The Justices of the UK Supreme Court: The Enemies of Anti-democratic Demagogues

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The Cherry/Miller case ([2019] UKSC 41) reached its zenith on Tuesday morning, with a most newsworthy outcome; a unanimous decision that Prime Minister Johnson's Prorogation of Parliament was unlawful, thus a legal nullity and of no legal effect (at para. 69 of the judgment). The UK Parliament, having been put illegally to sleep, awoke on Wednesday morning with collective amnesia, and emerged refreshed from a dreich shower like Bobby Ewing, to get back to work and to normality.

The timing of the judgment couldn’t have been more fortuitous for purveyors of constitutional law idioms, anecdotes and folklore - thousands of law freshers at dozens of university law schools across the four nations of the UK will be treated to a plethora of twitter feeds, bad puns and embarrassing GIFs of politicians by law lecturers trying to make sense of it all, all of them feeling a bit smug and secretly delighted that constitutional law is at last hip, happening and dare say, even sexy.

As I have discussed previously, (here, here and here) the Scottish courts and the English High Court received applications from aggrieved members of the public, legal experts and politicians, extremely worried about Prime Minister Johnson's received wisdom to prorogue Parliament for 5 weeks through September and October 2019, at a time of immense constitutional upheaval and crisis, given the impending deadline of Halloween and the horror of a No-Deal Brexit. At first instance in Scotland, the petitioners in Cherry lost, Lord Doherty in the Outer House of the Court of Session deferring to the Prime Minister and the UK government's lawyer in Scotland view that the matter of prorogation was a matter of high politics, not law and thus beyond the purview of the courts. Similar sentiments furth of the Forth, led the English High Court, unanimously, to hold that Gina Miller's Judicial Review application was also asking an impertinent, essentially non-justiciable question.

Legal orthodoxy seemed to point to these claims being closed down on this well-established maxim of non-justiciability. Case(s) closed.

On appeal in Scotland to the Inner House of the Court of Session, the triumvirate of Lord Carloway, Brodie and Drummond-Young, (now colloquially known in legal circles as the Inner House 3) unanimously overturned the opinion of Lord Doherty in the lower Outer House. The egregious nature of the Prime Minister's decision meant that the matter was justiciable. It was a legal question: The questioning of an improper use of the royal prerogative.

The Supreme Court has largely vindicated the view of the Inner House 3, albeit with some differences of opinion (see Professor Mark Elliot's blog here). The Supreme Court, in a very rare show of absolute solidarity, made all the more amazing by the fact that the decision was made by an 11-strong bench, decided unanimously that the Prime Minister had acted unlawfully in advising the monarch to prorogue Parliament.

It is fair to say that the judgment, like Brexit itself (although the case is only indirectly concerned with Brexit), has divided the legal community, the general population and the politicians. It has polarised opinion like no other case before it.

At any level, the judgment is a remarkable one. However, its remarkableness is difficult to define and pin down, however the main reasons the opinion is remarkable are as follows.

First, as mentioned already, the judgment was a unanimous decision by 11 of the most eminent justices this country has produced. In the only other 11-strong bench case, the related case of Miller 1 ([2017] UKSC 5), the best the judges could agree on was an 8-3 split, with the dissenters even divided on their reasons for dissenting. In the Torture Evidence case (A (FC) v Secretary of State for the Home Department ([2005] UKHL 71), a seven strong bench of the House of Lords came close to being unanimous on all aspects of that case. The ability of Lady Hale to get another 10 strong willed, independent jurists to coalesce around a particular view of the facts and of the law is indeed remarkable.

Second, the judgment is a document of elegance, clarity and brevity, with a distinctly narrative feel. For such a constitutionally significant case, the text is remarkably light in size and in deployment of weighty legal justifications. The judgment is only 24 pages long and constitutional law academics, if marking this legal script, would berate the authors for only using the bare bones of the vast corpus of judicial precedent that was available. The Inner House 3 and the advocates before that house (and when in the Supreme Court), conversely, drew on a vast well of legal authorities to justify their stance. That judgment extended to 68 pages and was replete with judicial and historical precedents. The Supreme Court was content to produce a narrative judgment, drawing on grand constitutional principles and expectations.

The question beget by this brief, elegant and decidedly law-free judgment is why is it structured so?

The answers are not hard to discern and determinedly lie in the political sphere.

