CELEX: 62012CJ0546
Appeals
Community plant variety rights
Community Plant Variety Office (CPVO)
Regulation (EC) No 2100/94
Articles 20 and 76
Regulation (EC) No 874/2009
Article 51
Application to initiate nullity proceedings in respect of Community plant variety rights
Principle of examination by the CPVO of its own motion
Proceedings before the Board of Appeal of the CPVO
Substantial evidence

By his appeal, the appellant seeks to have set aside the judgment of the General Court of the European Union in
Schräder
v
CPVO
—
Hansson (LEMON SYMPHONY)
, T‑133/08, T‑134/08, T‑177/08 and T‑242/09,
EU:T:2012:430
(‘the judgment under appeal’), in which the General Court dismissed his action brought against the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 23 January 2009 (Case A 010/2007), concerning an application for annulment of the Community plant variety right granted for the variety LEMON SYMPHONY (‘the decision at issue’).
Legal context
Article 6 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (
OJ 1994 L 227, p. 1
), as amended by Council Regulation (EC) No 2506/95 of 25 October 1995 (
OJ 1995 L 258, p. 3
; ‘Regulation No 2100/94’), provides that in order to obtain Community plant variety rights, a variety must be, inter alia, distinct and new.
Article 7 of that regulation provides:
‘1.   A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application determined pursuant to Article 51.
...’
Article 10 of Regulation No 2100/94 lays down the criteria governing the condition that a variety for which Community plant variety rights are being sought must be new.
Article 20 of that regulation, on the nullity of Community plant variety rights, provides:
‘1.   The [CPVO] shall declare the Community plant variety right null and void if it is established:
(a)
that the conditions laid down in Articles 7 or 10 were not complied with at the time of the Community plant variety right;
or
(b)
that where the grant of the Community plant variety right has been essentially based upon information and documents furnished by the applicant, the conditions laid down in Articles 8 and 9 were not complied with at the time of the grant of the right;
or
(c)
that the right has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled.
2.   Where the Community plant variety right is declared null and void, it shall be deemed not to have had, as from the outset, the effects specified in this Regulation.’
Articles 54 and 55 of that regulation describe the substantive examination and the technical examination which a plant variety must undergo in order to obtain Community plant variety rights.
As regards the rules governing proceedings before the CPVO, Article 75 of that regulation states:
‘Decisions of the [CPVO] shall state the reasons on which they are based. They shall be based only on grounds or evidence on which the parties to proceedings have had an opportunity to present their comments orally or in writing.’
Article 76 of Regulation No 2100/94 provides:
‘In proceedings before it the [CPVO] shall make investigations on the facts of its own motion, to the extent that they come under the examination pursuant to Articles 54 and 55. It shall disregard facts or items of evidence which have not been submitted within the time limit set by the [CPVO].’
Article 81 of Regulation No 2100/94, relating to general principles, is drafted as follows:
‘1.   In the absence of procedural provisions in this Regulation or in provisions adopted pursuant to this Regulation, the [CPVO] shall apply the principles of procedural law which are generally recognized in the Member States.
...’
Commission Regulation (EC) No 874/2009 of 17 September 2009 lays down implementing rules for the application of Regulation No 2100/94 as regards proceedings before the CPVO (
OJ 2009 L 251, p. 3
).
As regards appeals against the decisions of the CPVO, Article 51 of that regulation provides:
‘Unless otherwise provided, the provisions relating to proceedings before [the CPVO] shall apply to appeal proceedings
mutatis mutandis
; parties to proceedings shall in that regard be treated as parties to appeal proceedings.’
Article 63 of that regulation provides:
‘1.   Minutes of oral proceedings and of the taking of evidence shall record the essentials of the oral proceedings or of the taking of evidence, the relevant statements made by the parties to proceedings, the testimony of the parties to proceedings, witnesses or experts and the result of any inspection.
2.   The minutes of the testimony of a witness, expert or party to proceedings shall be read out or submitted to him so that he may examine them. It shall be noted in the minutes that this formality has been carried out and that the person who gave the testimony approved the minutes. Where his/her approval is not given, his/her objections shall be noted.
