter provides that the Member State which is the subject of potential sanctions has no vote at any stage of Article 7, as otherwise this would obviously have made the adoption of any decision on breach of EU values impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision. Where the Council votes to implement a ‘red card’ decision, a higher threshold for adopting EU laws applies (72% of participating Member States in favour, instead of the usual 55%). If a Member State’s voting rights are suspended, the usual rules on Council voting with only some Member States participating apply. For its part, the EP ‘shall act by a two-thirds majority of the votes cast, representing the majority of its component Members’.

Finally, Article 269 TFEU significantly limits the role of the CJEU over the sanctions procedure:

The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.

The legal issues

Given the limit on judicial control of the Article 7 process, it is almost entirely political. So the legal questions arising from it may be largely hypothetical in practice. However, they do exist.

The first important point is the wide scope of issues which can be the subject of the Article 7 process. It is sometimes claimed that the process can only be used to sanction Member States for breaches of EU law, but this is clearly false. There is no reference to EU law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7 would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet other provisions of the Treaties (discussed further in the next blog post) give the Court extensive jurisdiction over the enforcement of ordinary EU law.

This claim about the limited scope of Article 7 is also absurd if you consider the broader context. Imagine, for instance, a Member State placing LGBT citizens in concentration camps. A narrow interpretation of Article 7 would mean that the EU could only complain about this to the extent that being locked up in camps would have a discriminatory effect on the detainees’ access to employment. Yes it would, but that would hardly be the most outrageous aspect of detaining LGBT people in camps because of their sexual orientation. (EU law is also relevant to LGBT refugees, but the Article 7 process would have to be triggered first for it to be relevant to refugees who are EU citizens).

So obviously Article 7 is not intended to be limited in this way. Indeed, its broad scope partly explains why the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on issues which are not normally within the scope of EU law. (Another reason is the intention to keep the Article 7 process in the hands of politicians, not judges).

On the other hand, the Article 7 process and ordinary EU law can overlap. The Court can use its ordinary jurisdiction to rule on an issue being discussed in the Article 7 process, and vice versa. This was confirmed implicitly in last week’s judgment on Poland and the rule of law, given that the issues in that judgment also formed a part of the Commission’s Article 7 case against Poland. In fact, the Advocate-General’s opinionaddressed the overlap explicitly (paras 48-50), arguing that ‘[t]here are firm grounds for finding that Article 7 TEU and Article 258 TFEU are separate procedures and may be invoked at the same time’.  As noted already, this alternative option of using ordinary EU law to restrain Member States’ breaches of human rights or the rule of law is discussed in the next blog post in this series.

Exactly how does the Court’s limited jurisdiction over Article 7 work? The wording of Article 269 TFEU definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first sight, it also applies to the implementationof sanctions, since the text refers to any Council actions pursuant to Article 7 TEU. But on this point, the use of the word ‘determination’ is confusing, as Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values have been (or might be) breached.

Note also that the only possible challenger is the Member State sanctioned under Article 7 – not any other Member State, an EU institution, or an individual or business. If individuals are barred from challenging the validity of Article 7 implementation decisions, even indirectly via national courts to the CJEU, how else can the Council’s obligation to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ be enforced? At any rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing sanctions, which could be significant in working out the impact of sanctions on individuals. In particular, if Council decisions under Article 7 disapply ordinary EU law in some way, there should be no objection to the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.

A Court judgment under Article 269 TFEU can only address procedural issues, not substance. In other words, the Court cannot be asked to rule on the question of whether the Member State concerned has actually breached EU values (or seriously risks breaching them). As we will see in the second blog post, however, the developing case law on the overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little diffuse. Also, one can imagine that a Member State may make arguments about the fairness of the hearings, even where (as in the case of Poland and Hungary) some hearings have been held. Finally, the time limits in Article 269 require significant fast-tracking: the challenge must be made one month after the determination (the usual deadline to bring an action to challenge an EU act is two months after publication) and (uniquely in EU law) one month for the Court to give its ruling.  

Even though Article 7 has not resulted in any sanctions decision yet, some issues about its scope may be addressed in the near future, because Hungary has brought a legal challenge to the European Parliament’s decision merely to trigger Article 7. This case might be inadmissible, because usually it is not possible to challenge the start of an EU legal procedure, but only a legal act once adopted, which may explain why Article 269 TFEU makes no reference to challenging acts of the European Parliament at all (or indeed, to challenging acts of the Commission or the Member States). The substance of the Hungarian government’s argument is that the European Parliament wrongly ignored abstentions when counting votes cast to trigger the Article 7 process.

One key legal and political question is the interpretation of the unanimity requirement to issue a ‘red card’ determination of a serious breach of EU values. Some have suggested that since two Member States are facing Article 7 procedures, and they would have a natural tendency to stick together and vote for each other, unanimity can never be reached. Therefore, for the ‘red card’ procedure to be effective, it must be interpreted to mean that any Member State facing an Article 7 procedure must lose its vote even as regards issuing a ‘red card’ against anotherMember State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘theMember State in question’ not voting in its own case – clearly using the singular, as well as the definite article. There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps of legal fancy are particularly inappropriate when a main point of the process is to ensure protection of the rule of law in the European Union.

Conclusions

Article 7 TEU recently turned 20 years old. It was conceived as a political process par excellence, and it remains supremely political at childhood’s end, even as the first attempts to trigger it are made. Due to its impact on national sovereignty, and the web of transnational partisan politics in which the governments concerned are embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a political emergency such as a military coup. Although the attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this version of the process is perceived as politically ‘nuclear’ too.

The obvious problem here – which the ‘yellow card’ reform sought but failed to address – is that democracy rarely collapses overnight. In the famous words of Michael Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it arrives as your friend’ – promising to:

…restore your honour, 
make you feel proud, 
protect your house, 
give you a job, 
clean up the neighbourhood, 
remind you of how great you once were, 
clear out the venal and the corrupt, 
remove anything you feel is unlike you...

And to that end, and for those reasons, it often gains a foothold through the democratic process. Yet the values of the EU to be protected also include democracy – and the Article 7 process is in the hands of the governments of fellow Member States. All have some skeletons in their own closet; and all have backs that might need some scratching by the governments of the States being criticised.

So is the Article 7 process doomed? In fact, the expansion of EU law in areas with significant relevance to human rights – and the willingness of the CJEU to rule on the judicial independence of national courts in general – means that recourse to the nuclear option may arguably not be necessary. In effect, the conflict over the protection of human rights and the rule of law in Member States can also be fought by conventional means: the ordinary system for the enforcement of EU law as such, to which we will turn in the second post in this series. As for the broader tension when concerns about the rule of law and human rights stem from a democratic outcome, this will be assessed as part of the broader discussion in the third post.  

Barnard & Peers: chapter 9
Photo credit: euobserver

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Laurent Pech, Professor of European Law, Middlesex University London

Sébastien Platon, Professor of Public Law, University of Bordeaux

Imagine a faraway land where a government and a parliament dominated by the same party decide to retroactively lower the retirement age of the judges working for the country’s supreme court. Imagine that this change is being presented as a “reform” (allegedly) needed to hold to account judges (allegedly) “shamefully involved” in the country’s previous communist regime which however ended about thirty years ago. Imagine that all of this done with authorities claiming “there is nothing going on in [the country] that contravenes the rule of law” as “judges should always be on the side of the state”.

Surely we cannot be talking about a country belonging to the EU. Sadly, you would be wrong to think so. Indeed, the retirement measure described above was at the heart of the infringement action initiated by the European Commission against Poland last July and which resulted, earlier this week, in the European Court of Justice’s first ruling on the compatibility with EU law of one of Poland’s so-called “judicial reforms”. 

This post will explain the extent to which the Court’s ruling may be considered a landmark one, and the Court’s main findings, before assessing the ruling’s immediate and potential impact.

1. A landmark ruling

For the very first time, the Court of Justice has found a national government to have failed to fulfil its obligations under the second paragraph of Article 19(1) TEU which provides that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” This is far however from the only “EU law first” one may “credit” to the current Polish authorities:

-          Poland was indeed the first ever EU Member State to be subject to the Commission’s Rule of Law Framework in January 2016;
-          The first EU Member State to be threatened with the payment a fine of at least €100,000 per day in November 2017 by the ECJ should it continue to ignore an interim order adopted by the same Court in July 2017;
-          The first EU Member State to be subject to Article 7(1) TEU proceedings in December 2017;
-          The first EU Member State to have seen its “judicial reforms” provisionally suspended by the ECJ via two interim orders adopted in Octoberand December2018.

It has now become the first EU Member State to have been found by the ECJ to have failed to fulfil its Treaty obligations by violating both the principles of the irremovability of judges and judicial independence.

As will be shown below, the Court has forcefully and compellingly rejected each one of claims made by the Polish government, including the most recurrent one whereby the Court of Justice would lack jurisdiction to review the multiple, never-ending changes made to the organisation of the Polish judiciary.

2. The Court’s findings

2.1 Organisation of the Polish national justice system as an allegedly exclusive competence immune to EU review

According to the Polish government, supported by the Hungarian government, the organisation of the national justice system constitutes a competence reserved exclusively to the Member States, which would imply that that EU institutions, including the Court of Justice, cannot examine Poland’s “judicial reforms” in light of EU law requirements.

The Court easily explains why this argument cannot survive any serious scrutiny and does so by initially and unusually reminding the Polish government that “as is apparent from Article 49 TEU, which provides the possibility for any European State to apply to become a member” of the EU, Poland “freely and voluntarily committed” itself to respecting and promoting “the common values referred to in Article 2 TEU”, including the rule of law (§ 42). Furthermore, while the Court agrees that “the organisation of justice in the Member States falls within the competence of those Member States”, this obviously cannot be construed as a carte blanche to violate its EU law obligations, not to mention the fact that requiring Poland to comply with its EU law obligations is not akin in any way to exercising “that competence itself” (§ 52). This is merely a reminder of the longstanding difference between the applicability of EU law and the competence of the EU, which explains why EU law can apply in situations where the EU has no competence to legislate.

With respect to the Polish government’s argument that the EU principle of judicial independence can be applicable only in situations governed under EU law, the Court merely reiterates what it previously held in the Portuguese judges ruling. National authorities must respect the principle of judicial independence even in situations where national “judicial reforms” do not implement EU law. Article 19(1) TEU indeed covers any national court which may rule “on questions concerning the application or interpretation of EU law”, in which case any national measure affecting the independence of the said court falls within the fields covered by EU law.

In the present case, it was obvious that Article 19(1) TEU was applicable as it was common ground that Poland’s Supreme Court “may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a ‘court or tribunal’, within the meaning of EU law, it comes within the Polish judicial system in the ‘fields covered by Union law’ … so that that court must meet the requirements of effective judicial protection” (§ 52). It follows that Polish authorities cannot adopt measures which undermine its independence without activating the application of EU law.

