OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 26 March 2009 1(1)
Case C‑32/08
Fundación Española para la Innovación de la Artesanía (FEIA)
v
Cul de Sac Espacio Creativo SL
and
Acierta Product & Position SA
(Reference for a preliminary ruling from the Juzgado de lo Mercantil n. 1 de Alicante (Spain))
(Community designs – Ownership of the right to an unregistered Community design – Commissioned designs)
1. By the present reference for a preliminary ruling, the Juzgado de lo Mercantil n. 1 de Alicante (Commercial Court No 1 of Alicante) (Spain) refers several questions to the Court of Justice concerning the interpretation of Articles 14 and 88 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (‘the regulation’). (2)
2. Those questions are raised in the course of proceedings for the alleged infringement of unregistered Community designs, commissioned and produced in the context of a project promoting the incorporation of industrial design into the craftsmanship sector. This is the first time that the Court has been called upon to interpret the provisions of the regulation in the context of preliminary ruling proceedings. (3)
I – Legislative context
A – Relevant provisions of Community law
3. The Community’s interest in issues of industrial design protection dates from 1959, when the Commission proposed that the governments of the then six Member States should establish working groups for developing the protection of industrial property rights at the Community level in order to overcome the problems for the proper functioning of the Common market posed by the limited territorial protection offered at the national level. Accordingly, three different working groups were established in the fields of patents, trade marks and designs. The working group on designs, chaired by an Italian, Roscioni, delivered its report in 1962, recommending that uniform rules be adopted at the Community level, but underlining the difficulty of undertaking a process of legislative harmonisation due to the substantial differences that characterised the laws of the Member States in the area.
4. After a long period of inertia, the debate was revived by the Commission with its Green Paper on the Legal Protection of the Industrial Design (‘the Green Paper’) published in June 1991, which the Commission intended would serve as a basis for consultation of the interested circles. In that document, the Commission discussed the various aspects of the legal protection of the industrial design and the solutions adopted by the laws of the Member States, setting out the broad outline of what it believed the Community’s approach to the matter should be. On the basis of the considerations developed in the Green Paper, the Commission proposed, first, that a Community design, valid throughout the Community and subject to uniform rules, should be created, and, second, that the most important features of the national laws in the area should be harmonised. In line with such a proposal, draft proposals for a regulation on the Community design and for a directive to approximate the national laws of the Member States on the legal protection of designs were annexed to the Green Paper.
5. In the light of those proposals, in 1993 the Commission submitted to the Council and the Parliament a proposal for a regulation on the Community design (4) and a proposal for a directive on the legal protection of designs. (5) The directive was adopted on 13 October 1998, (6) whereas the regulation’s legislative course was longer and more tortuous, requiring the submission of two further proposals in 1999 and 2000.
6. As is clear from the recitals in the preamble to the regulation, the purpose of establishing a Community design subject to a uniform set of rules throughout the Community is to eliminate the obstacle to the free movement of goods resulting from the territorial limitation of the protection of designs at national level, and to prevent identical designs being protected differently and for the benefit of different owners in the various national legal systems as a result of the considerable differences still encountered between the laws of the Member States. (7)
7. In order that the protection accorded to the Community design serves the needs of all sectors of industry in the Community, the regulation sets out two forms of protection: the first, less extensive and more short-term, being the unregistered design, and the second, more long-term, being the registered design which confers exclusive rights on the protected party. (8)
8. Title II of the regulation is subdivided into five sections. The third section, entitled ‘Right to the Community design’, contains Article 14 which, under the same heading, provides that:
‘1. The right to the Community design shall vest in the designer or his successor in title.
2. If two or more persons have jointly developed a design, the right to the Community design shall vest in them jointly.
3. However, where a design is developed by an employee in the execution of his duties or following the instructions given by his employer, the right to the Community design shall vest in the employer, unless otherwise agreed or specified under national law.’