3.   The minutes shall be signed by the employee who drew them up and by the employee who conducted the oral proceedings or taking of evidence.
4.   The parties to proceedings shall be provided with a copy and, where appropriate, a translation of the minutes.’
Background to the dispute and the decision at issue
The General Court set out the facts giving rise to the dispute as follows:
‘5
On 5 September 1996, the intervener, Mr Jørn Hansson applied to the [CPVO] for a Community plant variety right pursuant to [Regulation No 2100/94]. That application was registered under number 1996/0984. The plant variety for which protection was thereby sought is the variety LEMON SYMPHONY, belonging to the species
Osteospermum ecklonis
.
...
The CPVO directed the Bundessortenamt (German Federal Plant Variety Office) to conduct the technical examination of LEMON SYMPHONY pursuant to Article 55(1) of [Regulation No 2100/94].
By letter of 6 November 1996, the Bundessortenamt requested the CPVO to provide it with LEMON SYMPHONY plant material to enable it to conduct the technical examination. That letter specified that that material should consist of “20 young plants of marketable quality, neither trimmed nor treated with growth regulators”.
The intervener sent the plant material requested to the Bundessortenamt on 10 January 1997.
By letter of 13 January 1997, signed by Ms Menne, the agent of the Bundessortenamt responsible for the technical examination of LEMON SYMPHONY, the Bundessortenamt informed the CPVO as follows:
“... we hereby inform you that the propagating material of the variety referred to in the subject heading which was sent to us consists of plants in bud intended for sale which have been treated with growth regulators and trimmed. Therefore, there is a risk that the technical examination will not progress satisfactorily.”
The technical examination was nevertheless subsequently carried out at some point in 1997, although the Bundessortenamt is not yet in a position to confirm whether it was conducted directly on the plant material sent by the intervener or on cuttings obtained from that material, as appears to be indicated by a handwritten note dated 30 January 1997 in the file, which states: “The Bundessortenamt has taken cuttings, wait, TK 30/01/97”. In that technical examination, which was carried out on the basis of the Bundessortenamt’s “Table of Characteristics VI” of 8 August 1997, applicable at that time as the test guidelines, LEMON SYMPHONY was compared to a number of other
Osteospermum
varieties. At the end of that technical examination, the Bundessortenamt concluded that LEMON SYMPHONY fulfilled the DUS criteria necessary for entitlement to a Community plant variety right.
On 16 October 1997, on the basis of the same “Table of Characteristics VI”, the Bundessortenamt drafted an examination report to which the official description of LEMON SYMPHONY was attached as an annex. This shows that the characteristic “Attitude of shoots” was expressed as “erect” (score of 1).
By a decision of the CPVO of 6 April 1999, a Community plant variety right was granted for LEMON SYMPHONY and the official description of that variety was compiled by the Bundessortenamt in 1997 and reproduced in the Register of Community Plant Variety Rights.
On 26 November 2001, the [appellant] … applied to the CPVO for a Community plant variety right pursuant to [Regulation No 2100/94]. That application was registered under number 2001/1758. The plant variety for which the right was thereby sought was the variety SUMOST 01, belonging to the species
Osteospermum ecklonis
. …
Being of the view that the sale of SUMOST 01 infringed the rights which he possesses over LEMON SYMPHONY, the intervener brought an action for infringement … before the German civil courts, seeking an order requiring [the cessation of the marketing of] SUMOST 01 plus damages. After having ordered a court expert’s report from the Bundessortenamt, which concluded, after a “comparative growing trial”, that SUMOST 01 could not be clearly distinguished from LEMON SYMPHONY, the Landgericht Düsseldorf (Düsseldorf Regional Court, Germany) granted those requests by a decision of 12 July 2005, confirmed on appeal by a judgment of the Oberlandesgericht Düsseldorf (Düsseldorf Higher Regional Court, Germany) of 21 December 2006. During the compilation of that court expert’s report, [it was] submitted that the LEMON SYMPHONY plant material used in order to make the comparison did not match the plant material examined in 1997, for the purposes of the grant to that variety of the Community plant variety right. ...