2.2 The lowering of retirement age as allegedly required to bring the Supreme Court’s retirement regime in line with the general retirement regime

According the Polish government, it follows from the Court’s own case law, that “that the Member States retain the option to adapt the employment conditions applicable to judges and, thus, their retirement age, in particular in order, as in the present case, to bring that retirement age into line with that provided for in the general retirement scheme, while improving the age structure of officers of the court concerned” (§ 67).

Anyone familiar with the situation in Poland would have immediately found this defence rather surprising. Indeed, the ruling party “has long rallied against what it calls a self-serving “caste” of judges who distort justice for ordinary citizens”. Furthermore, the Polish government’s own “White Paper” of March 2018 indicates that “the reform of judicial retirement age is justified with historical experiences of communism, the failure to account for the past for many years, and pathological [sic] mechanisms of the functioning of courts that have been perpetuated for years” (para 99).

Not unsurprisingly, the ECJ easily came to the conclusion that the forced early retirement of Supreme Court judges is not compatible with the principle of irremovabilily, which is a guarantee of independence. While phrasing this delicately, the Court all but explicitly states that the Polish government has deliberately sought to mislead it when it refers to the information contained in the “explanatory memorandum to the draft New Law on the Supreme Court” and on the basis of which one may have “serious doubts as to whether the reform of the retirement age” was not in fact made “with the aim of side-lining a certain group of judges of that court” (§ 82).

The Court could have stopped there but if only to make it clearer to any future government which might be tempted to follow a similar path, the Court proceeds to perform a proportionality test. In a few words, the Court sees no reason why, for the sake of standardising retirement age, the judges of the Supreme Court should be forced into retirement when all other workers have a right to retire (or not) before holding that the lowering of retirement age with immediate effect, without any transitional measure, is in any event disproportionate.

2.3 Discretionary prerogative granted to the Polish President as (allegedly) required to protect the judiciary

While possibly difficult to believe, the Polish government claimed that “the authorisation conferred on the President of the Republic to decide as to whether to allow” Supreme Court judges “to continue to carry out their duties once they have reached retirement age” constitutes a “prerogative, the specific purpose of which is to protect the judiciary both from interference by the legislative authority and from that by the executive authority” (§ 103).

In other words, it is suggested that the Polish President, itself part of the executive, is the best placed to protect the judiciary from interference by both the executive and legislative branches by deciding alone and in the absence of any substantive conditions, procedural rules and access to judicial review, when to authorise a Supreme Court judge not to be forcibly retired. This is by the way the same office holder who has deliberately ignored court orders, repeatedly attacked Polish judges while also questioning the independence of the Polish ECJ judge and the authority of the ECJ. Even Kafka could not have imagined something more Kafkaesque.

For the Court, the inescapable conclusion is that “by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age”, Poland has violated Article 19(1) TEU (§ 124). While explaining why this is so, the Court makes noteworthy observations in relation to the new “National Council of the Judiciary” (NCJ), arguably established in breach of the Polish Constitution and since suspended from the European Networks of Councils for the Judiciary (ENCJ) due to its lack of independence. In a nutshell, the Court explains that the prior involvement of the NCJ cannot “save” the presidential extension regime organised by the Law on the Supreme Court as the NCJ has proved unable to deliver properly reasoned opinions based on objective and relevant criteria to the President for the purposes of authorising Supreme Court judges to continue to carry out their duties.

3. Immediate and potential impact

In a strong editorial, the Financial Times described the Court’s ruling as a landmark one which “will help buttress the rule of law in the EU against authoritarian leaders who have been chipping away at democratic checks and balances with impunity”.

We agree with this assessment.

While the ruling addresses only one of the multiple serious rule of law problems identified by the European Commission in its Article 7 proposal, it does not merely fully confirm the accuracy of the Commission’s diagnosis in the present infringement action but also indirectly its general diagnosis regarding the growing systemic threat to the rule of law in Poland. This legal win is also bound to considerably strengthen the weight of the Commission’s arguments within the framework of ongoing Article 7 proceedings.

The Court’s ruling also establishes a solid de facto precedent with respect to any future attempt in Poland or elsewhere to take control of a court via a retroactive lowering of the retirement age of judges under false pretences. The ruling will similarly add to the growing body of evidence which shows repeated violations by the Polish government of the principle of loyal cooperation in its dealings with the Commission, the Council and now the ECJ.

The Court does not explicitly tackle the question of the NCJ, which was established in 2018 in open violation of what the Commission recommended. The ruling however makes it apparent that the consultation of the NCJ cannot be viewed as an effective safeguard to protect judicial independence. The Court will get a chance to make this crystal clear in Joined Cases C-585/18, C-624/18and C-625/18. One may expect the Court to follow AG Tanchev and find the new NCJ as lacking the required independence from the legislative and executive authorities. The ramifications of such a finding would be extremely significant as it would essentially mean that every single decision made by the ENCJ-suspended NCJ would be have been made by a compromised body acting in breach of its mandate to safeguard the independence of courts and judges. The potential impact could be extremely significant especially as regards the Polish courts which include the “judges” nominated by the tainted NCJ and appointed by the Polish President.

With respect to the new disciplinary system, the Court could not have more clearly indicated that it shares the Commission’s concerns when it stated that its case-law requires that the rules governing the disciplinary regime “must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions” (§ 77). This is virtually the same phrasing used by the Commission when it announced the launch of its latest infringement action regarding Poland’s “reforms” on 3 April 2019. We understand this as an implicit encouragement for the Commission to promptly continue with its action. This means inter alia that it is only a matter of time before the so-called “Disciplinary Chamber” is found to violate the requirements of judicial independence required by EU Law. Again, the ramifications of such a finding would be extremely significant as all of the Disciplinary Chamber’s decisions to date would then have been made by a body masquerading as a court.

Notwithstanding the above, the direct practical consequences of the Court’s ruling will remain modest. Indeed, a significant number of Supreme Court judges had previously refused to subject themselves to the plainly unlawful retirement regime both as a matter of Polish constitutional law and EU law, with all relevant Supreme Court judges requested to return to work following the first interim order by the Chief Justice (the President of the Supreme Administrative Court (SAC) did the same in relation to the SAC judges who were forcibly retired as well). Furthermore, Polish authorities essentially conceded defeat after the final interim order adopted by the ECJ last December (while doing so it however sought to discreetly neutralise some pending preliminary ruling requests in order to prevent the ECJ from examining the NCJ and the Supreme Court’s Disciplinary Chamber in light of the EU requirements of judicial independence).

Most importantly, this ruling does not directly engage with one of the decisive issues raised by the Commission: the decision of the Polish President to increase the number of posts within the Supreme Court, which will eventually enable the ruling party to capture it. However, considering the arguably unlawful nature of the procedure having been used by the Polish President to appoint individuals to the Supreme Court, this issue should eventually reach the ECJ as it was the subject of the most recent preliminary ruling request adopted by a not yet captured chamber of Poland’s Supreme Court on 12 June 2019.

While not addressed by the Court’s ruling, it is to be hoped that within the framework of the infringement action regarding the Polish law on ordinary courts, the ECJ will tackle the forced retirement/dismissal of61 ordinary court judges. In the absence of any pending actions raising this issue, the ECJ is unlikely to be able to address the dismissal of over 70 court presidents (and 70 vice‑presidents) which took place in 2017-18 on the back of a six-month transitional regime “which gave the Minister of Justice the power to arbitrarily dismiss them without any specific criteria, without justification and without judicial review”. Similarly, to the best of our knowledge, there is no legal action which would enable the ECJ to look into the “the very high number of dismissals and demotions among the Polish prosecutors”.

Lastly, one fundamental issue which is yet to reach the ECJ is the lack of effective constitutional review in Poland ever since the Constitutional Tribunal was unlawfully captured in December 2016, and whose independence and credibility, as recently noted by the Council of Europe Commissioner for Human Rights, “have been seriously compromised by the persisting controversy surrounding the election and the status of its new President and several of its new judges”. This is a key issue which is however bound to arise sooner or later especially if, on the back of successful electoral results, the current ruling party is unable to resit the temptation to further instrumentalise the captured “Constitutional Tribunal”, for instance to justify non-compliance refuse to comply with ECJ rulings on specious constitutional grounds. 

4. Key lesson

The key lesson we draw from this ruling is that any “dialogue” with authorities engaged in rule of law backsliding should be systematically accompanied with the launch of as many infringement actions as possible and as soon as possible.

In the present case, one may not forget how seemingly difficult some within the Commission found it to accept the need for prompt legal action in the first place. To justify legal inaction, we often heard the argument that Article 7 TEU should be considered a lex specialis and therefore exclude the launch of Article 258 infringement actions on issues..
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Ane Aranguiz, PhD Candidate, University of Antwerp

On 16 April 2019 the Commission launched the discussionon how to render decision-making process at EU level more efficient in the social field by activating the passerelleclauses and moving from unanimity to qualified majority voting (QMV) and from special to ordinary legislative procedure without undergoing an unwieldly process of Treaty reforms – although a unanimous vote of Member States is still necessary to approve this change.

The passerelle clauses are part of a number of ‘flexibility mechanisms’ introduced by the Lisbon Treaty that allow to simplify the decision-making process thereby enabling a more efficient exercise of EU competences where special legislative procedure and unanimity are maintained. The Lisbon Treaty provides for a general passerelleclause enshrined in Article 48(7) TEU that is applicable to all policy areas -with the exception of military or defence-related decisions-, as well as specific passerelle clauses that apply only in certain policy areas, namely, Article 32(3) TEU on Common Foreign and Security Policy, Article 82(3) TFEU on judicial cooperation in civil matters, Article 153(2) TFEU on social policy,  Article 192(2) TFEU on environmental policy and Article 312(2) TFEU on the Multiannual Financial Framework.

Background

This Communicationis the last of a series of four aiming at reviewing the passerelle clauses provided for the EU Treaties as envisioned by President Juncker in his 2018 State of the Union address. In September 2018, the Commission presented the first proposal on common foreign and security policy, followed by a communication in January 2019 on taxation. In April 2019, the Commission presented the last two proposals first on energy and climate and later on social policy. (None of these proposals has been followed up by the Member States yet).

In social policy, most areas where the EU has competence to act are already subject to QMV and ordinary legislative procedure, which has allowed for an expansion of the social acquis at the EU level over the years. Yet, a reduced but significant number of areas of social policy still require unanimity among EU Member States and a special legislative procedure. These areas include measures relating to the protection against dismissal, social representation and defence of workers’ and employer’s interests, conditions of employment for third-country legal residents, non-discrimination (based on gender, racial or ethnic origin, religion or belief, disability, age, and sexual orientation) and social security and social protection for workers outside cross-border situations.