9. Title IX of the regulation lays down rules in the area of ‘Jurisdiction and procedure in legal actions relating to Community designs’. Article 81, contained in the second section of Title IX, provides that the Community design courts designated by the Member States in accordance with Article 80 are to have exclusive jurisdiction to hear disputes concerning the infringement and validity of Community designs. As to the law applicable by such courts, Article 88(1) and (2) provides that:
‘1. The Community design courts shall apply the provisions of this Regulation.
2. On all matters not covered by this Regulation, a Community design court shall apply its national law, including its private international law.’ (9)
B – Relevant provisions of national law
10. The Spanish legal system provides for protection only in respect of registered designs. Article 14(1) and (4) of Law No 20 of 7 July 2003 on the Legal Protection of Industrial Designs, in Title III, ‘Ownership of the design’, under the heading ‘Right of Registration’, provides as follows:
‘1. The right to register the design shall vest in the designer or his successor in title. …
4. In proceedings before the Spanish Patents and Trade Marks Office, it shall be presumed that an applicant has the right to register the design.’
11. Article 15 is worded as follows:
‘Where a design has been developed by an employee in the execution of his duties or following the instructions given by his employer, or as a result of a commission in the context of a contract for services, the right to register the design shall vest in the employer or the party who commissioned the design under the contract, unless otherwise specified in the contract.’
II – The proceedings before the national court and the questions referred for a preliminary ruling
12. The Fundación española para la innovación de la Artesanía (Spanish Foundation for the Innovation of Craftsmanship) (‘the FEIA’), the applicant in the main proceedings, sponsored the project known as the ‘D’Artes … Diseño y Artesanía de incorporación del Diseño al Sector Artesiano’ (‘D’Artes … Design and Craftsmanship project for the introduction of design into the craftsmanship sector’), the purpose of which was to create and place on the market a range of objects made by a number of skilled workshops on the basis of designs produced by industrial design professionals.
13. In the context of that project, the company AC&G S.A. (‘AC&G’) was tasked by the FEIA with selecting the designers and concluding agreements with them for developing a design and providing technical assistance to the craftsman at the production stage. On that basis, AC&G concluded a contract with the company Cul de Sac Espacio Creativo S.L. (‘Cul de Sac’), under which Cul de Sac was to design a series of cuckoo clocks for the craftswoman Verónica Palomares. The clocks were unveiled as part of the first D’Artes series as the ‘Santamaría’ collection.
14. In 2006 Cul de Sac and the company Acierta Product & Position S.A. (‘Acierta’) placed on the market a range of cuckoo clocks, known as the ‘Timeless’ collection. Believing that this infringed its rights to the designs of the clocks in the ‘Santamaría’ collection, the FEIA brought an action against both companies before the Juzgado de lo Mercantil n. 1 de Alicante. Before that court, the FEIA claimed ownership of the rights to the designs in question in a number of capacities, relying on both the provisions of the regulation and the Spanish legislation. (10) The defendant companies maintained that the FEIA lacked standing to bring the action, on the ground that it did not own the rights to the designs at issue.
15. Considering that a number of provisions of the regulation needed to be interpreted in order to resolve the dispute, the national court stayed the proceedings, and referred the following questions to the Court of Justice for a preliminary ruling in accordance with Article 234 EC:
‘(1) Must Article 14(3) of [the regulation] 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
(2) Must the terms “employee” and “employer” in Article 14(3) of [the regulation] 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 [the regulation] 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 [the regulation]?
(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?’
III – Proceedings before the Court of Justice
16. The FEIA, Cul de Sac, Acierta, the United Kingdom and the Commission submitted written observations in the present preliminary ruling proceedings in accordance with the second paragraph of Article 23 of the Statute of the Court of Justice. A hearing was held on 29 January 2009.
IV – Analysis
A – First and second questions referred for a preliminary ruling
17. The first two questions referred by the national court for a preliminary ruling, which should be examined together, concern the interpretation of Article 14(3) of the regulation. By those questions, the national court in essence asks the Court of Justice whether that provision applies only in the case of designs developed by an employee in the context of a contract of employment or whether, on the other hand, it applies also to ‘commissioned designs’, that is to say designs developed by a self-employed person in the context of a contract for services.