During the infringement proceedings before the German civil courts, the intervener advanced the contention that LEMON SYMPHONY had never been an erect variety. He produced, in this connection, an expert report of 21 November 2003 … In that report, the expert stated:
“The Bundessortenamt’s 1997 examination defines LEMON SYMPHONY as an erect variety. According to the experience acquired and observations gathered in tests, assessments and growing trials conducted over the last few years, LEMON SYMPHONY is not a variety which grows in a completely erect way. … The NAIROBI variety, included as a comparison with regard to its erect growth in the table of characteristics in the TG/176/3 examination guidelines, grows in an erect manner throughout its growing period. The attitude of NAIROBI differs markedly from that of LEMON SYMPHONY. Generally speaking, some subsequent descriptions of varieties drawn up by the Bundessortenamt, for example the SEIMORA variety, describe other SYMPHONY varieties with the same growing characteristics as LEMON SYMPHONY as semi-erect.”
While the infringement proceedings before the German civil courts were in progress, the CPVO directed the Bundessortenamt to carry out a technical examination of SUMOST 01 in accordance with Article 55(1) of [Regulation No 2100/94]. In that technical examination, carried out from 2001, LEMON SYMPHONY, among other plants, was used as a comparison variety. That technical examination was carried out under the new TG/176/3 guidelines for the performance of the distinctness, uniformity and stability test, laid down on 5 April 2000 by the International Union for the Protection of New Varieties of Plants (UPOV).
...
On 7 October 2004, the Bundessortenamt ... concluded that [SUMOST 01] was not clearly distinguishable from the other widely-known varieties, inter alia LEMON SYMPHONY.
On 26 October 2004, the [appellant] filed an application for cancellation of the Community plant variety right granted to LEMON SYMPHONY, pursuant to Article 21 of [Regulation No 2100/94] … on the ground that, since 2002 at least, that variety no longer corresponded to its official description entered in 1997 in the Register of Community Plant Variety Rights. In support of his application he submitted, essentially, that, in the examination of LEMON SYMPHONY carried out in 2001 on the basis of the TG/176/3 test guidelines, applicable since 2001, various characteristics of that variety had received different scores in comparison with the official description of that same variety dating from 1997. That demonstrated, he submitted, that the variety at issue lacked stability.
On 7 December 2004, the CPVO decided to carry out a technical verification in accordance with Article 64 of [Regulation No 2100/94], in order to check whether LEMON SYMPHONY continued to exist in the same form. The [appellant] and the intervener were informed of that decision on 15 December 2004. The guidelines applied for the purposes of the technical examination were those of the protocol for the distinctness, uniformity and stability test CPVO-TP/176/1, laid down on 31 October 2002 by the CPVO and itself based on the TG/176/3 test guidelines.
It is apparent from a letter of 5 January 2005 from the Bundessortenamt to the CPVO that, in general, various factors could be behind the variations noted in the description of the expressions of the characteristics, such as variations linked to environmental factors, a change in the scale of scores in the event of a significant change in the number of comparison varieties to be taken into consideration and changes in the scores due to the application of new test guidelines. …
...
On 14 September 2005, the Bundessortenamt compiled an examination report concluding that LEMON SYMPHONY should be retained. A new description of the variety, dated the same day, was attached as an annex to that report, from which it is apparent, inter alia, that the characteristic “Attitude of shoots” was expressed as “semi-erect to horizontal” (score of 4).
...
By e-mail of 18 May 2006, the Bundessortenamt stated as follows to the OCVV:
“Please find attached the photographs of LEMON SYMPHONY taken in 1997, 2003 and 2004. You can see that the attitude of the shoots has not changed.
...”
By letter of 12 June 2006, the CPVO again wrote to the Bundessortenamt as follows: “In order to allow the [CPVO] to establish that link, we would be grateful if you could indicate, in respect of each characteristic [referred to in] the protocol on
Osteospermum
in force in 1997, what the level of expression of the variety LEMON SYMPHONY in the 2005 trial would be or what the relationship is between the observations made in accordance with the protocol adopted in 2001.”
...