The specific passerelle clause under Article 153(2) would allow for the transition of the first three areas, whereas the general passerelle could further be applied to the latter two. Differences remain between the general and specific passerelleclauses regarding the procedural requirements for their activation. In order to activate the general clause, the European Council has to take the initiative and indicate the precise envisaged change in the decision-making procedure and notify national parliaments, which have up to six months to object to the proposal. After that, the European Council may, by unanimity and once consent by the European Parliament has been obtained, adopt the decision authorising the Council to act by QMV or enabling the adoption of the corresponding measures by ordinary legislative procedure. This procedure allows also for the half-way activation of the clause where they move from unanimity to QMV while maintaining the special legislative procedure. The activation of the specific passerelle clause, differently, is ‘only’ subject to unanimous agreement in the Council on the basis of a proposal by the Commission and after consultation with the Parliament.

According to the Commission, other than the fact that these policy areas might have major implications on the financial equilibrium of the national welfare systems, a limitation specifically provided for in Article 153(4)TFEU, there is seemingly no logical reasons that explain why these fields remain subject to unanimity and special legislative procedure. Consequently, in December 2018 the Commission presented its roadmapfor the proposal for more efficient law-making in social policy and opened the feedback period that collected 27 opinions from different stakeholders.

The Communication

The Communication opens the debate on the enhanced use of QMV and ordinary legislative procedure with the aim of rendering the decision-making process more timely, flexible and efficient.

The Communication emphasizes that while the activation of the passerelle clause would change the decision-making method, it would not alter the overall EU legal framework and earmarked that EU measures are still subject to the principles of subsidiarity and proportionality, the limitations under the social policy title Article 153 TFEU regarding, inter alia, defining fundamental principles of social security or the specifically excluded areas of the right to association, the right to strike and the right to impose lockouts.

Further in the Communication, the Commission discusses the possibility of activating the passerelle clause in the five areas where unanimity and special legislative procedure is still required. Yet, the Commission concludes that only in two out of the five areas the activation of the would passerelle clause have an added value. Firstly, the Commission argues in favour of the use of the passerelle clause in the field of non-discrimination to facilitate equal protection against discrimination that guarantees an effective redress mechanism for all. Particularly, the Commission states that while there is certain level of protection for gender and racial discrimination in employment, equal treatment on the grounds of belief, disability, age and sexual orientation remains protected only in employment and occupation. The Commission considers necessary to address the inconsistent and incoherent EU legal framework where some individuals are better protected than others. (Note that a Commission proposal in this field from 2008 has not yet been agreed).

The Commission also sees suitable to activate the general passerelleclause with regard to social security and social protection of workers for the adoption of recommendations in the near future. The Commission here recalls the recently politically agreed recommendation on access to social protection for workers and the self-employed which is still pending for final adoption, and considers that a more effective decision-making process is desired to support the process of modernisation and convergence of national social protection systems.

Nevertheless, as for the other three fields where unanimity and special legislative procedure is required, namely, protection against dismissals, employment conditions of third-country nationals and the representation and collective defence of the interests of workers and employers, the Commission does not see fit to activate the passerelle clause due to either the limitations envisioned in the Treaty, the sufficiency of the existing legislation or the strong links and diversity between national social protection systems.

Commentary

The proposal put forward by the Commission should be given a cautious welcome. From a positive standpoint, the fact that most of social policy fields where the EU has competence require QMV and unanimity is required only in few domains leads to an uneven a fragmented development of the social acquis. Moving from unanimity to QMV in those limited areas allows for a swiftly and effective policy response in all areas of EU law and prevents one single Member State from vetoing social initiatives while still requiring a high degree of consensus. Secondly, transitioning to an ordinary legislative procedure allows for highlighting the role of the European Parliaments as a co-decision making. While the special legislative procedure relegates the role of the European Parliament to the subordinated position of a mere consultant, in ordinary legislative procedures the European Parliament becomes an equal to the Council and allows for a more democratic decision-making process where the direct beneficiaries are being represented. The activation of passerelle clauses in the social field would therefore not only avoid blockage by a single Member State, but also give the European Parliament a real co-legislator role. Considering the obstacles faced in the adoption of social policy legal instruments due to the lack of consensus in the Council, an active involvement of the usually more socially progressive European Parliament, is likely to free the decision-making process in social matters to a certain extent.

Yet, there are a number of points of concern. To begin with, the activation of the passerelle clause is only envisioned for two out of the five social policy areas that still require unanimity and the special legislative procedure. Moreover, these are the exact same two that cannot rely on the special passerelle clause under Article 153(2) but must be based on the general provision under Article 48(7) which, in turn, requires a much stricter procedural formula. On top of this, one of the two fields, namely social security and social protection of workers, is only contemplated with regard to the adoption of recommendations, thus disregarding the possibility to adopt binding instruments. This is particularly striking when considering the challenges faced recently by the Commission in the formulation of a measure for access to social protection of workers and self-employed, where the Commission inclined for a proposal for a recommendation due to the lack of political support to adopt a binding instrument by Member States.

The activation of the passerelle clause is clearly a positive development, yet, the fact that this is such a limited activation is highly regrettable. Continued fragmentation on social policy may moreover lead to the use of enhanced cooperation, where Member States might separately agree on social policy instruments for higher protection of their citizens. Yet, this will unquestionably result in a two-speed Europe between those Members within and out the enhanced cooperation framework.

The dynamism of the Commission in the context of the European Pillar of Social Rights provides the perfect platform to keep adapting, updating and adopting new social legislation at the EU level thus aligning EU law with the social priorities identified by Juncker’s Commission. If, and this is a big if, the discussion opened by the Commission leads to activating the passerelle clause (even if only limitedly), it will in all likelihood lead to new proposals by the Commission tackling non-discrimination in a more comprehensive manner that could be adopted in a more efficient manner. However, this will fundamentally depend on whether or not the next Commission resumes the enthusiastic social activism of the Juncker delegation.

Yet, if the Pillar is indeed the last chance for social Europe that many have claimed, this initiative represents a missed opportunity to render effectiveness in the decision-making process in social policy by closing the door to facilitating measures tackling clear gaps on the current EU legislation, most clearly with regard to protection against dismissals. It is equally regrettable the choice to limit the use of the passerelle clause to adopt a binding unified response to the inadequacies of our current social protection systems. In times of increased Euroscepticism and rising non-standard forms of employment, providing a response to concrete needs of citizens remains an imperative for future-proving the EU, therefore, it is in the best interest of the same to remove any obstructions of the use of Union competences that allow to move closer to an actual social market economy. At the very least, this initiative embodies the intention to partially unclog the ‘way’ when there is certain degree of ‘will’.

Barnard & Peers: chapter 20
Photo credit: The Independent

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Alexandros Antoniou, University of Essex, School of Law - a.antoniou@essex.ac.uk

On 19 June 2019, the EU General Court (GC) ruled that the three-stripe EU trade mark (EUTM) owned by Adidas was invalid. It upheld the earlier decision of the EU Intellectual Property Office’s (EUIPO) Second Board of Appeal, which had found that the trade mark at issue was ‘extremely simple’ and devoid of any distinctive character, both inherent and acquired through use.

Background

The trade mark in dispute was originally registeredon 21 May 2014. It covered clothing, footwear and headgear (class 25 of the Nice Classification system) and was identified as a figurative mark, i.e. a trade mark where non-standard characters, stylisation or layout, or a graphic feature or a colour are used. It corresponded to the following description and is reproduced below: ‘The mark consists of three parallel equidistant stripes of equal width applied to the product in whichever direction’.

   

In December 2014, a Belgian company named Shoe Branding Europe BVBA filed an application for declaration of invalidity of this mark pursuant to what is now known as Article 59(1)(a) of EUTM Regulation 2017/1001 (absolute grounds for invalidity) in conjunction with Article 7(1)(b) of the same (absolute grounds for refusal). In June 2016, the Cancellation Division of the EUIPO granted the application on the grounds that the mark inherently lacked distinctive character.

Adidas challenged the decision in August of the same year, claiming that, although their EUTM was devoid of inherent distinctiveness, it had nevertheless acquired a distinctive character in relation to the goods for which it was registered in consequence of the use made of it throughout the EU after registration in accordance with Articles 7(3) and 59(2) of the Regulation. After the Second Board of Appeal confirmed the Cancellation Division’s assessment in March 2017, Adidas brought the matter before the GC.

In support of its action, the Germany-based company put forward a single plea in law, which consisted of two parts: first, that the Board of Appeal wrongly dismissed several items of evidence with the justification that they related to signs ‘other than the mark at issue’; and second, that the Board of Appeal erred in holding that it was not established that the mark had acquired distinctive character following its use within the EU.

Unjustified dismissal of some of the evidence

In relation to the first part of its plea, Adidas submitted that the Board had misinterpreted the mark in question and misapplied the ‘law of permissible variations’. Specifically, the applicant argued that the Board should not have assumed that the mark was only claimed in specific dimensions, i.e. that it was represented by three vertical, parallel black stripes of equal thickness against a white background with a ratio of approximately 5:1 between the total height and width of the mark. Instead, Adidas claimed, the Board should have treated the mark as a ‘surface pattern’ the proportions of which were not fixed, i.e. that the mark was constituted of three parallel equidistant stripes that could be extended in length or cut in different ways, including cut at a slanted angle, depending on the goods on which it was applied.

The GC however rejected this claim, concluding that the mark in question could not be regarded as a pattern mark and there were no indications that it should be intended as such. Adidas’ mark had been registered as a figurative mark. Neither its registered graphic representation nor its description made it clear that it consisted exclusively of a set of elements which were repeated regularly. Importantly, Adidas’ claim was not consistent with the graphic representation of their registered mark, characterised by a rectangular configuration which was created by three stripes being cut at a right angle and of a specific ratio of height to width. In addition, the description of the mark on the register did not state that the length of the stripes could be modified or cut in different ways. The Board of Appeal’s interpretation of the mark at issue as an ‘ordinary figurative mark’ was thus not erroneous. This conclusion could not be called into question by the ruling in Apple Inc v Deutsches Patent- und Markenamt [2014] EUECJ C-421/13, which established that a design may be registered as a trade mark without indicating the size and proportions of the object it represents. This cannot be taken to suggest, however, that a mark can be registered without defining the proportions of the sign itself.