The Supreme Court, almost contemporaneously with the Cherry/Miller case, will celebrate its 10th anniversary in the next few weeks. It began life on the 1st of October 2009. It is fitting that the Supreme Court made such a historic judgment on the eve of its 10 year anniversary, for the judgment is a fine example of the court flexing its constitutional muscles. The Supreme Court is transforming itself into a Constitutional Court and with the Cherry/Miller case, the court has burnished its constitutional court credentials.

A defining feature of any constitutional court is that it decides decidedly political cases that deal with high politics and the inner workings of the constitution of that state. To that extent, the Supreme Court of the United Kingdom, absolutely performed a constitutional court function on Tuesday morning.

The judgment had to have the look and feel that it did for a number of important political reasons.

The judgment had to be unanimous because in this febrile environment, any dissent in the Supreme Court would be seized upon by Brexiteers and detractors that the decision was legally uncertain, incorrect and the will of arch Remainers. Thus, the justices were determined to present a united front that sent a powerful message that the highest members of the judiciary were at one on this matter, irrespective of their political views, of their particular areas of legal expertise and their longevity on the highest court of the land. The judges chose to put forward a coherent, decisive legal view to try and provide legal certainty for the whole country.

Further, these two cases that were sent to the Supreme Court posed an existential threat to the United Kingdom. The Scottish Court had unanimously held that the matter was justiciable and that on forensic investigation, the Prime Minister had acted unlawfully. Diametrically opposed to that, the English High Court refused to adjudicate on the matter, citing classic cases on non-justiciability. Scotland overwhelmingly voted to Remain in the 2016 referendum and England narrowly voted to Leave. These facts would have played heavily on the minds of the 11 justices. To simply dismiss the Inner House unanimous decision, expressly overrule that decision and affirm the English High Court view would be to imperil the unity of the United Kingdom. In such a situation, Scottish politicians, jurists and the general Scots populace writ large would arguably be more empowered and more likely to question their place in the United Kingdom. Remarkably, the Supreme Court drew heavily on the original view of the Inner House 3, simply stating that the advice of Boris Johnson to the Queen to prorogue Parliament…' was unlawful, null and of no effect and should be quashed.' (para. 69 of the judgment). Implicitly, the UK Supreme Court was simply endorsing the view of the Inner House and adopting the extensive legal declaratory power and jurisdiction of the Supreme Court of Scotland. The judgment, in so doing, managed to cleverly bring the UK jurisdictions closer together, neatly avoiding legally complex and technical questions on the nature of remedies north and south of the border.

The narrative nature of the judgment was also remarkable but entirely reasonable given the unique background to the case. The three day legal hearing from last week was eagerly watched by people across the globe and the judgment has been downloaded thousands of times and it made global news headlines. It was obvious that people were immensely interested in the case, and as such the justices would have been keen to make the law as accessible as possible, and the most obvious way to do so would be to demystify the law and use everyday, ordinary language. Alongside this imperative, the immense pressure to resolve the case quickly meant that the justices were under great time constraints, resulting in a pared down judgment that merely discussed the nub of the arguments. Further, the fact that the judgment would be desired to be read way beyond Westminster, Whitehall and the Windsor family, necessitated the rejection of excessive legalese and obscure references to historical events and laws.  The judgment is a masterful, accessible constitutional lecture on the grand overarching themes, laws, rules and conventions that constitute the living UK constitution.

The judgment has its detractors from all sides. It is too simplistic. It is too political. It is too lite on the law. It is too glib. It is interfering in politics. All of these criticisms can be legitimately levelled at the judgment. The strongest criticism is that of interference in politics. However, the judgment can be defended exactly on that basis. Parliamentary sovereignty was placed at the apex of the judgment. Alongside parliamentary sovereignty, the court was concerned to place parliamentary accountability at its side, an equal partner in the UK constitutional framework. In so doing, the court thus justified its interference in questions of politics. The current political impasse has illustrated the ineffectiveness of the parliamentary accountability process in holding the Prime Minister and the wider executive to account. Therefore, for the court to simply defer to parliamentary accountability would be a dereliction of duty, particularly in a situation where it is clear that these political mechanisms, both currently and in the near future, would manifestly fail to produce a satisfactory resolution. The court was thereby forced to act to restore equilibrium to the tripartite separation of powers, the central tenet of the UK constitution. In so doing, the court also gave powerful effect to a central tenet of the Leave campaign from 2016: the Supreme Court of the UK took back control and gave Parliament back its sovereignty.