18. Both the FEIA and the United Kingdom are in favour of also applying Article 14(3) of the regulation to commissioned designs, submitting that the provision should be interpreted not only on the basis of its wording, but also in the light of the overall scheme and objectives of the system of which it forms part. The proposed interpretation is justified, in particular, in the light of the need to coordinate the provisions of the regulation and of Directive 98/71, which only harmonises in part the national laws on the protection of the industrial design. In the absence of such coordination, overlapping Community and national protection, made possible by the provisions of the regulation, could lead to protective rights being recognised for different persons in respect of the same design. The Commission, Cul de Sac and Acierta maintain, on the other hand, that the first two questions referred for a preliminary ruling should be interpreted as meaning that the rule laid down in Article 14(3) of the regulation is to apply exclusively to designs created in the context of an employment relationship. The Commission and Cul de Sac maintain, in particular, that the provisions of Community law which, like the provision at issue, do not contain an express reference to national law in order to determine their scope and the meaning of their terms must be given an autonomous and uniform interpretation throughout the Community. In addition, Acierta and the Commission maintain that Article 14(3) contains an exception to the general rule set out in Article 14(1), and as such may not be interpreted widely or applied by way of analogy to situations not expressly provided for. Lastly, the Commission contends that the proposed interpretation is confirmed by the drafting history and the procedure by which the regulation was adopted, and is consistent with Community and international rules on other industrial property rights.
19. Article 14(3) provides that where ‘a design is developed by an employee in the execution of his duties or following the instructions given by his employer, the right to the Community design shall vest in the employer, unless otherwise agreed or specified under national law.’
20. As maintained by the defendants in the main proceedings and by the Commission, the literal wording of that provision leads to the conclusion that the situation covered by the rule contained in that provision relates only to designs developed in the context of an employment relationship. This is borne out in particular by the use of the terms ‘employee’ and ‘employer’, which shows the clear intention of the Community legislature that there should be an employment relationship as defined by employment law in order for the provision to apply.
21. A different interpretation, as put forward by the FEIA and the United Kingdom, also bringing contracts for services within the scope of the provision, would inevitably strain the construction of the provision in question, expanding the sense of the terms used beyond their ordinary meaning, and would, in my estimation, conflict with the actual wording of the regulation.
22. Nor does it seem to me possible, contrary to the FEIA’s submission, to reach such an interpretation on the mere assertion that the text of Article 14(3) makes a distinction between designs developed in the execution of the employee’s duties, which would form part of the performance of the contract of employment, and those developed following instructions from the employer, which, on the other hand, would be entrusted to the employee on the basis of a different contractual relationship. Both are situations that relate to the performance of the employment relationship: the first relates to the employee’s duties in performing the individual contract of employment, and the second to the tasks specifically entrusted to him by the employer in the context of such a relationship. The purpose of the distinction is to limit the scope of the rights acquired by the employer only to those creations of the employee which are in fact attributable to the performance of the contract of employment. It is not therefore permissible, in my estimation, to interpret the reference to designs developed by the employee in the execution of the ‘instructions given’ by the employer as meaning that the Community legislature intended to extend the system laid down in Article 14(3) of the regulation to designs created in the context of a contract for services.
23. Once it has been clarified that the system set out in Article 14(3) relates only to designs developed in the context of an employment relationship, it must then be established whether it is possible to infer from that provision a rule that may be applied by way of analogy to the different case of ‘commissioned’ designs. In that connection, it is necessary to refer, first, to the rationale of the provision in question, and, second, to the drafting history of the regulation.