It is apparent from the Bundessortenamt’s answer of 2 August 2006 and from the comparison of the results of the technical examinations of LEMON SYMPHONY carried out in 1997 and 2005 respectively, compiled by that office and sent to the [appellant] on 25 August 2006, that, according to that office, the difference in the score for the characteristic “Attitude of shoots” could be explained by the fact that there was no comparison variety in the “Table of Characteristics VI” used by [the CPVO] in 1997 and that LEMON SYMPHONY was the most erect variety during that year. Moreover, there had been a significant increase in the number of
Osteospermum ecklonis
species varieties since 1997 and the test guidelines had been partially amended, requiring the levels of expression to be adapted.
By letter of 25 August 2006, the CPVO proposed to the intervener to adapt the official description of LEMON SYMPHONY entered in 1997 in the Register of Community Plant Variety Rights to the new description of the variety of 14 September 2005. The CPVO took the view that such an adaptation was necessary on account, first, of the progress made in plant breeding since the examination of that variety in 1997 and, second, of the amendment of the test guidelines in 2001.
The intervener accepted that proposal by letter of 22 September 2006.
By decision of 19 February 2007 (“the refusal decision”), the CPVO upheld the objections raised by the intervener against the grant of a Community plant variety right to SUMOST 01 and refused the application for a Community plant variety right for that variety, essentially on the ground that that variety was not clearly distinguishable from LEMON SYMPHONY and that the conditions set out in Article 7 of [Regulation No 2100/94] had therefore not been met. ...
On 11 April 2007, the [appellant] filed an application for annulment, pursuant to Article 20 of [Regulation No 2100/94], of the Community plant variety right granted to LEMON SYMPHONY, essentially on the ground that that variety had never existed in the form reproduced in the official description entered in the Register of Community Plant Variety Rights in 1997.
By letter of 18 April 2007, the CPVO informed the intervener of its decision to adapt, of its own motion, the official description of LEMON SYMPHONY, in accordance with Article 87(4) of [Regulation No 2100/94] (“the decision on the adaptation of the description”). The adapted description as it followed from the 2005 technical examination was enclosed with that letter.
By letter of 10 May 2007 (“the decision on the application for cancellation”), the CPVO informed the [appellant] that the competent committee had verified whether the conditions for the application of Article 21 of [Regulation No 2100/94] were met and had reached the decision that that was not the case. ...
…
On 21 May 2007, the CPVO informed the [appellant] of the decision on the adaptation of the description and the replacement of the official description of LEMON SYMPHONY entered in the Register of Community Plant Variety Rights in 1997 by that of 2005.
By letter of 26 September 2007, the CPVO rejected the application for annulment of the Community plant variety right granted to LEMON SYMPHONY filed by the [appellant] under Article 20 of [Regulation No 2100/94] (“the decision on the application for annulment”). ...
Proceedings before the Board of Appeal of the CPVO in Cases A 005/2007, A 006/2007 and A 007/2007
On 10 May 2007, the [appellant] brought an appeal before the Board of Appeal of the CPVO [the Board of Appeal], registered under number A 005/2007, against the refusal.
...
On 11 June 2007, the [appellant] brought an appeal before the Board of Appeal, registered under number A 006/2007, against the decision on the application for cancellation.
...
On 12 July 2007, the [appellant] brought an appeal before the Board of Appeal, registered under number A 007/2007, against the decision on the adaptation of the description.
...
Despite the [appellant]’s objections, the Board of Appeal held the oral proceedings in each of the three cases A 005/2007, A 006/2007 and A 007/2007 on 4 December 2007, in the absence of the [appellant], as the minutes of the hearing show. ...
During those proceedings, Ms Menne attended as an expert of the Bundessortenamt and agent of the CPVO. She stated, inter alia, that the LEMON SYMPHONY plant material submitted for the technical examination in 1997 had undoubtedly been treated with growth regulators, but that nevertheless no problems had arisen in that examination “because the plants grew completely normally”. She also pointed out that, at the time of that technical examination, “the effect of the growth regulators had worn off” and asserted that “in the case of LEMON SYMPHONY, there [was] no uncertainty as to the quality of the trials carried out in July/August 1997”. The intervener, for his part, contended that “growth regulators in general act for only four to six weeks”, in particular in the case of
Osteospermum
.
By decision of 4 December 2007 (Case A 006/2007), the Board of Appeal dismissed as admissible, but unfounded, the appeal brought by the [appellant] against the decision on the application for revocation.
