Tuesday, 16 July 2019

Vorsprung durch Technik? Audi scores victory in trade mark appeal before the EU General Court




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 registered EU 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-109/07 and 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.


Tuesday, 2 July 2019

Should the EU sanction its Member States for breaches of rule of law and human rights? Part 1: The Legal Framework




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 outside the 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 warning if 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 risk to 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 persistent breach’ 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 opinion addressed 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 implementation of 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. (Update, Sep 1 2019: the Council's internal rules on Article 7 hearings have now been published). 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 another Member State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘the Member 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