24. First, the rule that the employer acquires the rights to exploit the product of the employee’s labour, without the need for an express transfer, is commonplace in both national and international legislation in respect of the various industrial property sectors. In Community law, that rule is expressed in Article 14(3) of the regulation, and also in Article 3(2) of Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products, (11) Article 2(3) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, (12) Article 11(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, (13) and in the draft regulation on patents. The rule in essence serves the requirement to balance the opposing interests at stake: on the one hand, that of the employer in acquiring the product of an activity which he has usually funded, and, on the other hand, that of the employee in being adequately remunerated for the work done. The direct acquisition by the employer of the economic rights to the works created by the employee enables the employee to be adequately remunerated irrespective of the result of the work’s commercial exploitation – for which moreover the employee may not have the necessary financial and organisational resources – and assures the employer that the economic rights to the works created by the employee are not assigned by that employee to another party.
25. The choice in Article 14(3) of the regulation to confer on the employer the right to disclose and to register the design developed by its own employee, in order to be able to acquire ownership of the protective rights obtained from completing such acts, is based on a notion of the employment relationship as an ‘all-encompassing’ one that justifies the transfer to the employer, by virtue of the contract of employment, of all the rights to the commercial exploitation of the work produced by the employee.
26. The foregoing considerations lead me to believe that the system laid down in the provision at issue, conceived in relation to a specific contractual situation, does not lend itself to application by analogy to other contractual arrangements.
27. Such a conclusion appears to be confirmed by the drafting history of the regulation.
28. Second, the draft proposal for a regulation annexed to the Green Paper did not contain any provision similar to Article 14(3). Article 11 of the draft proposal reproduced the wording of the current Article 14(1), while Article 12, entitled ‘Design of an employee or in pursuance of a commission’, merely sets out, in line with the proposal submitted by the Max Planck Institute, (14) the conflict rules for determining the national law governing the ownership of the right to a Community design for a design developed by an employee (Article 12(1)) and a design in pursuance of a commission (Article 12(3)). (15)
29. In its commentary to Article 12(1) of the draft proposal, the Commission underlined in the Green Paper the difficulty, already experienced by the negotiators of the 1973 European Patent Convention and of the 1989 Agreement relating to the Community Patent, of reaching an agreement on a uniform substantive rule on the question of the entitlement to the work carried out by an employee in the course of the employment relationship. While advocating the adoption of such a rule in the long term, the Commission believed that it was satisfactory at that stage of development, in order to avoid delays in the procedure for adopting the regulation, to include in the proposal a rule of conflict modelled on Article 6 of the 1980 Rome Convention on the law applicable to contractual obligations. With regard to commissioned designs, on the other hand, in the commentary to Article 12(3) of the draft proposal, the Green Paper merely recalled the need to give the parties ‘the widest possible choice to decide on the entitlement to the design and as regards the law applicable to the contract’, (16) and suggested the adoption of a more precise connecting criterion than the ‘narrower connection’ laid down by the Rome Convention. No reference was made to the possibility of devising, even in the medium to long term, uniform substantive rules on the point.
30. Already in the Green Paper the Commission was therefore adopting a clearly different approach to the issues concerning the ownership of the rights to designs developed in the context of an employment contract and a contract for services.
31. That different approach is also reflected in the procedure for the adoption of the regulation. In the 1993 proposal, (17) for designs produced by an employee, the Commission followed the more ambitious objective already set out in the Green Paper and at Article 14(2) inserted a substantive rule (18) to replace the rule of conflict in Article 12(1) of the draft proposal for a regulation in annex to the Green Paper. However, the rule of conflict for commissioned designs contained in Article 12(3) of the draft project was deleted.
32. The wording of the provision contained in Article 14(2) of the 1993 proposal remained substantially unchanged in the subsequent drafts (19) – with the only exception being the addition of the reference to the national law applicable – and also in the final version of the regulation. However, the question of the ownership of the rights to Community designs that have been produced as a result of a commission remained, as has been seen, without a specific body of rules even on the basis of private international law.
33. In that context, it appears difficult to justify the use of analogy in order to extend to commissioned designs the uniform rules laid down by the Community legislature exclusively for designs developed by an employee.