By decision of 4 December 2007 (Case A 005/2007), the Board of Appeal dismissed as admissible, but unfounded, the appeal brought by the [appellant] against the refusal decision.
By decision of 4 December 2007 (Case A 007/2007), the Board of Appeal dismissed as inadmissible the appeal brought by the [appellant] against the decision on the adaptation of the description.
In each of those three cases, the Board of Appeal first of all found that the summons to the oral proceedings had been sent in accordance with the proper procedure. It observed, in this respect, that, although it was true that the one-month notice period set in Article 59(1) of [Regulation No 874/2009] had not been observed, the summons not having been notified to the [appellant] until 6 November 2007, that was of no consequence ...
...
Proceedings before the Board of Appeal of the CPVO in Case A 010/2007
On 19 October 2007, the [appellant] brought an appeal before the Board of Appeal, registered under number A 010/2007, against the decision on the application for annulment.
In support of that appeal, the [appellant] submitted, essentially, that the plant material on which the LEMON SYMPHONY technical examination had been carried out in 1997 was defective. He also raised the possibility that cuttings had been taken from the plants sent and that those cuttings were then used in the technical examination. … He also pointed out that the varieties referred to by way of example in the test guidelines applied from 2001 had, with the exception of the variety NAIROBI, all been compared with LEMON SYMPHONY in 1997. Having regard to the statements made by Ms Menne and the intervener at the hearing on 4 December 2007 in Cases A 005/2007, A 006/2007 and A 007/2007, the [appellant] offered to prove, by means of an expert opinion, his claim that the repercussions of treatment with growth regulators on the examination were not limited to a duration of four to six weeks. Lastly, the [appellant] explained that his application for annulment was founded on the combined provisions of Article 20(1)(a) and Article 7 of [Regulation No 2100/94]. He submitted that, given that a variety cannot be regarded as distinct unless it is distinguishable by reference to the expression of the characteristics which result from a particular genotype or combination of genotypes, no distinction can be made where the expression of the characteristics found results from mechanical treatment and treatment with growth regulators.
After having been summoned to the hearing, the [appellant] objected, in a supplementary pleading of 12 January 2009, to Ms Menne’s taking part in that hearing and to her statements being taken into account.
The [appellant] also repeated his offer to prove, by means of an expert opinion, that the results of the DUS examination of LEMON SYMPHONY carried out in 1997 were not explained by the genotype, but by the chemical and mechanical treatment or the fact that cuttings of the plants sent had been used. Moreover, the [appellant] expressly requested to be able to submit the proposed evidence.
...
By [the decision at issue], the Board of Appeal dismissed as admissible, but unfounded, the appeal brought by the [appellant] against the decision on the application for annulment …’
Procedure before the General Court and the judgment under appeal
By application lodged on 24 June 2009, the appellant brought an action against the decision at issue.
By order of 15 June 2010, the President of the General Court decided to join the actions brought by the appellant against Decisions A 007/2007 (Case T‑133/08), A 006/2007 (Case T‑134/08), A 005/2007 (Case T‑177/08) and A-010/2007 (Case T‑242/09) for the purposes of the oral procedure and the judgment.
Case T‑242/09
In support of his action in Case T‑242/09, the appellant relied on four pleas in law for the annulment.
As regards the first plea alleging infringement of Articles 76 and 81 of Regulation No 2100/94, the General Court held, in paragraph 126 of the judgment under appeal, that those provisions are inapplicable to nullity proceedings in respect of a Community plant variety right under Article 20 of that regulation, having regard to the actual wording of Article 76. It concluded in paragraphs 128 and 129 of that judgment that the burden of proof that a plant variety does not satisfy the conditions for obtaining a Community plant variety right falls on the party challenging that right.
Holding that the system established by Regulation No 2100/94 is consistent with the provisions in force in relation to Community designs and with general principles of law, the General Court rejected that argument as irrelevant.
The General Court added, however, in paragraph 134 of the judgment under appeal, that in any event proceedings before the CPVO are not purely inquisitorial in nature, since the parties must plead in due time the facts which they want the CPVO to determine and adduce the evidence which they wish to be admitted by that office.