Adidas was not justified in pleading an infringement of the ‘law of permissible variations’ either. This principle, which is rooted in Article 5C(2) of the Paris Convention for the Protection of Industrial Property, allows immaterial differences between the form of the mark as it was registered and the form in which it is used by the proprietor, so long as these differences do not affect the distinctive character of that mark. The applicant had produced evidence (mainly consisting of images from catalogues and promotional materials, showing goods bearing various of their marks) which, in their opinion, related to forms of use of their three-stripe mark that did not alter the distinctive character of that mark as registered.

Confirming the Cancellation Division’s assessment, the Board of Appeal had found that the ‘vast majority’ of the evidence produced related to signs other than the mark in dispute itself. The following examples of evidence, in particular, failed to show, according to the Board, genuine use of the mark:



The GC found that the Board was entitled to dismiss this evidence for several reasons: first, the ‘extremely simple character’ of the mark – which was not disputed by the applicant – meant that minor alterations to the mark could amount to significant changes. As such, its amended form may not be regarded as broadly equivalent to its registered one. The GC emphasised that ‘the simpler the mark, the less likely it is to have a distinctive character and the more likely it is for an alteration to that mark to affect one of its essential characteristics and the perception of that mark by the relevant public’.

Second, the evidence did not show the mark at issue, but ‘other signs’ consisting of three light stripes against a dark background. The act of reversing the colour scheme, namely showing white stripes against a black background, did not conform with the initial contrast between the three black stripes against the white background, including the white spaces separating those stripes. In light of the extreme simplicity of the mark in question, the failure to respect this specific contrast resulted in a significant variation of the registered form of the mark, despite the fact that the sharp contrast between the three stripes and the background was preserved.

Third, the first nine images produced by Adidas showed signs which had only two – not three – parallel black stripes contrasting with a white background. Even if these images could be taken to show signs consisting of three white (or light) stripes against a black (or dark) background, they nevertheless presented the mark in dispute in forms where the original colour scheme was inverted. As such, they had to be dismissed for the reasons presented in the previous paragraph.

Fourth, the use of sloping stripes on the clothing of the athlete in motion shown in the tenth image above was found to have affected the distinctive character of the mark. This was not only because of the reversed colour scheme, but also because it did not meet the dimensions of the mark as registered with its vertical and parallel stripes. The applicant’s argument that their direction depended on the athlete’s movement and the way the items were folded or displayed did not seem to persuade the Court.

As regards the remaining images produced in evidence, the photographs of footwear broadly suffered the same disadvantage in that the modification to the thickness and length of the stripes, as well as their cut at a slanted angle, noticeably affected several characteristics of the mark and as such related to forms of use that differed from the form in which the mark had been registered. Finally, Adidas acknowledged at the hearing the irrelevance of the last four images showing more complex signs. Overall, the GC, siding with the Board, concluded that the signs appearing in most of the images submitted by the applicant were rightly dismissed, as they ‘differed significantly’ from the registered form of the three-stripe mark. Consequently, there was no violation of the law of permissible variations.

Assessment concerning the acquisition of distinctive character through use

The second part of Adidas’ plea was that the Board erroneously found that the applicant had failed to show that the mark in question had acquired distinctive character in consequence of the use that had been made of it within the EU. The evidence adduced by Adidas included: images (discussed in the examination of the first part of the plea above); figures concerning its turnover as well as figures showing the amount invested in promoting the mark; and market surveys.

However, the relevance of these items was questioned by the GC. It followed from the assessment of the first part of the plea that the applicant could not rely on all the evidence demonstrating a mark consisting of three parallel equidistant stripes. The GC observed from the very start that:

the relevant evidence is only that which shows the mark at issue in its registered form or, failing that, in forms which are broadly equivalent, which excludes forms of use where the colour scheme is reversed, or which fail to respect the other essential characteristics of the mark at issue.

Before reviewing the evidence submitted by Adidas, the Court also recalled well-established principles regarding acquired distinctiveness. It follows from the unitary character of the EUTM (i.e. the EUTM extends to the territory in which the EU Treaties apply and has an equal effect throughout the EU, including uniform protection, invalidity, revocation and transfers of ownership), that in order to be accepted for registration, a sign must have distinctiveness (inherent or acquired through use) throughout the EU. It is not necessary that separate proof is submitted in respect of each and every Member State. It is sufficient that the evidence submitted is capable of establishing the acquisition of distinctive character throughout the Member States of the EU. Acquired distinctiveness may be extrapolated from evidence of use in one country to another in certain, yet limited circumstances, e.g. where there is a certain degree of geographical, cultural or linguistic degree of proximity.

In the present case, it was not disputed that the mark at issue was inherently devoid of distinctive character throughout the whole of the EU and as such the Board of Appeal had rightfully examined whether the mark had acquired distinctiveness for the relevant public throughout the territory of the EU. The only evidence which was material to some extent were five market surveys carried out from 2009 to 2011 in Estonia, France, Germany, Romania and Spain. These related to the use of the mark in its registered form and measured the perception of that mark by the relevant public but covered only part of the EU and their results were not representative of the entire EU territory.

As far as the images are concerned, the GC did not seem to be moved by the nearly 12,000 pages of evidence produced during the proceedings before the EUIPO. In the Court’s view, Adidas failed to identify images which could establish use of the mark in its registered form or in forms which could be deemed broadly the same. The first three images above showing the three-stripe mark affixed to sports bags were not considered relevant, because such items were not covered by the goods at issue (clothing, footwear and headgear). Moreover, other images that did correspond to the registered mark and were capable of establishing some use did not sufficiently indicate the scale and duration of that use or its impact on how the mark is perceived by the relevant public.

‘Impressive figures’ concerning Adidas’ turnover, the amount of marketing and advertising costs and its sponsorship activities in relation to sporting events showed the ‘considerable investment’ made by the applicant in promoting its marks in an intensive and continuous manner within the EU. Nevertheless, these figures concerned the applicant’s ‘entire business […], all of the goods and all of the marks taken together’, including the promotion of irrelevant products such as sporting bags and goods bearing only signs other than the three-stripe mark in dispute. Due to the lack of a demonstrable link between the figures provided and the mark at issue as well as between the figures and the goods in question, the GC concluded that it could not be established that the mark had been used and had acquired distinctiveness as a result of the use made of it.

The GC concluded that under these circumstances:

[…] the various items of evidence adduced by the applicant, even taken as a whole: (i) do not prove use of the mark at issue throughout the territory of the European Union; and (ii) are not sufficient, in any event, to demonstrate that, by virtue of that use, the mark at issue has come, in the whole of that territory, to identify the goods for which it was registered, and thus to distinguish those goods from those of other undertakings.

On those grounds, the GC dismissed the action and ordered Adidas to pay its own costs as well as the costs incurred by the EUIPO.

Commentary

The following interesting points can be gleaned from the GC’s much-anticipated judgment. Trade mark owners must ensure that their EUTMs are properly recorded and need to use them in commerce in the form that was originally registered or in a form that can be deemed broadly equivalent to the essential characteristics of its registered form. The mark itself must be identified in a way that accurately determines the scope of the protection afforded to its proprietor. The EUIPO cannot consider characteristics of the mark applied for that are not clearly set out in the application for registration or the accompanying documents. It is also evident from this case that the GC is likely to strictly adhere to the specific dimensions, proportions and overall configuration of the submitted mark. As the Court highlighted, ‘it is for the trade mark applicant to file a graphic representation of the mark corresponding precisely to the subject matter of the protection [they] wish to secure. Once a trade mark is registered, the proprietor is not entitled to a broader protection than that afforded by that graphic representation’. The salience of filing marks correctly becomes even more pronounced in light of the acceptance of new types of marks (e.g. multimedia marks or hologram marks) by the EUIPO as and from 1 October 2017, following the key changes brought by the new EUTM Directive 2015/2436.

Care also needs to be taken with the quality and rigour of the evidence that may need to be preserved, gathered and submitted in order to establish that a mark has acquired the necessary level of distinctiveness across the entirety of the EU. In the present case, the GC challenged the multiple forms of the three-stripe mark which it found inconsistent with the mark’s essential characteristics, despite its comparatively high degree of recognition and regardless of whether its variations might be perceived by the relevant public to be corresponding to the proprietor’s goods or services.

Furthermore, the protection afforded by the law of permissible variations is not boundless and it is uncertain which forms of a mark do not alter the distinctive character of that mark as registered. A question may arise, for example, in cases where use in various colours has been made of a mark, the original representation of which is colourless on the register. Provided that the mark is still visible, it is not entirely clear when such use would affect the distinctive character of the mark in the form under which it was registered. So far as figurative marks are concerned, a different graphical representation is unlikely to diminish the protection granted to the mark, as long as it can reasonably be regarded as another form of the same subject-matter.

Finally, it cannot plausibly be maintained that the GC’s judgment sounds the death knell for all of Adidas’ marks featuring the three-stripe logo. The German corporation owns several other similar marks, like thisand this, which remain valid. The impact of the present ruling is limited to the specific execution of the three-stripe mark shown earlier. It is nevertheless a disappointing for them outcome, which might be appealed to the Court of Justice of the EU.

Photo credit: Amazon.co.uk

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Salvo Nicolosi (RENFORCE - Utrecht Centre for Regulation and Enforcement in Europe)

While a new European Union legislature is about to start on 2 July 2019, it is not certain to what extent the new European Parliament will inherit and continue the work of the previous one in one of the most delicate areas under reform, such as the Common European Asylum System (CEAS). The whole reform package has been put into “unfinished business,” according to rule 229 of the Rules of Procedures of the European Parliament. This means that at the end of the legislature all dossiers that have not been voted at the plenary shall be deemed to have lapsed. While arguing that, despite some points of concerns, the European Parliament made a significant contribution especially as regards the reform of the Dublin Regulation and that departing from such a position will be a misstep for the new European Parliament, the evolving role of the European Parliament in the past and current negotiations for the CEAS will be considered.

The State of Play of the Negotiations

In an attempt to tackle the structural shortcomings of the CEAS, the European Commission adopted two packages of proposals for the future CEAS regulatory framework (Nicolosi, 2019). A first package adopted on 4 May 2016 comprises the proposals to recast the Dublin Regulation (COM/2016/270), Eurodac Regulation (COM/2016/272) and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will replace the current European Asylum Support Office (EASO) (COM /2016/271). A second package was adopted on 13 July 2016 and includes a proposal for a Regulation repealing the Qualification Directive (COM/2016/466), a proposal for a Regulation repealing the Procedure Directive (COM/2016/467), a proposal to recast the Reception Directive (COM/2016/465) and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468). Provisional compromises have been concluded between the Council’s Presidency and the European Parliament’s rapporteurs on five of the seven proposals but, at the end of the eighth legislature no progress was registered, and the reform is in a stalemate, especially owing to the difficulties to find an agreement on the reform of the Dublin Regulation. Nonetheless, while the Council has not yet managed to come up with a concerted approach, the European Parliament submitted “the boldest official proposal to amend the Dublin system to-date” (Maiani, 2017): the Wikström Report.