Barnard & Peers: chapter 27

Photo credit: Pamela Ewing

Self-employed new mothers and EU free movement law: the CJEU delivers the obvious conclusion

Professor Steve Peers, University of Essex

* For more on EU free movement law issues, see the forthcoming second edition of the commentary on the EU Citizenship Directive, by Elspeth Guild, Steve Peers and Jonathan Tomkin – published soon

What happens when an EU citizen moves to another Member State, and has a baby? New parents likely face some sleepless nights in any event; but should new mothers in particular lose further sleep at the prospect of losing their status under EU free movement law? The CJEU, having ruled on this issues as regards employed new mothers in 2014 (the Saint-Prix judgment, discussed here), has now extended its case law to cover self-employed women who take a maternity break, in its recent judgment in Dakneviciute.

Background

The main EU law on EU citizens’ right to move and reside in another country – often known as the ‘citizens’ Directive’, does not provide for unlimited rights for EU citizens to go and live in another Member States. To exercise free movement rights, EU citizens must be employed, self-employed, students, have sufficient resources, or be a family member of someone in one of those categories (as further defined by the Directive, the EU Treaties, and relevant case law). After five years’ residence in accordance with this EU law, they obtain the right to permanent residence, at which point such conditions no longer apply.

Mothers-to-be who are in paid work as as the baby’s birth approaches often simply take maternity leave from their current employer, and then return to work for that employer some time after the baby is born. This is underpinned by a separate EU law on pregnant workers, which prohibits dismissal of women who are pregnant or on maternity leave save for ‘exceptional cases’ (on these exceptions, see the CJEU judgment in Porras Guisado). Equally, the same law guarantees continuation of an employment contract (except for a possible one-year waiting period to qualify for maternity pay).  In principle this should mean that the women concerned remain workers under free movement law, so they should be at no risk of losing status under that law.

The difficulty is for women who were employed but who gave up their current work before the birth (as in Saint Prix) or who are self-employed (as in Dakneviciute). Do they retain status as workers or self-employed persons under free movement law despite this? The citizens’ Directive says that status is retained in the event of: temporary inability to work ‘as the result of an illness or accident’; involuntary unemployment after being employed more than one year, if registered as a job-seeker; involuntary unemployment after being employed for less than one year, or if a fixed-term contract period of less than a year has ended, if registered as a job-seeker, although retention of status might in these cases only last for six months; or taking up vocational training, which must be linked to the prior employment unless the EU citizen is involuntarily unemployed.

In the Saint Prix case, the EU citizen dropped her teacher training course when she became pregnant, did some short-term work, and then gave up looking for work as the due date for her baby became closer. So she did not qualify under the citizens’ Directive’s rules for retaining worker status. However, the CJEU ruled that those rules were not exhaustive. In the Court’s view, the notion of ‘worker’ came first and foremost from the primary law of the EU Treaties, and covered someone who had previously worked in that State, given up work due to the physical impact of late pregnancy, and returned to work within a ‘reasonable period’ afterward. That period was to be defined taking account of the ‘specific circumstances of the case’, as well as national law on maternity leave, which must be at least 14 weeks in order to comply with the EU law on pregnant workers, although Member States can set longer periods. In fact a later judgment in the UK applied a one-year period in principle to such cases.

Subsequently, in its 2017 judgment in Gusa (which did not concern pregnancy), the CJEU ruled that self-employed EU citizens who became involuntarily no longer self-employed after one year should be treated the same as having retained their self-employed status, on the same basis that workers retain it under the citizens’ Directive in the event of involuntary unemployment.

Facts and judgment

Ms Dakneviciute was employed in the UK, then became a self-employed beauty therapist when she became pregnant. After her baby was born, she briefly returned to self-employment, then briefly claimed benefits, then became employed again. This dispute concerned her eligibility for child benefit: the UK authorities claimed that she did not qualify for it, because she did not have a sufficient right to reside. Uncertain as to whether the Saint Prix judgment applied to the self-employed, even despite the Gusa judgment in the meantime, a UK tribunal asked the CJEU to clarify whether previously self-employed new mothers retained status under free movement by analogy with previously employed new mothers.