On that basis, the General Court carried out an examination of the arguments advanced by the appellant in paragraphs 135 to 170 of the judgment under appeal.
With regard to the refusal by the CPVO to grant the request made by the appellant to adopt measures of inquiry, the General Court, applying by analogy the ruling given in the judgment in
ILFO
v
High Authority
, 51/65,
EU:C:1966:21
, found in paragraph 138 of the judgment under appeal, that at no point in the proceedings before the CPVO had the appellant advanced any evidence or information whatsoever to support his case. It concluded that there was no infringement of the rules on the burden of proof and the taking of evidence and considered that the appellant was in fact seeking to obtain from the General Court a fresh assessment of the relevant facts and evidence.
Therefore, the General Court made a distinction between whether or not the factual findings and assessments made by the Board of Appeal are the result of complex assessments, bearing in mind that, as regards complex assessments requiring expert or scientific knowledge, the review carried out by the General Court is limited to ascertaining whether there has been a manifest error.
As regards, first, the issue of the nature of the plant material used for the technical examination of the variety LEMON SYMPHONY in 1997, the General Court found, in paragraph 149 of the judgment under appeal, that the Board of Appeal had considered that it was well-known that the practice of taking cuttings was commonplace. In that respect, it applied by analogy the case-law relating to the Office for Harmonisation in the Internal Market (OHIM), in accordance with which OHIM’s Boards of Appeal are not required to prove, in their decisions, the accuracy of well-known facts.
The General Court considered that the question of the effect of growth regulators on plant samples supplied for the technical examination of the variety LEMON SYMPHONY concerned complex botanical assessments. It noted in paragraph 157 of the judgment under appeal that the appellant did not adduce any evidence that made it possible to identify a manifest error of assessment.
Secondly, with regard to the appellant’s arguments relating to the adaptation of the original description of the variety LEMON SYMPHONY in 2006, concerning the ‘attitude of shoots’ characteristic, the Court found, in paragraph 161 of the judgment under appeal, that the appellant had failed to demonstrate that that characteristic was decisive for the grant of a Community plant variety right for that plant variety.
Moreover, the General Court made it clear, in paragraph 166 of the judgment under appeal, that the ‘attitude of shoots’ characteristic, the levels of expression of which run from ‘erect’ to ‘drooping’, was not absolute and could, depending on the case, be the subject of a relative and comparative assessment between varieties of the same species.
Therefore, the General Court rejected the first plea in law as being unfounded in part and ineffective in part.
As regards the second plea alleging infringement of Articles 7 and 20 of Regulation No 2100/94, that was rejected by the General Court in the light of the evidence adduced in the examination of the first plea relating to the chemical and mechanical treatment of the material used for the technical examination in 1997 and the use of material which grew from cuttings.
As regards the third plea alleging infringement of Article 75 of Regulation No 2100/94, the General Court stated, in paragraphs 181 and 182 of the judgment under appeal, that the right to be heard did not mean that a judge had to hear the parties on every point of his legal assessment. In particular, in the examination of the first plea, the General Court found that the use of cuttings for a technical examination is a common practice known to the appellant.
As regards the fourth plea alleging infringement of Article 63 of Regulation No 874/2009, the General Court held, in essence, that the Board of Appeal had not committed any procedural error.
The General Court therefore dismissed the entire action.
Cases T‑133/08, T‑134/08 and T‑177/08
With regard to the actions in Cases T‑133/08, T‑134/08 and T‑177/08, the General Court found, in paragraph 217 of the judgment under appeal, that the minimum notice period of one month for the hearing on 4 December 2007 before the Board of Appeal was not observed with regard to the appellant.
The General Court concluded in paragraph 237 of the judgment under appeal that there was a material procedural defect leading to the annulment of the three contested decisions in Cases T‑133/08, T‑134/08 and T‑177/08. However, it refused the request for variation of the decision on the adaptation of the description.
The appeal
In support of his appeal, the appellant relies on five grounds which are subdivided into different arguments.