The European Parliament as a Forward-Looking Negotiator

Since the entry into force of the Lisbon treaty, the European Parliament has played a crucial role as a co-legislator in the area of asylum. Several authors have welcomed in general such an expansion of powers (Monar, 2011) for an institution that for many years during the European integration process has acted as a consultative body. While its contribution was rather limited to the adoption of the first generation of legislative measures in the field of asylum (1999-2005), which were adopted by unanimity by the Council on the basis of Article 63 of the Treaty on the European Community, the European Parliament distinguished itself as a strategic negotiator and forward-looking legislator during the reform that resulted in the second generation of EU asylum legislation (2008-2013).

In particular, before the end of the sixth term, in May 2009 the Parliament strategically decided to finalise its first reading position at the plenary to leave its imprint on the follow-up during the next legislative term. As has been highlighted (van de Peer, 2016: 57), it was rather exceptional to adopt first reading positions without trying to negotiate a first reading agreement with the Council, as it has been doing during the current phase of reform, in which the LIBE Committee has been seeking to pre-agree a text with the Council before formally adopting its first reading position at the plenary. Moreover, as regards the Dublin Regulation, the European Parliament had already called for a new legislative proposal to put in place by the end of 2011 to replace the provisions on the suspension of transfers proposed by the Commission (COM/2008/820, Art. 31) when  a  Member  State  was  faced  “with  a  particularly  urgent  situation  which  places  an  exceptionally heavy burden on its reception capacities” and suggesting the adoption of “legally binding  instruments to ensure greater solidarity  between Member  States” (EP-PE_TC1-COD(2008)0243, Recital 27), including a relocation mechanism for the benefit of Member States in situations of emergency (Ibid, Art. 32 (2) 11 b).

…Campaigning for Horizontal, Vertical and Reciprocal Solidarity

This emphasis on solidarity is even more visible in the amendments to the current European Commission’s proposal to recast the Dublin Regulation. Departing from the Commission’s proposal (COM/2016/270), which has designed a model of solidarity based on emergency-driven relocations, the Wikström Report deserves the credit of adding another dimension of solidarity to the horizontal and inter-State one, which has been under consideration and abundantly discussed (inter alia Tsourdi, 2017).

Such a new dimension of solidarity, which can be considered vertical, aims to turn the Dublin system into a model which is not only fair to the Member States but also to the asylum seekers. In an attempt to redesign the allocation criteria under the Dublin mechanism, the Wikström Report proposes a relocation mechanism that is supposed to work permanently with a focus on asylum seekers’ genuine links. These include family ties but also previous legal residence or educational diplomas.

Accordingly, the Member State of first arrival has the duty to register the applicants, filter out those representing a risk for security or whose application is manifestly unfounded and determine the transfer of the other applicants in line with any relevant genuine link. On the contrary, if no relevant link is available, applicants will be relocated though the automatic allocation mechanism to one of the four Member States which have received the lowest number of applicants in relation to their fair share. The fair share is calculated on the basis of the GDP and the population to ensure that larger and wealthier countries will have a larger share. For the first time applicants will be given the option to choose among the four less burdened Member States. Also, another example of vertical solidarity refers to the possible group transfer of a maximum of 30 applicants travelling together. As has been emphasised, “the logic of these amendments is to encourage persons to apply in the first State of arrival by offering the prospect of being transferred to a desirable destination” (Maiani, 2017). All transfers are to be operationalised by the future EU Asylum Agency within two weeks from the final transfer decision and the costs should be borne on the general budget of the EU.

Ultimately, in order to ensure reciprocal solidarity, instead of a solidarity fee, as proposed by the Commission, the European Parliament proposed that, if a Member State does not fulfil its obligations of registration or participation in the allocation mechanism, it shall not be permitted to use EU funds to finance the return of third-country nationals to third countries.

A too Ambitious Reform for a still Weak Legislator?

The European Parliament has admittedly distinguished itself as being “revolutionary” in suggesting for the first time the redesign of the Dublin Regulation’s criteria. The amendments contained in the Wikström Report constitute a valuable stepping stone from which the future negotiations can resume. On the basis of Rule 229, the new Parliament’s Conference of Presidents decides on whether to resume or continue the consideration of unfinished legislative proposals. While the practice shows that the European Parliament usually resumes the pending dossiers, the question still remains how effective it is as a co-legislator. The former negotiations for the CEAS show the political unwillingness of the Member States to overhaul the Dublin system. During the adoption of the second phase legislation, Member States were very reluctant in approaching the European Parliament as a co-legislator, especially as regards the reform of Dublin. Still, the current reform lays in stalemate, because all proposals to depart from the current system of responsibility allocation lack the necessary support and politically cannot reach consensus within the Council. This is also reflected in the dramatic emphasis on externalization (EUCO, 2018).

Two general recommendations can be therefore sketched for the future European Parliament. First, the Wikström Report is a valuable stepping stone for the next round of negotiations, but improvements are necessary because, as has been stressed, it designs a system which is far from being practically feasible (Maiani, 2017). This is in particular due to the fact that the permanent relocation will determine a massive number of transfers with the risk that a misfunctioning in their smooth operationalisation can create undesirable deadlocks. It has been suggested renouncing this ambition of large-scale transfers and establishing responsibilities entirely on genuine links (Maiani, 2017). These are remarkable inputs, but perhaps, as a second recommendation, applicants’ choices can be better weighed with a more principled approach to the integration potential in the host society, especially in terms professional life and social inclusion. This means that transfers can be arranged based on the specific needs Member States might have in their labour market. All in all, what refugee law requires is empowerment: allowing refugees to start a new life in dignity.

Barnard & Peers: chapter 26
JHA4: chapter II:5
Photo credit: euractiv.com


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Julia Burchett, PhD candidate at the Université libre de Bruxelles and the University of Grenoble

Introduction

The European Arrest Warrant, regularly presented as “the flagship” of EU criminal law, is in practice one of the most used mechanisms (if not the most used) of judicial cooperation in criminal matters. It consists of a simplified cross-border judicial surrender procedure for the purpose of prosecuting or executing a custodial sentence or detention order, thus replacing the traditional cooperation system involving political authorities from the Member States.

On 27 May 2019, the European Court of Justice (ECJ) provided further clarifications to the long-standing question regarding the definition of a « judicial authority » competent to issue an EAW, and ruled on the independence required to be regarded as such under EU law. It brought an answer to the doubt concerning the capacity of the Public Prosecutor’s Offices of the Member States to issue EAWs, a doubt raised notably by the opinionof Advocate General Campos Sánchez-Bordona in the Özçelik case in 2016 (C-453/16 PPU, para 45).

In two separate judgments, the Court distinguishes the German public prosecutor’s offices, which do not provide a sufficient guarantee of independence from the executive for the purpose of issuing a European Arrest Warrant (Joined Cases C-508/18 and C-82/19 PPU), from the Prosecutor General of Lithuania, which provides such a guarantee (Case C-509/18).

Legal question raised

The cases were brought before the ECJ by the Irish Courts after three defendants challenged the validity of the EAWs issued against them. They argued that the Public Prosecutor’s offices in Germany (in Lübeck and in Zwickau) and the Lithuanian Prosecutor General cannot be regarded as a ‘judicial authority’ within the meaning of Article 6(1) of the EAW Framework Decision, in so far as they do not enjoy sufficient independence from the executive power.

After discussing the main issues raised in the Court’s judgments, this contribution will address briefly their consequences, in particular for the German State, and the EU area of Criminal Justice.

Summary of the Court’s reasoning

The Court starts its judgment by preliminary remarks emphasizing the crucial function of the principle of mutual recognition, on which is based the EAW. Considered as a ‘cornerstone’ of the Area of Freedom, Security and Justice (AFSJ), the principle of mutual recognition is itself grounded on mutual trust, which lies on the assumption that all the Member States comply with EU law, in particular with fundamental rights recognized by EU law. While stressing the fundamental importance of these two principles and their implications within the context of the execution of an EAW, the Court states that “the principle of mutual recognition proceeds from the assumption that only European arrest warrants, within the meaning of Article 1(1) of Framework Decision 2002/584 must be executed in accordance with the provisions of that decision”. In other words, since an EAW is a judicial decision, only EAWs validly issued by a judicial authority should be executed.

The Court then proceeds in two steps to determine whether the authorities at stake may be regarded as a ‘judicial authorities’ for the purpose of issuing an EAW.

A broad interpretation of the notion of ‘judicial authority’

The first step consists of clarifying the scope of the notion of ‘judicial authority’. In this respect, the Court has already ruled in a trilogy of cases in 2016 (discussed here) that issuing Member States do not have absolute discretion, as the term requires an autonomous and uniform interpretation throughout the European Union.

As the ECJ has already stated in the 2016 judgments in Poltorak(C-452/16 PPU, para 33) and Kovalkovas(C-477/16 PPU, para 34), the words “judicial authority” must not be interpreted strictly as referring only to the judges or courts of a Member State, but as encompassing more broadly “the authorities participating in the administration of criminal justice in that Member State”, such as Hungarian prosecutors (ÖzçelikCase C-453/16 PPU). This broad interpretation is supported by the rationale of the EAW which aims to facilitate free movement of judicial decisions, including those prior to judgment, in respect of the conduct of criminal proceedings.

In view of the functions performed by the prosecutors in these three cases, the Court considers that this criterion is easily fulfilled, as the authorities in question play an essential role in the conduct of criminal proceedings in their respective Member State.

A strict interpretation of the requirement of independence

What is more controversial is the second requirement that the issuing judicial authority must act independently from the executive power when issuing an EAW. Pursuant to the principle of separation of powers, this fundamental requirement aims to ensure that the rule of law prevails and that the fundamental rights of the person requested are protected effectively, in the absence of any political considerations. In the 2018 LM case (C-216/18 PPU), discussed here, the ECJ has already highlighted the importance of judicial independence within the context of EAW, this is particularly important insofar as such mechanism allows for deprivation of liberty of the person concerned.

Thus, the Court, relying on EU applicable protection standards, examines whether the authorities at issue are capable to afford a sufficient level of judicial protection in issuing a EAW.

In this respect, the Court recalls that the EAW mechanism is based on a dual level of protection of procedural rights and fundamental rights, referring to another 2016 judgment about the distinction between national arrest warrants and EAWs (Bob-DogiC-241/15, para 56). It requires effective judicial protection of the right of the person concerned to be granted at the moment a national arrest warrant is made and at the stage when an EAW is issued. While it is the responsibility of the ‘issuing judicial authority’ to guarantee that second level of protection, the Court requires it to be able to exercise its responsibilities objectively and independently. “That independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive”. It logically follows that an organ from the executive cannot be designated as an issuing judicial authority (KovalkovasC-477/16 PPU, para 48).