The Court ruled that Ms Dakneviciute did retain her status, which meant that she was eligible for child benefit. Previously case law had treated employed and self-employed EU citizens in a unified way; the Saint Prix case applied by analogy; applying Gusa (which had referred to the vulnerability of unemployed EU citizens), pregnant women are vulnerable, whether they are employed or self-employed; and the EU had adopted a law on self-employed pregnant women, which refers to maternity leave on a similar basis as the EU law on pregnant workers.

Furthermore, the Court rejected the UK government’s argument that self-employed women could easily send someone to replace them during a maternity break. This was apparently an interpretation of the Gusa judgment (see paras 21 and 38 of the Dakneviciute judgment), although the Gusa judgment made no point about replacing individual self-employed persons. Finally, as in the Saint Prix judgment, the Court referred to the rules in the citizens’ Directive on obtaining permanent residence, which provide that a single absence of up to one year for pregnancy or childbirth (or other ‘important’ reasons) does not stop the clock as regards obtaining the five years’ residence necessary to qualify for permanent residence.

It followed that a previously self-employed EU citizen new mother retains her status of being self-employed, provided that she returns ‘to the same or another self-employed activity or employment within a reasonable period after the birth of her child’.

Comments

In light of the Saint Prix and Gusa judgments, the Court’s ruling that previously self-employed EU citizen new mothers retain their status is unsurprising.  A non-lawyer might even describe it as a statement of the bleeding obvious. It is striking that the UK government continued to fight the case, including by an interpretation of the Gusa judgment that has no basis in that judgment. Nor does that argument have any basis in the Advocate-General’s opinion in Gusa, which actually conversely said (in paras 72 and 73) that Saint Prix applied by analogy to self-employed persons. With great respect, the UK tribunal should not have given the government's argument the time of day.  

The most pressing practical question for previously self-employed EU citizen new mothers is how to determine the ‘reasonable length of time’ which they have to take up employment or self-employment in order to retain their status. The Court makes no suggestion about how long that might be, perhaps because it was conceded in the national courts that if Ms Dakneviciute retained her free movement status, she had obtained new work within a reasonable period of time (see para 19 of the judgment: perhaps this concession was in light of national case law referred to above). In practice, the EU law on self-employed pregnant women, like the EU law on pregnant workers, refers to a minimum period of 14 weeks, with Member States free to exceed that minimum (as the UK has done). Unlike in Saint Prix the Court does not refer again to also taking account of specific circumstances of the new mother’s case; but since the Court was applying that earlier judgment by analogy, this omission may well be accidental.

What is the impact of Brexit? In the event that the withdrawal agreement is ratified, the citizens’ rights provisions (discussed here) retain existing law (including case law) for UK citizens who move to the EU27, and EU27 citizens who move to the UK, before the end of the transitional period in the agreement (which is end 2020, with a possible extension of one or two years). In the event of leaving the EU without an agreement, the UK could chip away at these rights for EU27 citizens, even if they were already resident before Brexit Day – and EU27 States could do likewise for UK citizens. However, although both of these cases came from the UK courts, they will still be relevant to the remaining Member States (ie Irish citizens moving to Germany) in any event.

Finally, there’s a broader social and historical context to this judgment. The Court expressly mentions the vulnerability of pregnant workers. But new mums in Ms Dakneviciute’s position are also vulnerable as people who are migrant EU citizens, unemployed, and previously lower paid.  The Court’s judgment cuts through this intersectionality of sex, nationality and social class to guarantee access to child benefit regardless. Yet there’s a fin de siècle feeling to this ruling: in six weeks’ time, the UK might be able to disapply it to EU citizens in future. Benefits and unemployed people are obvious targets of the xenophobia that cynical politicians stoke.

Barnard & Peers: chapter 13; chapter 20

Photo credit: Coraims

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.

Unfinished Business: The European Parliament in the negotiations for reform of the Common European Asylum System

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

Judicial Independence and Maltese courts: Is a microstate about to provide EU rule of law with its Van Gend moment?

Justin Borg-Barthet, Senior Lecturer in EU Law at the University of Aberdeen*

In fifteen years of EU membership, Maltese courts have been remarkably reluctant to refer questions of interpretation to the CJEU.  This could be about to change in litigation which could have far-reaching consequences for the direct effect of member states’ rule of law and human rights obligations.  The dispute raises important, novel questions concerning the extent to which EU law of a classical constitutional nature could be democratised in much the same manner as the law of the internal market was democratised through Van Gend.

