Two weeks ago UK IPO informed about new preliminary reference from Czech republic – MF7 C-49/13, which deals with some questions of bad faith in trade mark law. I was very curious about the case. Not because of a substance as IPKat, but because it was filed directly by the Czech Industrial Property Office and not a Czech court. So I filed a request for information with Czech IPO. Today, after almost two weeks I finally got an answer, which reads something like ‘the information was prepared in course of proceedings of the IPO and it will be published after CJEU decides’. Not very cooperative given that they (IMHO) have to disclose such information under Czech Information Freedom Act.

Anyway, Czech IPO at least confirmed that MF7 C-49/13 was filed directly by the IPO in course of pending nullification proceedings. This is very unusual situation I would say. I don’t know how other IPO’s are dealing with this, but I suspect that it is always a court that files such proceedings. And I am also not sure whether this is a good precedent for the CJEU to take. This could potentially open floodgates. Important question I thus expect CJEU to answer is whether national IPO can even file such preliminary reference.

In the last months, we have seen some other administrative authorities filing such preliminary references and looking at CJEU case-law it is definitely not a new trend. One can mention Austrian Office for Protection of Personal Data (Datenschutzkommission) that filed preliminary reference (H C-46/13) dealing with data retention.

So what is the legal position of the CJEU? It is well known that not every body that deals with Union law can also file preliminary reference. CJEU limits number of these bodies by interpreting a notion of “court or tribunal of Member State” set in  Art. 267 TFEU. It is also a general rule that administrative authorities don’t have a right to refer their own questions. According to settled CJEU case-law, in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU, the CJEU takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.

In Syfait C-53/03 case, dealing with the reference from the Greek Competition Authority, CJEU said:

 30      It should be noted, first of all, in this regard that the Epitropi Antagonismou is subject to the supervision of the Minister for Development. Such supervision implies that that minister is empowered, within certain limits, to review the lawfulness of the decisions adopted by the Epitropi Antagonismou.

31      Next, whilst it is true that the members of the Epitropi Antagonismou enjoy personal and operational independence and are bound in the exercise of their duties only by the law and their conscience within the meaning of Law No 703/1977, it nevertheless remains that there are no particular safeguards in respect of their dismissal or the termination of their appointment. That system does not appear to constitute an effective safeguard against undue intervention or pressure from the executive on the members of the Epitropi Antagonismou (see, to that effect, Case C-103/97 Köllensperger and Atzwanger [1999] ECR I-551, paragraph 21).

32      It should also be noted that under Article 8C(1)(b) and (d) of Law No 703/1977, the President of the Epitropi Antagonismou is responsible for the coordination and general policy of the secretariat, is the immediate superior of the personnel of that secretariat and exercises disciplinary power over them.

33      It should be noted in this regard that the Tribunales Económico-Administrativos (Economic and Administrative Courts) (Spain) were found by the Court, in paragraphs 39 and 40 of the Gabalfrisa judgment, to be third parties in relation to the departments of the tax authority responsible for the management, clearance and recovery of VAT, particularly given the separation of functions between them. However, in so far as there is an operational link between the Epitropi Antagonismou, a decision-making body, and its secretariat, a fact-finding body on the basis of whose proposal it adopts decisions, the Epitropi Antagonismou is not a clearly distinct third party in relation to the State body which, by virtue of its role, may be akin to a party in the course of competition proceedings.

Some time before above decision, CJEU said moreover following in Schmid C-516/99 case:

36.     It must be remembered that the expression ‘court or tribunal’ within the meaning of Article 234 EC can mean only an authority acting as a third party in relation to the authority which adopted the contested decision (Case C-24/92 Corbiau [1993] ECR I-1277, paragraph 15).

37.     The authority before which an appeal can be brought against a decision adopted by a department of an administrative authority cannot be regarded as a third party in relation to that department and, accordingly, as a court or tribunal within the meaning of Article 234 EC, where it has an organisational link with that administrative authority (see, to that effect, Corbiau, paragraph 16). This will be so unless the national legal framework is such as to ensure a separation of functions between, on the one hand, the department of the administrative authority whose decision is being challenged and, on the other, the authority which rules on complaints lodged against decisions of that department without receiving any directions from the administrative authority to which that department is responsible (see, to that effect, Gabalfrisa and Others, paragraph 39).

38.     Where there is an organisational and functional link between an appeal chamber and the regional finance authority which adopts the decisions contested before it, it is impossible to regard the chamber as a third party in relation to that administrative authority.

Thanks to non-cooperativeness of Czech IPO, I can’t tell if the case is in first or second instance of administrative proceedings before it, so I don’t have a full picture. Also this is certainly not strictly speaking my ‘field’. However, given Syfait and Schmid cases, I don’t think that Czech IPO is likely to get any answer from CJEU other than that it has no jurisdiction.