The Court proceeds to test those requirements against the situation of the German and Lithuanian public prosecutors’ offices. This stage marks the distinction between the two judgments. In the case of the two German EAWs (C-508/18 and C-82/19 PPU), German public prosecutors’ offices do not meet the requirement to act independently from the executive in issuing an EAW. This is part of the German prosecution hierarchical structure in which the Minister for Justice has an external power to issue instructions to the prosecuting authorities in question, which may have a direct bearing on a decision to issue an EAW. Despite the arguments put forward by the German government that such power of instruction is circumscribed by German law, these guarantees are considered insufficient by the Luxembourg Court. As a result of this strict interpretation, German public prosecutors will no longer be allowed to issue EAWs until a reform is made. In contrast, concerning the Lithuanian EAW case, the General Prosecutor of Lithuania is considered to offer sufficient guarantees of independence from the executive in carrying out his duties of issuing an EAW.

Commentary

With these judgments, the CJEU further develops its jurisprudence regarding the functioning of the EAW in an Area of Criminal Justice, in which mutual trust must not be confused with “blind” trust. As evidence by recent cases (LMC-216/18 PPU ; Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, also discussed hereand clarified by the 2018 judgmentin ML), a more balanced approach between the fundamental rights of the person to be surrendered and the EU’s goal to guarantee free movement of judicial decisions seems to be taken by the Court, an orientation that appears to be confirmed by these cases.

Beyond the impact upon the individuals concerned by EAWs, the Court’s decisions are contributing significantly to clarifying the notion of “judicial authority” and to giving it an autonomous EU definition. Firstly, in line with its previous rulings, it confirms that this notion may extend beyond courts to include Public Prosecutor’s Offices, thus taking an opposite view from that expressed by the opinionof Advocate General Campos Sánchez-Bordona (joined cases OG C-508/18 and PIC-82/19 PPU, para 51). Secondly, in relation to EU fundamental rights protection standards, it clarifies the guarantees arising from the role of an “issuing judicial authority”, namely the requirement of independence.

Although this is a notable step towards effective judicial protection, it involves new issues to consider for the competent authorities of the Member States. It implies that executing authorities receiving EAWs will have to verify whether the issuing authorities qualify as independent judicial authorities, within the meaning of the ECJ case-law, prior deciding on the surrender of the requested person. The European Judicial Network (EJN) website has already made information availablefor this purpose based on answers provided by some EU Member States (Austria, Denmark, Germany, Italy, Sweden). As stated in a noteissued by the German delegation concerning the consequences of the ECJ’s judgment, “Germany will adjust the proceedings to issue a European Arrest Warrant. From now on, European Arrest Warrants will only be issued by the courts. This can be achieved without changing the existing laws.” While consequences to be given to the lack of independence of prosecutors remain to be seen, the German delegation asked and suggested that the other Member States “decide, whether an existing European Arrest Warrant that has been issued and signed by a German prosecutor could be accepted as grounds for keeping a person in detention according to Article 12 of Council Framework Decision 2002/584/JHA. In such cases, the German court responsible for issuing a European Arrest Warrant would be required to assess within a very short-time frame whether the requirements for issuing a warrant are fulfilled”. A firstand secondseries of notes from other Member States have followed.

Thus, these judgments will have a crucial impact, not only in Germany, but also beyond, affecting the EU area of criminal justice as a whole.  It implies a need to evaluate and eventually reform the organization of the criminal justice system in certain Member States.

Barnard & Peers : chapter 26
JHA4 : chapter II :3
Photo credit : Qantara.de

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Bartłomiej Bednarowicz, PhD Researcher at the Faculty of Law of the University of Antwerp

Background

On Thursday, the Council decidedthat Bratislava will host the headquarters of a brand new EU agency: the European Labour Authority (ELA). The idea for the ELA was spelt out by President Juncker already in September 2017 in his annual State of the Union address. Juncker viewed ELA’s main mission to ensure EU labour mobility in a simple and effective manner and to strengthen fairness and trust in the internal market. Interestingly, the proposal to establish the ELA rolled out of the European Pillar of Social Rights (EPSR) and was presented as a part of the Social Fairness Package, together with a proposal for a Directiveon transparent and predictable working conditions in the EU (adoptedby the Council on the very same day as the Regulationestablishing the ELA; see discussion of the Directive here), a proposal for a Council Recommendationfor access to social protection for workers and the self-employed and a Commission Communicationon the monitoring on the implementation of the EPSR.

In a speedy manner, in March 2018 the Commission put forward a legislative proposal to establish the European Labour Agency and on Valentine’s Day in 2019, the Commission, the European Parliament and the Council reached a provisional agreement and changed the name from Agency to Authority. Finally, in June 2019, the Council adoptedthe proposal for a Regulation and selected Slovakia to host the Authority. The ELA is to start its operations in October 2019 already in Brussels and is expected to reach its full operational capacity in Bratislava by 2024.

Competences

Pursuant to the Regulation establishing the ELA, the main objective of the Authority is to assist the Member States and the Commission in their effective application and enforcement of EU law related to labour mobility across the EU and the coordination of social security systems. The ELA has the mandate to act only within the scope of selected EU acts in the framework of: posting of workers, free movement of workers, social security coordination, social aspects of road transport and cooperation between the Member States to tackle undeclared work. This catalogue remains closed but can be extended on a basis of any future acts that confer tasks on the Authority. More importantly, to maintain its mandate, the ELA is to neither affect any rights or obligations of individuals or employers that are granted by either EU or national laws, nor the mandate of national authorities responsible for enforcement in these fields.

Furthermore, in order to attain its primary objective, the ELA has been fitted with some additional tasks. Firstly, it is to facilitate access to information on rights and obligations regarding labour mobility across the EU as well as to relevant services. Secondly, it is to promote and enhance cooperation between the Member States in the enforcement of relevant EU law across the Union, including facilitating concerted and joint inspections. Thirdly, it is to mediate and help to look for a solution in cases of cross-border disputes between the Member States. Finally, it is to support cooperation in tackling undeclared work.

Organisation and the seat selection

The European Labour Authority will have a permanent structure comprising of a Management Board (including representatives of the Member States, Commission, European Parliament and social partners), an Executive Director and a Stakeholder Group with purely advisory functions (including representatives of the Commission and social partners). On top of that, the Authority aims at being made up of around 140 staff members, some of them seconded from the Member States. In addition, there will be one national liaison officer seconded from each Member State who will facilitate the cooperation and exchange of information between the Authority and her Member State. The Executive Director, on the other hand, will be appointed for a five-year term by the Management Board from a list of candidates proposed by the Commission, following an open and transparent selection procedure including a hearing before the European Parliament. Finally, the Commission is willing to secure approximately €50 million for the Authority’s annual budget.

As for its seat, 4 Member States competed in the selection process: Slovakia, Cyprus, Bulgaria and Latvia. The Council, in a rather transparent way, steered the selection process and published on its website all the offers prepared by the governments. Then, the European Commission assessed the offers based on the geographical balance, accessibility of the location, availability of the proposed premises and overall city’s readiness to accommodate the needs of international staff. At the Council meeting convoked on 13 June 2019, 23 Member States voted in favour of the Regulation establishing the Authority with its seat in Bratislava, 3 voted against (Austria, Hungary and Sweden) and 2 abstained (Czechia and Poland). Admittedly, it will be the very first EU agency to be located in Slovakia that advertised itself with a rather dull slogan ‘ELA in Slovakia, a good idea’. At least, the ELA’s staff will enjoy the state-of-the-art L12 building at the ‘Eurovea City’ in Bratislava and a stunning view on the Danube river.

Comments

An idea for a (pan)-European labour inspectorate has been considered for a long time as simply ‘the wishful thinking’ of some social partners, especially workers organisations. It also has never really attracted a lot of attention, as the Commission feared scoring an own goal due to a lack of the Member States’ support to set up such an agency in the first place. However, the Juncker Commission has finally put the social rights back at the EU agenda and proposed a rather breakthrough initiative in a dazzling form of the European Pillar of Social Rights. The Commission has already delivered quite plenty on the Pillar and mainstreamed many fruitful debates surrounding the social aspects of employment that under the years of austerity and flexicurity have been put aside. The Authority indeed emanates from the EPSR and aligns well with the accompanying proposals presented by the Commission within a broad framework of European Union cross-border employment and the Social Fairness Package.

The potential of the Authority cannot be surely underestimated. Its main advantages can be summarised in three aspects. Firstly, in the field of legal issues of international employment, it will provide the national authorities with some valid operational and technical support, mostly to exchange information, develop some best practices, carry out inspections and also to settle any disputes. Bridging the information and cooperation gap between the Member States is indeed a noble objective and quite a desired one as well. In practice, it is often the case that national authorities are unable to facilitate dialogue with each other and exchange information due to the complex and lengthy internal procedures and the language barrier. Having national liaison officers from all Member States designated to be at the ELA’s disposal will definitely plug that gap and speed things up. Moreover, some national authorities might not have even dreamed of an ability of concerted and joint inspections, which is now a powerful tool in the ELA’s arsenal, subject however, to reaching an agreement between the Authority and the concerned Member State(s).

Secondly, what the enforcement of EU employment and social security law often lacked at national level, were synergies with the already existing EU agencies that would allow to rely on their expertise in areas such as health and safety at work, the management of an undertaking that is being restructured, skills forecasting or tackling undeclared work. Therefore, it is the ELA’s task to facilitate it all to untap the available potential and to strengthen the enforcement levels.

Finally, the Authority will simplify cooperationby integrating a number of existing committees and networks amongst the Member States which will hopefully lead to eliminating fragmentation in that area.

On the other hand, the Authority will definitely not serve as a panacea for all the flaws in the system. The role it will play mostly depends on how active the ELA with its Executive Director decides to be. There is a considerable room to be claimed by the Authority with some space for manoeuvre, but there are some open-ended questions as well. Sceptics and pragmatics may wonder how willing some of the national authorities will be to cooperate within the ELA’s network and agree to, for example, conduct inspections on their territory, which can expose the flaws of their own systems on an EU scale. It is also unsure whether the Member States known for a rather lenient approach towards social security laws will deem it in their best interest to assist ELA with the fight against fraud and abuse on their territories, as no such obligation arises. For them, it could mean the end of their competitive advantage of providing a legal framework for cheaper labour through foxy constructions such as letterbox companies.