In the case of Pace Axiaq et al vs Prim Ministru, an NGO has asked the Civil Court to seek a preliminary ruling concerning the compatibility with EU law of Malta’s system of judicial appointments.  The NGO contends that a system which grants the executive absolute power over appointment and promotion breaches the right to a fair trial and the right to an effective remedy (Art 19 TEU and Art 47 Charter of Fundamental Rights).  The applicants also seek to enjoin the government to refrain from making further appointments to the bench until constitutional reforms have been implemented.

In a decree issued on 22 May 2019, the Civil Court rejected the Maltese government’s request to summarily dismiss the case.  The Court found that, while the applicants could not rely on the Maltese Constitution or the ECHR, they did have a juridical interest insofar as they rely on EU law. 

The case, should it be referred to the CJEU, would enable the further development of jurisprudence through which the Luxembourg court has operationalised the rule of law in the EU.  In particular, it could render individuals enforcers of the principles in the Juizes Portugueses judgment (discussed here) in which it was held that “every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection” (para 37).

Systematic backsliding in the absence of systemic change

The applicants in Pace Axiaq rely in great measure on the ongoing proceedings in Commission v Poland (discussed further here).  Their submissions refer also to the damning indictment of Malta’s rule of law failings in a report by the Council of Europe’s Venice Commission.  The report, which was prompted by the assassination of journalist Daphne Caruana Galizia, noted that the independence of the judiciary is severely compromised by the present system of appointments.

The Maltese government has, in fact, committed to introducing legislation which will make the judiciary self-perpetuating, thereby severing the executive’s control over the judicial branch.  The catch, however, is that appointments to the bench have continued; indeed, six appointments were made quite hurriedly following the filing of Pace Axiaq.  The net effect is that partisan capture could be perpetuated if a secure partisan majority of judges is installed by the executive prior to any legislative innovation.  As former ECHR judge Giovanni Bonello observes, permanent capture is quite likely given that the vast majority of judicial appointees since the 2013 change of government have either occupied a prominent role in the governing party or have close family or business relations with persons who do. 

Equally importantly, the threat to the independence of the judiciary is to be considered in a broader context of institutional capture.  The Maltese constitution relies on trust insofar as the separation of powers is concerned.  The executive has extensive powers of appointment and removal of officials responsible for the enforcement of criminal law, including financial regulation required by EU law. This has always been problematic in conceptual terms, and internal criticism is not a new phenomenon.  Recent events, however, demonstrate that there has been significant movement towards a deliberate culture of impunity in the highest political offices.  Erosion of the independence of the judiciary therefore takes on an altogether more worrisome flavour given many considered the judiciary to be a significant bar to the further (or complete, by some accounts) erosion of the rule of law, and the principle of sincere cooperation.

Malta is not Poland, but…

The Maltese rule of law crisis is distinguishable from its better-known Polish counterpart, however.  Poland has adopted regressive laws following EU membership, and thereby compromised the standard of judicial independence which had been scrutinised prior to accession.  The European Commission has been clear that this type of formal backsliding engages EU law, specifically Article 7 TEU, and requires redress as a matter of Union law.

In Malta, in contrast, the laws which the applicants in Pace Axiaq contend are contrary to EU law have been in place for as long as Malta has been an independent state.  Of course, nowhere in the treaties is the enforcement of fundamental rights and rule of law obligations contingent on regression, but the absence of formal regression means that a clear demarcation between compliance and its absence is lacking.  Indeed, the Maltese government, cognisant of the Commission’s formulaic systemic backsliding criteria, has been eager to emphasise the Commission’s role in the enforcement of rule of law obligations, arguing that there is no private route to enforcement. 

The potential innovation in Pace Axiaq, and the reason why a preliminary ruling is in fact necessary, is that the petitioners rely instead on the direct effect of certain human rights obligations: Article 19(1) TEU, which requires national courts to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”, and Article 47 of the Charter of Fundamental Rights, which guarantees the right to an effective remedy and the right to a fair trial.  The matter is then brought within the scope of the Wachauf formula by way of the duty of sincere cooperation in Article 4(3) TEU; it is argued that the entire substance of the effectiveness of EU law may be at stake, and that all future judgments could be called into question should judicial independence be further compromised.