34. On the basis of the foregoing considerations, I therefore propose that the Court should answer the first two questions referred for a preliminary ruling to the effect that the rule contained in Article 14(3) of Regulation No 6/2002 applies only to designs produced by an employee in the course of an employment relationship.
B – Third, fourth and fifth questions referred for a preliminary ruling
35. By the third, fourth and fifth questions, which I shall address together, the national court in essence asks the Court of Justice whether, if the answer to the first two questions is that Article 14(3) of the regulation does not apply to designs developed in the context of a contract for services, the ownership of the right to such designs must be determined on the basis of the provision contained in Article 14(1), or whether there is a gap in the regulation on that point which must be supplemented by the laws of the Member States pursuant to Article 88(2) of the regulation.
36. The FEIA submits that Article 14 should be interpreted as a whole in the light of the regulation’s objectives and taking into account the legislature’s intention to create only minimal regulation in the field. The FEIA refers in particular to Articles 27, 88 and 96 of the regulation, which contain a reference to the national laws and allow them to provide a more comprehensive protection of Community designs than that laid down by the regulation and to recitals 6, 8 and 9 in the preamble thereto, which refer to the requirements concerning compliance with the principles of subsidiarity and proportionality, and set out the objective of aligning the substantive provisions of the regulation with those of Directive 98/71. The FEIA also proposes that the notion of ‘successor in title’ in Article 14(1) of the regulation should be interpreted as referring to the various means of acquiring the right to the design provided for in the laws of the Member States, including that laid down in Article 15 of the Spanish Law in favour of the person commissioning the design. The United Kingdom for its part submits that, if the Court excludes commissioned designs from the scope of Article 14(3), the ownership of the rights to such designs should be determined on the basis of the laws of the Member States in accordance with the principle laid down in Article 88(2) of the regulation.
37. The Commission, Acierta and Cul de Sac maintain that Article 14(1) of the regulation contains a general provision in favour of conferring the right to the design on its creator. The only exception to that rule appears in Article 14(3) and concerns only the case of designs produced by an employee in the context of the employment relationship. There is therefore no gap in the regulation concerning the ownership of the right to the Community design, and accordingly recourse to Article 88(2) is not permitted.
38. As set out in Article 14(1) of the regulation, ‘The right to the Community design shall vest in the designer or his successor in title.’
39. It should be noted as a preliminary point that the right to the Community design referred to throughout Article 14 consists in the right to disclose the Community design or to file an application for its registration. The right is thus the entitlement to complete those acts which give rise to the protective rights laid down in the regulation, necessary in order to exploit the Community design.
40. In relation to the acquisition of such rights, Article 14(1) lays down a general rule in favour of the designer and his successors in title. (20) Both categories of subject are moreover placed on an equal footing.
41. In those circumstances, for the purposes of replying to the national court, it is necessary, in my opinion, to clarify first of all the scope of the notion of ‘successor in title’ pursuant to Article 14(1).
42. The notion of ‘successor in title’ is also found in other provisions of the regulation, (21) even though this varies according to the different language versions, which at times use different expressions. (22) Even though the issue is one that was raised at the hearing, I do not consider that it is necessary to determine the extent to which the notion appearing in Article 14(1) corresponds to that used in the other provisions of the same regulation or to the alternative expressions used, since such an assessment would entail a complex procedure comparing the different language versions of the regulation, the results of which would not be very significant in any event.
43. At the hearing, the Commission contended that the notion of ‘successor in title’ has the same scope in all the provisions of the regulation in which it appears, and refers only to cases of inheritance or of succession or merger between companies, but does not include cases of contractual assignment of the right to a design.
44. I am not convinced by such an interpretation.
45. Even disregarding the fact that in certain language versions of the regulation (for example, the English, German, Italian and Portuguese versions) the same expression used in Article 14(1) also appears in Article 28, and refers to the transferee of the registered Community design, the Commission’s argument appears in any event to be disproved by the drafting history of the regulation.