Examples from the field of social security coordination and the experience with the Administrative Commission, a body comprising of government representatives, capable of reviewing cases of social fraud between the Member States, do not necessarily instil optimism. The number of successful outcomes of such cases is rather scarce and some national authorities are giving up on the Administrative Commission and often try to take matters in their own hands. Essentially, they reach out on their behalf to the institutions in the other Member States mostly without any tangible end-effects. Moreover, the Authority’s tasks might overlap with those of the Administrative Commission, which was a major point of discussion during the negotiations about the ELA. The exact tasks division, despite indicated as ‘without prejudice’, might prove to be more problematic to delineate and can lead to duplication and competence battles. It is also doubtful how effective the Authority can really be and police the EU labour mobility market consisting of approximately 17 million EU-movers with rather modest resources of 140 staff.

To conclude, as for now, the Authority has baby teeth. It will be up to its adopted strategy, action plans and frankly, leadership to make sure that it will eventually get real teeth. The ELA has definitely promising potential but it remains to be seen how it will be utilised and how big of a dossier can it claim and handle. The expectations are high so we should all give the European Labour Authority a big leap of faith and wait for its very first results.

Barnard & Peers: chapter 20
Photo credit: www.landererova12.sk

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Professor Paul Johnson, Head of the Department of Sociology at the University of York; editor, ECHR Sexual Orientation Blog

Jonathan Sumption, in his Reith Lecture “Human Rights and Wrongs”, attempts to persuade us that the European Court of Human Rights has usurped the power of democratically elected governments by way of an ever expanding interpretation and application of the European Convention on Human Rights. Sumption claims that the Court is continually adding rights, in areas that should be left to governments to legislate in, by interpreting the Convention in ways that it was never intended to do so.

This is not the first time that Sumption has made such claims. Back in 2016, Sumption argued that the Court was “the international flag-bearer for judge made fundamental law extending well beyond the text which it is charged with applying”. Sumption’s claims chime with the idea, popularized by some politicians, that Strasbourg judges routinely exceed their authority in order to impose changes on and meddle with law in the UK and, in doing so, “abuse” human rights.

If you are a gay or lesbian person reading this, you might be particularly irked by Sumption’s remarks. And if you are irked, it’s probably because you know that, whilst the Strasbourg Court has certainly played an important part in bringing about changes to UK laws that once discriminated against people on the grounds of sexual orientation, the Court has also frequently adopted a conservative interpretation of the Convention and, much to the disappointment of gay men and lesbians, rejected complaints about sexual orientation discrimination.

When it comes to sexual orientation issues, it is restraint rather than activism that has usually been a hallmark of the Strasbourg approach to interpreting the Convention. So, whilst Sumption would have us believe that the Court has invented mechanisms – like its “living instrument” doctrine – to enable it to give rights away to everyone, the reality is that the Court is usually very careful and cautious in evolving its interpretation of the Convention. And in terms of sexual orientation discrimination, the Court’s approach has often proved extremely frustrating and damaging.  

For example, take the criminalization of private same-sex sexual acts between consenting adults. Although such criminalization no longer exists in Europe, it did exist in several countries when the Convention came into force. In 1955, a man who had been imprisoned in Germany for “two cases of homosexuality” under law previously enacted by the National Socialist German Workers’ (Nazi) Party complained to Strasbourg about his treatment. Strasbourg rejected the complaint and, in relation to the right to respect for private life enshrined in Article 8 of the Convention – which Sumption claims has been stretched beyond recognition by the Court – stated that this permitted a state to make homosexuality a punishable offence. It took 26 years for Strasbourg to change its mind on this when, in the famous case brought by Jeffrey Dudgeon, it declared that the complete criminalization of same-sex sexual acts in Northern Ireland was in violation of Article 8. However, even in 1981, Strasbourg was quite comfortable to let the UK maintain a higher minimum age for male same-sex sexual acts, and it was only in response to a complaint by Euan Sutherland in the late 1990s that Strasbourg recognized that an unequal “age of consent” was in violation of the Convention.

Nearly every aspect of sexual orientation discrimination complained about in the Court has followed the same pattern. Complaints about such discrimination have been rejected time and time again, until Strasbourg has finally come around to recognizing a further aspect of “gay rights” under the Convention. And this is because the Strasbourg approach is always cautious and, as Judge Sicilianos has put it, the Court has “always sought to avoid the evolutive interpretation of the Convention from being perceived … as a sort of ‘carte blanche’ allowing for excessive liberties with the text of the Convention”. The Court has avoided such excessive liberties by developing interpretative mechanisms that pay attention to the intentions of those who wrote the Convention, and the “present-day” conditions in which the Convention operates. One such way that the Court does this is by taking into account European consensus on certain issues that come before it, so as to be guided by “present-day” conditions rather than its own view of what societal conditions should be.

The Court’s restrained approach is often a disaster for gay men and lesbians. The clearest contemporary example of this is the Court’s repeated refusal to recognize that the right to marry enshrined in the Convention places states under an obligation to grant same-sex couples access to marriage. Completely contrary to Sumption’s view of what the Court does, the Court has resolutely refused to evolve its interpretation of the right to marry in such a way that would make same-sex marriage an effective human right. As such, the Court’s current position makes the Convention inapplicableto same-sex couples who are excluded from marriage in European countries, including in one part of the UK.

So I am irked by Sumption’s claims that the Court is usurping state power and meddling in things that should be left to governments and the ballot box. Not only is this not true, some of us wish it were true. If you are a gay man or lesbian in a European country where you have very few rights, are subject to horrendous forms of discrimination, and are at the mercy of a majority who will not support legal change by parliamentary means, then you look to the Strasbourg Court for help. Unfortunately, because the Strasbourg Court often behaves in exactly the opposite way to how Sumption describes it, it is often unwilling to extend the protection of the Convention to gay men and lesbians in ways that would challenge homophobic domestic laws. To put it simply, when gay men and lesbians knock at Strasbourg’s door and ask for help, they very often have the door slammed in their faces.

The European Court of Human Rights is the conscience of Europe. It interprets a Convention that opens with the commitment to the maintenance and further realization of human rights. To further realize human rights the Court must evolve its interpretation of the Convention and, therefore, it must be encouraged to do so. We – the “everyone” that the Convention secures human rights and fundamental freedoms to – must demand, encourage and support the Court in interpreting the Convention in ways that challenge prevailing forms of inequality and discrimination in European countries. That’s why Sumption is wrong that human rights law should not, for the most part, be used to decide sensitive issues which should be decided through the ballot box. Such a view encourages Strasbourg to be cautious; on the contrary, we should encourage Strasbourg to be bold in realizing a vision in which human rights law prevails in Europe.


Listen to some of the gay men and lesbians from the UK who have taken cases to Strasbourg here: https://goingtostrasbourg.com/podcast

Barnard & Peers: chapter 9, chapter 20
Photo credit: ECHR Sexual Orientation Blog


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Dr. David Fernandez-Rojo, University of Deusto

On 6 October 2016, the European Border and Coast Guard (EBCG), the successor of FRONTEX, was officially established. Less than two years after the adoption of Regulation (EU) No. 2016/1624, the president of the European Commission announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to, once more, reinforce FRONTEX. On the same day, the Commission proposed an updated version of the Regulation establishing the recently adopted EBCG, which (following agreement between the European Parliament and the Council) was one of the very last textsvoted at the European Parliament under the 2014-2019 mandate. In particular, on 17 April 2019, the Parliament adopted the proposal put forward by the European Commission to further strengthen the EBCG with a standing corps of 10,000 border guards with executive powers by 2027. It is now only a question of time until the Council adopts the Regulation (henceforth referred to as Regulation 2019/XXX). (The provisionally agreed text of the new Regulation is here.) This blog post centres on comparatively analysing the most controversial, significant and novel operational tasks conferred by Regulations 2016/1624 and 2019/XXX to the EBCG. (See earlier this analysisof the new powers concerning returns and data sharing, and of the accountability of the agency in human rights terms).


Article 3(2) Regulation 2016/1624 conferred a monitoring role to the EBCG in order to guarantee a common strategy for the management of the European external borders. The EBCG may now deploy its own liaison officers in the Member States with the aim of fostering cooperation and dialogue between the agency and the competent national authorities (Article 12(3) Regulation 2016/1624). The EBCG liaison officers, who are deployed on the basis of a risk analysis carried out by the agency, should regularly inform the agency’s Executive Director about the situation at the external borders and assess the capacity of the concerned Member State to effectively manage its borders (Article 12(3)(h) Regulation 2016/1624). These responsibilities have been further detailed in Article 32(3) Regulation 2019/XXX.

The information that the liaison officers gather contributes and facilitates the preparation of the EBCG’s vulnerability assessments. At least once every three years, the agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infrastructure, and adequately skilled and trained staff of the Member States for border control (article 33(2) Regulation 2019/XXX).

The monitoring powers conferred to the EBCG are reflected in article 33(10) Regulation 2019/XXX, which signals that if the recommended measures are not implemented in a timely fashion and in an appropriate manner by the concerned Member State, the EBCG’s Executive Director shall refer the matter to the Management Board and inform the European Commission. The Management Board shall then make a decision, based on the original proposal of the Executive Director, describing the necessary measures to be taken by the Member State and the time limit within which such measures shall be implemented. Importantly, Article 33(10) Regulation 2019/XXX explicitly declares that the decision of the Management Board is binding on the Member State. It remains to be seen as to the position of the national authorities within the EBCG’s Management Board and whether they will adopt measures that effectively ensure that a concerned Member States tackles the vulnerabilities identified in its external borders.

While it is still early to assess to what extent Regulation 2019/XXX improves the functioning of the vulnerability assessment and the swift deployment of liaison officers initiating by Regulation 2016/1624, a novel mechanism of impact levels to external border sections has been designed. Articles 35 and 36 Regulation 2019/XXX state that the EBCG, in agreement with the Member State concerned, may declare four different impact levels and reactions with the aim of swiftly addressing at a given border section a crisis situation.

-          When the EBCG declares a low impact level, the competent national authorities shall “organise regular control (…) and ensure that sufficient personnel and resources are being kept available for that border section” (Article 36(1)(a)).

-          If a medium impact level is established, the concerned Member State shall “ensure that appropriate control measures are being taken at that border section” (Article 36(1)(b)).

-          Where a high impact level is declared the national authorities are encouraged to request operational assistance from the EBCG (Article 36(1)(c)).

-          The EBCG may temporarily determine at a given border section a critical impact level, which shall be communicated to the European Commission. Under this scenario, the EBCG’s Executive Director will recommend the Member State concerned to request the EBCG’s operational assistance through the initiation of a joint operation or a rapid border intervention (Article 42(1) Regulation 2019/XXX).