Paradoxically, Pace Axiaq could provide the Maltese courts with an opportunity to make their greatest contribution to the rule of law at a time when their own independence is most under threat.  Much like the establishment of the internal market required the development of direct effect and citizen-led enforcement of the law, supranational judicial oversight would go a long way towards fulfilling EU law’s promise of a system founded on the rule of law and fundamental rights.

*Reblogged from Verfassungsblog

Barnard & Peers: chapter 9

Photo credit: The Judiciary of Malta

The revised EU visa code: controlling EU borders from a distance

Professor Steve Peers, University of Essex

Today, the European Parliament is due to approve a revision of the law on the EU visa code, which sets out the basic rules on how to get a short-term visa to visit Schengen countries. (Update: the EP has voted in favour of the law.) Since this law was previously agreed with the EU Council, it is likely to be finally adopted by the Council in the near future. [Update: the law was adopted soon after, and published in the EU Official Journal in July 2019.] This law simplifies the visa application process a little, in return for increased application fees. But more significantly, it integrates EU visa policy even more closely with the EU’s external migration control policy, providing for incentives and sanctions for non-EU countries which respectively cooperate or fail to cooperate on readmission. (Parts of this blog post build on my previous post on the visa code proposal, before the recent agreement on the final text).  

Background

The rules for issuing short-term visas are set out in the Visa Code, adopted in 2009. The CJEU has clarified some key points of the Code, ruling that: in effect it creates a right to a visa if the conditions are satisfied, although Member States have flexibility over how to apply those conditions (Koushkaki, discussed here); there must be a possibility of judicial review as part of the appeal process (El-Hassani); and “safe passage” visas for refugees in need of protection are not covered by the Code (X and X).

The Code concerns “Schengen visas”, ie visas which allow travel across the entire Schengen area. As such it applies to the EU countries fully applying the Schengen rules (all Member States except the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria) as well as the non-EU Schengen associates: Norway, Iceland, Switzerland and Liechtenstein.

The list of non-EU countries whose citizens do (or do not) need a visa to visit the Schengen area is set out in a separate visa list Regulation, which was recently amended to waive visas for UK citizens after Brexit, as I discussed here. (Note that proposals for visa waivers for Turkey and Kosovo are on hold). In practice, visa requirements are waived for most of the Americas, most neighbouring European countries, higher-income countries in Asia/Pacific and a couple of Middle Eastern States (Israel and the United Arab Emirates). Conversely, visas are required for visitors from lower-income Asian and Pacific States, the rest of the Middle East, most of Africa and the Caribbean (except for some smaller islands), a few Latin American countries and the bulk of the former USSR (most notably Russia).

There is also separate EU legislation to set up a “travel authorisation” system (see discussion here), which will apply to all non-EU countries with a visa waiver but without a free movement agreement with the EU. As things stand, this law will apply to the UK, unless some special exemption is requested and agreed. A travel authorisation is similar to a visa in that it requires a prior authorisation to travel, but will cost less and be valid for much longer.

The visa code is also separate from (but closely linked to) the EU law setting up a Visa Information System, a database of information on applicants for Schengen visas. Although the Commission also suggested a revision of this law in 2018, and the EP and the Council adopted their positions on this text, the two institutions did not agree between themselves before the end of the EP’s five-year session. So they will negotiate on this in the next EP session. (The proposal would, among other things, provide for fingerprinting 6-year-old visa applicants, and extend that system to apply to long-stay visas and residence permits). 

2014 proposals

The law approved by the EP today is the second attempt to revise the visa code. The first proposal  dates to 2014, and focussed on economic issues, in particular aiming to facilitate tourism. A parallel proposal for a “touring visa” would have provided for an extended stay for those visiting multiple Member States for a longer period, as part of an orchestra or circus, for instance. (I discussed the details of both proposals here). The 2014 proposal also included provisions on facilitating the travel of EU citizens’ non-EU family members (discussed here), and, as noted already, it was an opportunity to argue for explicit “safe passage” visas to be added to the rules (as discussed here). However, it ultimately failed, because the EU Parliament and Council could not agree on whether it should include those “safe passage” visas. In light of the perceived “refugee crisis” of 2015-16 in the meantime, the 2018 proposal focussed instead time on security concerns, rather than economic growth.

