Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
“Social policy – Dialogue between management and labour at European Union level – Agreement entitled ‘General framework for informing and consulting officials and other servants of central government administrations’ – Joint request by the signatory parties for application of that agreement at European Union level – Refusal by the Commission to submit a proposal for a decision to the Council – Action for annulment – Act against which proceedings may be brought – Admissibility – Commission’s discretion – Autonomy of the social partners – Principle of subsidiarity – Proportionality”.
1 – Facts
On April 10th 2015, the European Commission invited the social partners, on the basis of Article 154(2) TFEU, to comment on the possible direction of EU action to consolidate the Directives on information and consultation of workers. That consultation focused in particular on the possible extension of the scope of those Directives to officials and other servants of public administrations in the Member States.
On June 2nd 2015, the social partners of the Social Dialogue Committee for central government administrations, namely the Trade Union Delegation of the National and European Administration (DSANE) and the European Public Administration Employers (EPAE), informed the Commission, on the basis of Article 154(4) TFEU, of their wish to negotiate and conclude an agreement on the basis of Article 155(1) TFEU.
On December 21st 2015, the DSANE and the EPAE signed an agreement entitled “General framework for information and consultation of officials and other servants of central government administrations” (hereinafter, “the Agreement”). The DSANE and the EPAE asked the Commission to submit a proposal for the implementation of the agreement at Union level by means of a decision of the Council of the European Union to be adopted in accordance with Article 155(2) TFEU.
The Commission informed the DSANE and the EPAE that it had decided to refuse to submit to the Council a proposal for a decision implementing the agreement at Union level (‘the contested decision’).
In the contested decision, the Commission found, first, that the administrations of the central governments were under the authority of the governments of the Member States, that they exercised prerogatives of public authority and that their structure, organisation and functioning were entirely within the competence of the Member States. Second, the Commission observed that provisions already existed in many Member States ensuring a certain degree of information and consultation of officials and other servants of those administrations. Third, the Commission noted that the importance of these administrations depended on the degree of centralization or decentralization of the Member States, so that if the agreement were implemented through a decision of the Council, the level of protection of officials and agents of public administrations would vary considerably among Member States.
The European Federation of Public Service Unions (EPSU), an association of European trade union organisations representing civil servants, and Jan Goudriaan, Secretary General of EPSU, appealed against the Commission’s decision.
The Commission asked the General Court to dismiss the action.
The General Court dismissed the action.
Firstly, the Court held that the decision by which the Commission refused to submit a proposal for the application at EU level of an agreement concluded by the social partners constituted an act which could be challenged before the General Court. Indeed, that decision does not constitute a preparatory act and, moreover, the possible existence of a wide discretionary power does not exclude the admissibility of the action.
Secondly, the Court held that, when the social partners negotiated and concluded the agreement on the basis of Article 155(1) TFEU and the signatory parties submitted a joint request for application of that agreement at EU level by a Council decision adopted on the basis of Article 155(2) TFEU, the Commission was not obliged to grant that request and it was for the Commission to assess whether it had to submit a proposal to the Council. By refusing to submit to the Council a proposal for a decision implementing the Agreement, the Commission did not commit an error of law as to the scope of its powers.
The Court added that the Commission must not only verify the strict legality of the clauses of that agreement, but also take into account the general interest of the Union and, consequently, assess the appropriateness, including political, economic and social considerations, of the possible application of the agreement at EU level, in accordance with Article 17(1) TEU.
The Court stressed that the Commission had a wide margin of discretion in this respect[i] and that, in case of refusal, the legality of the decision taken by the Commission could be subject to a limited judicial control by the Court[ii].
[i] Judgment of 23 April 2018, One of Us v Commission, T 561/14, pending appeal, EU:T:2018:210, paragraph 169
[ii] Idem, paragraph 170
EU trade mark – Invalidity proceedings – Three-dimensional EU trade mark – Shape of a cube with surfaces having a grid structure – Absolute ground for refusal – Article 7(1)(e)(ii) of Regulation No 40/94 (now Article 7(1)(e)(ii) of Regulation 2017/1001) – Sign consisting exclusively of the shape of goods necessary to obtain a technical result – Article 76(1) of Regulation (EC) No 207/2009 (now Article 95(1) of Regulation 2017/1001).
In 1996, the English company Seven Towns, which managed the intellectual property rights related to the “Rubik’s cube”, filed an application for registration of an three-dimensional EU trade mark for “three-dimensional puzzles” with the European Union Intellectual Property Office (EUIPO), as reproduced below:
The sign was granted in 1999 and was renewed in 2006 and 2016. Also in 2016, the German company Simba Toys filed to EUIPO an application for a declaration of invalidity of the mark on Article 7(1)(e)(ii) of Regulation No 40/94 (now Article 7(1)(e)(ii) of Regulation 2017/1001), according to which “shall not be registered (…) signs which consist exclusively of (…) the shape, or another characteristic, of goods which is necessary to obtain a technical result”.
After EUIPO dismissed its application, Simba Toys brought an annulment action before the General Court (hereinafter “GC”). By its judgment of 25 November 2014 (T-450/09), the TG dismissed the action brought by Simba Toys on the ground that the technical solution which characterizes “Rubik’s cube” does not result from the characteristics of the shape presented, but at most from an invisible mechanism internal to the cube. Simba Toys brought an appeal before the Court of Justice (hereinafter “CJ”) against the judgment of the GC. By its judgment of 10 November 2016, (C-30/15 P), the CJ set aside the first judgment and, consequently, the decision of EUIPO. According to the CJ, the GC interpreted the criteria for assessing Article 7(1)(e)(ii) of Regulation No 40/94 too narrowly, by removing from the analysis of the functionality of the essential characteristics of the sign concerned the non-visible elements of the product.
In this context, it fell to EUIPO to render a new decision taking into consideration the findings of the CJ. By decision of 19 June 2017, EUIPO applied the article invoked by Simba Toys. More specifically, EUIPO considered that the sign revealed three essential characteristics to obtain the product’s technical result: the overall cube shape, the black lines forming small squares on each face of the cube and the six colors of the cube’s faces.
Disagreeing with this new decision, the English company Rubik’s Brand Ltd (holder of the contested sign since 2014) challenged EUIPO’s decision before the General Court.
First, the GC concluded that EUIPO made an error of assessment in identifying, as an essential characteristic of the contested sign, the different colors of the cube’s six faces. To that end, the GC recalled that Seven Towns did not claim any color or provided any description of the mark at the time of its registration. The GC also considered that a simple visual analysis of the graphical representation of the contested sign does not allow to discern with sufficient precision the existence of differences in the colours on the six faces of the cube.
However, the GC held that the abovementioned error of assessment does not affect the legality of the contested decision. As regards the definition of the intended technical result of the product, the GC stated that the sign at issue represents the aspect of the actual goods for which registration was sought, in the present case the three-dimensional puzzle known as “Rubik’s Cube”. The GC also considered that it is common ground that that product is a game whose purpose is to completing a cube-shaped three-dimensional colour puzzle by generating six differently coloured faces. As for the functionality of the essential characteristics of the sign, the TG considerer that both the overall cube shape and the black lines forming small squares on each face of the cube are necessary to obtain the above mentioned result. If the black lines, which represent a physical separation between the small cubes, are necessary for their rotation, the larger cube is inseparable from this grid structure. Thus, the purpose of the product is achieved by rotating, vertically and horizontally, rows of smaller cubes of different colours which are part of a larger cube until the nine squares of each face of that cube show the same colour.
On those grounds, the TG ruled that the sign at issue should not have been registered as a EU trade mark, upholding the contested decision and dismissing its appeal.