# C_2008092EN.01001401.xml

| 12.4.2008 | EN | Official Journal of the European Union | C 92/14 |
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12.4.2008

EN

Official Journal of the European Union

C 92/14

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Reference for a preliminary ruling from the Juzgado de lo Mercantil Número Uno, Alicante, (Spain), lodged on 28 January 2008 — Fundación Española para la Innovación de la Artesanía (FEIA) v Cul de Sac Espacio Creativo, S.L. and Acierta Product & Position, S.A.

(Case C-32/08)

(2008/C 92/25)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil Número Uno, Alicante

Parties to the main proceedings

Applicant: Fundación Española para la Innovación de la Artesanía (FEIA)

Applicant:

Defendant: Cul de Sac Espacio Creativo, S.L. and Acierta Product & Position, S.A.

Defendant:

Questions referred

| 1. | Must Article 14(3) of [Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (1)] be interpreted as referring only to Community designs developed in the context of an employment relationship where the designer is bound by a contract governed by employment law whose provisions are such that the designer works under the direction and in the employ of another? or |
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1.

Must Article 14(3) of [Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (1)] be interpreted as referring only to Community designs developed in the context of an employment relationship where the designer is bound by a contract governed by employment law whose provisions are such that the designer works under the direction and in the employ of another? or

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| 2. | Must the terms ‘employee’ and ‘employer’ in Article 14(3) of Regulation No 6/2002 be interpreted broadly so as to include situations other than employment relationships, such as a relationship where, in accordance with a civil/commercial contract (and therefore one which does not provide that an individual habitually works under the direction and in the employ of another), an individual (designer) undertakes to execute a design for another individual for a settled price and, as a result, it is understood that the design belongs to the person who commissioned it, unless the contract stipulates otherwise? |
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2.

Must the terms ‘employee’ and ‘employer’ in Article 14(3) of Regulation No 6/2002 be interpreted broadly so as to include situations other than employment relationships, such as a relationship where, in accordance with a civil/commercial contract (and therefore one which does not provide that an individual habitually works under the direction and in the employ of another), an individual (designer) undertakes to execute a design for another individual for a settled price and, as a result, it is understood that the design belongs to the person who commissioned it, unless the contract stipulates otherwise?

| 3. | In the event that the answer to the second question is in the negative, on the ground that the production of designs within an employment relationship and the production of designs within a non-employment relationship constitute different factual situations,






  (a) | is it necessary to apply the general rule in Article 14(1) of Regulation No 6/2002 and, consequently, must the designs be construed as belonging to the designer, unless the parties stipulate otherwise in the contract? or |
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3.

In the event that the answer to the second question is in the negative, on the ground that the production of designs within an employment relationship and the production of designs within a non-employment relationship constitute different factual situations,

(a)

is it necessary to apply the general rule in Article 14(1) of Regulation No 6/2002 and, consequently, must the designs be construed as belonging to the designer, unless the parties stipulate otherwise in the contract? or

| (b) | must the Community design court rely on national law governing designs in accordance with Article 88(2) of Regulation No 6/2002? |
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(b)

must the Community design court rely on national law governing designs in accordance with Article 88(2) of Regulation No 6/2002?

| 4. | In the event that national law is to be relied on, is it possible to apply national law where it places on an equal footing (as Spanish law does) designs produced in the context of an employment relationship (the designs belong to the employer, unless it has been agreed otherwise) and designs produced as a result of a commission (the designs belong to the party who commissioned them, unless it has been agreed otherwise)? |
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4.

In the event that national law is to be relied on, is it possible to apply national law where it places on an equal footing (as Spanish law does) designs produced in the context of an employment relationship (the designs belong to the employer, unless it has been agreed otherwise) and designs produced as a result of a commission (the designs belong to the party who commissioned them, unless it has been agreed otherwise)?

| 5. | In the event that the answer to the fourth question is in the affirmative, would such a solution (the designs belong to the party who commissioned them, unless it has been agreed otherwise) conflict with the negative answer to the second question? |
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5.

In the event that the answer to the fourth question is in the affirmative, would such a solution (the designs belong to the party who commissioned them, unless it has been agreed otherwise) conflict with the negative answer to the second question?

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(1)  OJ 2002 L 3, p. 1.

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