2018 proposal

The Commission withdrew both 2014 proposals in light of the negotiation deadlock, and tabled a revised visa code proposal in March 2018. (It did not try to revive the “touring visa” proposal). This was met with much interest in the Council, which adopted a negotiation position on the proposal already by June 2018. I discussed the Council’s position further in a previous blog post. The European Parliament adopted its position in December 2018.

The Commission’s 2018 communication on visa policy is a good overview of the purposes of the proposal. In addition to the main focus on security – which takes the form of penalties for non-EU countries that do not cooperate with the EU on readmission policy – it contains a limited number of simplifications for legitimate travellers. The Commission dropped the proposals to simplify travel for EU citizens’ family members, and made more suggestions to simplify the rules on multiple entry visas as compared to 2018.

The agreed amendments

One key feature of the new law is the power to punish countries that do not cooperate with the EU on readmission (by raising visa fees, requiring more documents, slowing down processing times, and limiting the issue of multiple-entry visas), following a diplomatic process in which the EU will threaten these sanctions if no cooperation is forthcoming. (It’s already EU policy to link treaties simplifying the issue of visas to readmission treaties, but this policy will now become unilateral). At the behest of the EP, it will also be possible to offer carrots as well as sticks: lowering visa fees, speeding up processing times, and issuing multiple-entry visas with longer validity, where the country concerned is ‘cooperating sufficiently’ on readmission.

On other issues, it will be possible for travellers to apply for a visa six months in advance, rather than three, although they should also apply (except in cases of urgency) at least 15 days before they plan to travel. Professional, sporting, cultural or educational bodies can now apply for visas on behalf of their staff. The requirement to appear in person (usually subject to a waiver in practice) will only apply when registering fingerprints, although they might also be submitted electronically.

Visa application fees will rise from €60 to €80, and from €35 to €40 for 6-12 year olds, and the Commission will now have the power to revise the fee every three years. The mandatory fee waiver for researchers is extended to apply not only where they are carrying out research, but also when they are attending seminars or conferences. (Other mandatory fee waivers, for children under six, pupils and students, and NGO representatives at youth conferences or events, are retained.) The optional fee waivers for diplomats and youth attendees at conferences or events are retained, and the optional fee waiver for children is extended, to apply to children up to 18 years old (not just 12 as in the current code). The new “punishment” clause will raise the visa application fee to €120 or €160 for travellers from countries that are judged not to cooperate on migration. Service providers will be able to charge higher fees than they do now in some cases.

The current rule on deciding on a visa application within 15 days will be kept (the Commission had proposed to reduce it to 10 days), although the length of the extended period in certain cases will be cut (45 days, instead of 60).

Streamlining the current rules on multiple entry visas, such visas will be available lasting for one, two or five years will be available, based on prior lawful use of a visa. The final text dropped the Commission’s proposal to refer to judicial review in the event of an appeal against refusal of a visa, but this cannot change the legal obligation to provide for such a review, since the CJEU ruling on this issue (El-Hassani, noted above) based this obligation on EU primary law: the EU Charter of Fundamental Rights. The Commission proposal to issue visas at the border in order to encourage tourism was also dropped, as was the current law’s possibilities of having “co-location” and “common application centres”, as they have been overtaken by events – the trend of outsourcing the visa application process to private entities. As a partial substitute, the revisions will simplify the rules which apply when one Member State represents another one for visa applications.

Comments

The European Parliament has ultimately gone along with the bulk of the Commission proposal and Council amendments, giving up on the simplification of travel rules which the Commission initially proposed in 2014, including for EU citizens’ family members, as well as the “safe passage” issue (on which the EP has passed a non-binding resolution). There are some modest facilitations of travel, in particular as regards multiple-entry visas and some additional fee waivers, in particular as an option for older children.

The readmission punishment and incentive clauses form part of the EU arsenal of stricter migration control policies, such as arrangements with Turkey and Libya and with greater internal and external border checks, including the expanded powers for Frontex also approved by the EP today. Whether these changes will be effective remains to be seen; there will presumably still be juicier carrots offered via the EU-Africa funds offered to States which cooperate with the EU’s increasing attempts at “remote control” of migration. Whether the new policy will work in practice, or – even if it does work – satisfy those voters who remain angry despite reduced migration flows, equally remains to be seen. 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: eturbonews