46. In that respect, it should be noted first of all that the provision appearing in the current version of Article 14(1) was already contained in Article 11 of the draft proposal for a regulation annexed to the Green Paper and also in the first proposal for a regulation published by the Commission in 1993, and has not been amended during the procedure by which the regulation was adopted.
47. In the commentary on Article 11 of the draft proposal, the relevant passages of which are reproduced below, the Commission sets out the following in the Green Paper:
‘The basic principle, common to many national legislations, is that the right originates in the person of the designer. The principle is, however, qualified by the subsidiary principle that the original right may be transferred or assigned in its entirety to another person, the successor in title. The Community design needs probably to apply the same principles … . These principles express the common sense solution one would look for in case where a person, having created a design, has to choose between exploiting the design himself (whether personally or through a licensee) or assigning it to a manufacturer’. (23)
48. From the initial stages of the legislative process that led to the adoption of the regulation, the notion of ‘successor in title’ therefore referred to the transferee of the rights to exploit the Community design, that is to say the person to whom such rights, initially vested in the designer, were contractually assigned.
49. If the notion of ‘successor in title’ contained in Article 14(1) of the regulation must be interpreted in that manner – and in my view there is no evidence to suggest otherwise – the interpretation put forward by the Commission in the present case, according to which Article 14 sets out a general rule in favour of conferring the right to the Community design on the designer, must be rejected; such a rule would only permit the exception expressly set out in Article 14(3), and would not allow any contribution from the laws of the Member States.
50. The regulation in fact places the designer and his successor in title, as defined above, on the same footing as regards acquiring the ownership of the rights to exploit the Community design, the only obvious difference being that the designer acquires such rights in an original capacity, as a result of creating the design, while the successor in title derives them by means of transfer.
51. In that context, the employer and the person commissioning the Community design are both successors in title to the designer.
52. In the first case, however, the Community legislature has seen fit to introduce uniform rules on the basis of which, in the absence of a specific agreement of the parties to the contract of employment or of a provision of national law applicable to such a contract that would confer the right to the design produced by the employee on the designer, the right to the design is to vest in the employer without the need for a specific transfer. In that respect, contrary to the Commission’s argument, Article 14(3) does not introduce an exception to the rule laid down by Article 14(1), but supplements it, providing for a separate set of rules where it is necessary to determine the right to the Community design in the context of a specific contractual relationship.
53. In the second case, on the other hand, in the absence of a specific provision in the regulation providing a uniform set of rules for determining the right to the commissioned design, the scope and method of transferring such a right from the designer to the person commissioning the design are to be specified on the basis of the intention of the parties set out in the contract, and also in accordance with the applicable law. Furthermore, since, unlike the initial contents of the draft proposal annexed to the Green Paper, the regulation also does not lay down a uniform rule of conflict to identify the law applicable to the contract – the contract which commissions the creation of the design to a service provider with a view to the subsequent exploitation of that design – such a law must therefore logically be determined on the basis of the Member States’ rules of private international law.
54. In the case before the national court, it therefore falls to that court, in accordance with Article 88(2) of the regulation, to apply the relevant provisions of Spanish law, as the law applicable to the contract entered into between AC&G and Cul de Sac, in order to determine who owns the unregistered Community design which is the subject of the infringement proceedings brought by the FEIA before the national court.
V – Conclusion
55. In light of the foregoing, I propose that the Court should answer the questions referred for a preliminary ruling by the Juzgado de lo Mercantil n. 1 de Alicante as follows:
(1) Article 14(3) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted as referring only to Community designs produced by the employee in the context of an employment relationship.
(2) Articles 14 and 88 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted as meaning that the ownership of the right to a design created in the context of contractual relationship other than an employment relationship, as is the case of designs produced by a service provider on behalf of the person commissioning the design, must be determined on the basis of the intention expressed by the parties and of the law applicable to the contract. The law of a Member State is not in conflict with Article 14(3) of the regulation where, for the purpose of determining the ownership of the right to a design, it places on an equal footing designs produced by a service provider on behalf of the person commissioning the design and designs created by an employee in the context of an employment relationship.