While the obligations for the national border authorities under the low, medium and high impact levels are quite vague, under the critical scenario the Member State concerned shall respond, providing justifications for its decision, to the recommendation of the Executive Director within six working days (Article 42(2)). According to Article 43 Regulation 2019/XXX, should the Member State ignore the EBCG Executive Director’s recommendation, the Council, on the basis of a proposal from the European Commission, may adopt a decision by means of an implementing act, identifying measures to mitigate those risks and requiring the Member State concerned to cooperate with the agency in the implementation of those measures.

The EBCG’s Own Equipment and the Standing Corps of Border Guards

With the objective of reducing the dependence of the EBCG on the Member States’ technical equipment, Article 38 Regulation 2016/1624 stipulated that the agency may acquire its own technical equipment to be deployed during joint operations, pilot projects, rapid border interventions and return operations. In this regard, Article 63(4) Regulation 2019/XXX points out that where the EBCG acquires or co-owns equipment such as aircrafts, helicopters, service vehicles or vessels, the agency shall agree with a Member State the registration of the equipment as being on government service.

It is true that the European Commission has now a strong budgetary commitment to ensure that the EBCG acquires or leases technical resources but the agency still lacks the necessary structures and expertise to effectively manage its own equipment. Regulations 2016/1624 and 2019/XXX do not design a clear framework of the EBCG’s responsibility, and continues to be highly questionable whether the Member States will authorise the registration of equipment that is beyond their control.

Furthermore, a key operational power introduced by Regulation 2016/1624 was the establishment of a Rapid Reaction Equipment Pool, consisting of technical equipment to be deployed in rapid border interventions within 10 working days from the date that the Operational Plan is agreed upon by the Executive Director and the host Member State. The EBCG may contribute to the Rapid Reaction Equipment Pool with its own resources and the Member States could no longer shirk their responsibilities by alleging that they are faced with an exceptional situation substantially affecting the discharge of national tasks (Article 39(7) Regulation 2016/1624). In accordance with Article 20(5) Regulation 2016/1624, the competent national authorities shall make available a minimum of 1,500 border guards to the EBCG for their immediate deployment in joint operations and/or rapid border interventions.

While the establishment of a Rapid Reaction Pool of 1,500 was a positive measure for emergency situations at the external borders, Regulation 2016/1624 did not manage to overcome the insufficient pooling of Member States’ border guards for concrete locations and concrete periods in regular joint operations. For this reason, Regulation 2019/XXX centres on designing a permanent, fully trained and operational Standing Corps of 5,000 Border Guards by 2021 and 10,000 by 2027 based on the distribution key set out in Annex I to Regulation 2019/XXX.

Pursuant to Article 55(1) Regulation 2019/XXX, the Standing Corps is composed of four categories of border guards:

-          Operational staff members of the agency (Article 56)
-          Operational staff seconded from Member States to the agency for a long-term deployment (Article 57)
-          Operational staff from Member States ready to be provided to the agency for a short term deployment (Article 58)
-          Operational staff from the Member States ready to be deployed for the purpose of rapid border interventions (Article 59).

The EBCG’s operational staff members is a new category of staff designed by Regulation 2019/XXX in order to ensure the effective management of the external borders. Regarding the other three categories of border guards, the Member States are obliged to second to the agency operational staff with the aim of ensuring at all times the availability of border guards to be deployed. However, the main novelty is not so much the establishment of the Standing Corps, but rather the fact that the Standing Corps deployed as team members (category 1) are conferred executive powers (Article 55(3) Regulation 2019/XXX) such as verifying the identity and nationality of persons, authorising or refusing of entry upon border check, stamping of travel documents, issuing or refusing of visas, patrolling or, registering fingerprints (Article 56(5) Regulation 2019/XXX). Importantly, Article 83 Regulation 2019/XXX states that the performance of executive powers by the EBCG’s operational staff members shall be subject to the authorisation of the Member State that is hosting the operation.

As the Meijers Committee and the European Council on Refugees and Exiles rightly noted, conferring executive powers to the EBCG’s operational staff members may breach the primary law provisions that regard the Member States as ultimately responsible for their own internal security and external border management. While the European Commission considers that Article 77(2)(d) TFEU provides the legal basis to bestow upon the EBCG’s staff members executive tasks if they are clearly defined to match the objective of the establishment of an integrated management system for external borders, Article 77(2)(d) TFEU shall also be read in light of Articles 72 and 73 TFEU.

Article 72 TFEU states that the competences that the EU enjoys in the AFSJ “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. In other words, the EU cannot replace the Member States’ prerogatives of coercion and “EU agencies are therefore limited to supporting actions of national authorities, except (and only) to the extent that the Treaty confers express powers to act on such agencies” (see, PEERS, EU Justice and Home Affairs Law: EU Criminal Law, Policing, and Civil Law, Volume II, London 2016, 27). Relatedly, Article 4(2) TEU provides that “the Union (…) shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”.

Furthermore, Article 73 TFEU indicates that “it shall be open to Member States to organize between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security”. Hence, while competences are shared between the EU and the Member States in the AFSJ (Article 4(2)(j) TFEU), Articles 72 and 73 TFEU limit the powers conferred to the Union in matters directly linked to Member States’ national sovereignty (Article 2(6) TFEU).

Taking Stock of the Novel Operational Powers

Currently, Article 8(2) Regulation 2019/XXX specifies that “the multiannual strategic policy for the European Integrated Border Management shall define how the challenges in the area of border management and return are to be addressed in a coherent, integrated and systematic manner (…)”. That is, the national authorities in charge of border management shall conform to the strategy adopted by the EBCG (Article 3(3) Regulation 2016/1624 and 8(6) Regulation 2019/XXX). Member States shall abstain from conducting “any activity which could jeopardise the functioning of the Agency or the attainment of its objectives” (Articles 8(2) Regulation 2016/1624 and 7(5) Regulation 2019/XXX). To this end, the EBCG is authorised to supervise the effective functioning of the national external borders, undertake vulnerability assessments, monitor whether a Member State is qualified to effectively implement the applicable EU legislation, and detect deficiencies in the management of the national borders.

The EBCG is thus conferred a supervisory and intervention role, which allows the agency to adopt quasi-binding measures for the Member States and to directly intervene in the territory of the Member State if such measures are not effectively implemented (Article 18 Regulation 2016/1624 and 43 Regulation 2019/XXX). In the event that a Member State neither adopts the measures recommended in its vulnerability assessment, nor requests/takes necessary actions in the face of disproportionate and sudden migratory pressure, the EBCG shall ensure a unified, rapid, and effective EU response so as not to jeopardise the functioning of the Schengen area. In this situation and according to Article 43(1) Regulation 2019/XXX, “the Council, on the basis of a proposal from the Commission may adopt without delay a decision by means of an implementing act, identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures”.

Since the Council decision is adopted, the EBCG’s Executive Director shall, within two working days, draft an operational plan and submit it to the Member State concerned (Article 43(4) Regulation 2019/XXX). Once the operational plan is submitted, the agency’s Director and the Member State concerned shall agree on concrete actions to be adopted, including the deployment the necessary operational staff from the European Border and Coast Guard standing corps, for the practical execution of the measures identified in the Council’s decision.

Article 43(8) Regulation 2019/XXX requires the Member State concerned to comply with the Council decision by cooperating with the EBCG and taking the necessary actions to facilitate the implementation of the Council’s decision and the agency’s operational plan. However, these obligations are tempered when Article 43(9) Regulation 2019/XXX indicates that the European Commission may authorise the reestablishment of border controls in the Schengen area, provided that the concerned Member State neither executes the decision adopted by the Council, nor agrees with the EBCG’s Operational Plan within 30 days. Ultimately, the Member State concerned subject to the EBCG’s “intervention” shall expressly consent and agree with the agency in regards to the operational support that will be provided in its external borders as to ensure the functioning the Schengen area (Article 43(5) Regulation 2019/XXX).

Towards a European Corps of Border Guards?

Regulations 2016/1624 and 2019/XXX introduce the new EBCG as a guarantor of an integrated management of the European borders. In the European Commission’s own words, “by setting new standards and imbuing a European culture within border guards, the European Border and Coast Guard will also become a blueprint on how EU border management should be implemented”. Both Regulations 2016/1624 and 2019/XXX clearly strengthen the EBCG’s autonomy since the agency will depend to a much lesser extent on the specific operational secondments and support of the Member States. The EBCG should finally have its own equipment and operational personnel for its immediate deployment in joint and rapid operations. However, the most controversial, significant and novel operational powers included in Regulations 2016/1624 and 2019/XXX consist in introducing the agency’s capacity to “intervene” and granting executive powers to the agency’s staff members respectively.

On the one hand, Regulation 2016/1624, in order to avoid endangering the functioning of the Schengen area, entitled the EBCG to intervene if a Member State decides not to implement the measures recommended by the Executive Director to tackle the weaknesses detected at its external borders, or if the Member State does not request operational assistance in the face of disproportionate and sudden migratory pressure at its borders. However, it is debatable to what extent the agency is able to impose the application of certain measures to a Member State that is opposed to them. Regulation 2016/1624, and now Regulation 2019/XXX, do not provide much clarity in this respect, which is a common feature of those European Union legislative instruments in charge of regulating highly sensitive competences that require the support of national authorities.

On the other hand, Regulation 2019/XXX confers executive powers to the EBCG’s standing corps deployed as team members. While these executive powers may ensure a more effective, integrated and supranational administration of the European external borders, these activities also entail a significant, and difficult to control, degree of discretion that excessively stretch the Treaty provisions establishing the Member States as ultimately responsible for their own internal security and external border management.

Although it is true that the EBCG will assist more independently the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the Management Board will continue to tightly control the agency’s recently reinforced operational and supervisory functions. Only two representatives of the European Commission have voting rights in the EBCG’s Management Board and, the presence of the European Parliament is non-existent. The Member States have thus ensured control of the strategic operational powers and the daily management of the agency.

Consequently, despite the fact that the name of the EBCG may lead to misunderstanding and even the European Commission constantly refers to the agency as a true European system of guarding borders and coasts, Regulations 2016/1624 and 2019/XXX do not create a European Corps of Border Guards with full and exclusive competences in border management. Nevertheless, Regulations 2016/1624 and 2019/XXX do reveal how difficult still is to strike a balance between designing an effective integrated strategy for the management of the European external borders and the Member States’ resistance to confer operational powers directly linked to their core national sovereignty. It is still early to conclude if we are only facing another revision of FRONTEX’ initial mandate as a reaction to an unprecedented migratory pressure or, on the contrary, Regulations 2016/1624 and 2019/XXX constitute the definitive step that will facilitate in the future the establishment of a European Corps of Border Guards with full executive, implementation and decision-making powers in the management of the European external borders.

Barnard & Peers: chapter 26
JHA4: chapter I:3
Photo credit: www.bmi.bund.de


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