On the basis of the first and second grounds of appeal, the appellant, in essence, alleges that the General Court infringed the rules on the burden of proof and the taking of evidence, and the principle of the examination of the facts by the CPVO of its own motion. By his third and fourth grounds, the appellant claims that there has been an infringement of the duty to review legality and a failure to state reasons in the judgment under appeal. Under the fifth and sixth grounds, the appellant, in essence, alleges that the General Court did not safeguard his right to be heard and did not carry out a full review of the legality of the decision at issue.
The first ground of appeal
Arguments of the parties
Under his first ground of appeal, the appellant alleges, in essence, that the General Court erred in law in holding that the Board of Appeal could not act of its own motion, and that it infringed his right to an effective remedy and the principle of good administration.
In the first place, the appellant criticises the General Court for having held, in paragraph 126 of the judgment under appeal, that Article 76 of Regulation No 2100/94 did not apply to proceedings before the Board of Appeal and, consequently, for having infringed Article 51 of Regulation No 874/2009.
In the second place, the finding in paragraph 129 of the judgment under appeal that nullity proceedings before the CPVO and its Board of Appeal are adversarial proceedings is not compatible with the wording of Article 20 of Regulation 2100/94. Their inquisitorial nature is also borne out by a comparison with the corresponding provisions on the Community trade mark and Community designs.
In the third place, the General Court distorted the appellant’s arguments at first instance in paragraph 133 of the judgment under appeal.
In the fourth place, the General Court infringed the principles of good administration and the right to an effective remedy by refusing to examine the evidence which he adduced before the Board of Appeal.
The CPVO sets out the specific characteristics of the proceedings before it. In particular, it states that nullity proceedings brought on the basis of Article 20 of Regulation No 2100/94 are exclusively covered by examination of its own motion. Therefore, there is no party to those proceedings, and the CPVO is required to examine all the relevant facts objectively. Mr Hansson argues that the CPVO has a broad discretion with regard to the assessment of evidence submitted by a third party in order to justify the initiation of such proceedings.
In the present case, the CPVO applied those principles and refused to initiate the nullity proceedings requested by the appellant.
Beyond that, the CPVO and Hansson contend that the appellant’s arguments are at best irrelevant, and at the very least inadmissible, in that they seek to challenge the General Court’s assessment of the facts.
Findings of the Court
Since the appellant disputes the approach adopted by the General Court concerning the taking of evidence and the burden of proof in relation to the proceedings before the Board of Appeal, it must be ascertained, first of all, whether the Court erred in law in that context.
In that regard, it must be noted first, as was observed by the General Court in paragraph 126 of the judgment under appeal, that the wording of Article 76 of Regulation No 2100/94 limits the application of the principle that the CPVO is to examine of its own motion the facts to those which are the subject of examination under Articles 54 and 55 of that regulation.
Secondly, under Article 51 of Regulation No 874/2009, the provisions relating to proceedings before the CPVO apply
mutatis mutandis
to appeal proceedings. Thus, the principle of examination of the facts by the CPVO of its own motion also applies in proceedings before the Board of Appeal.
The General Court, consequently, erred in law in holding that the principle of examination of the facts by the CPVO of its own motion does not apply to proceedings before the Board of Appeal.
That error of law, and the arguments set out in paragraph 135 of the judgment under appeal which possibly gave rise to that error, do not, however, in themselves lead to the setting aside of the judgment under appeal given that the General Court, none the less, checked in paragraph 136 et seq. of the judgment under appeal whether the evidence adduced by the appellant before the Board of Appeal meets the criteria pertaining to the principle of the examination of the facts of its own motion.
Thus it is necessary to ascertain, next, whether the General Court did not commit an error of law in that regard.
To that end, it should be noted that the proceedings which led to the decision at issue are proceedings before the Board of Appeal before which there has been brought an appeal against a decision of the CPVO refusing to annul a Community plant variety right pursuant to Article 20(1) of Regulation No 2100/94.
Under that provision, the CPVO must declare the Community plant variety right null and void if it has been established that the conditions laid down in Articles 7 and 10 of Regulation No 2100/94 have not been met on the date the right was granted.
In that regard, the conditions relating, in particular, to distinction and novelty are, under Article 6 of the regulation, a prerequisite for the grant of a Community plant variety right. Therefore, in the absence of those conditions, the right granted is unlawful, and it is in the public interest that it be declared null and void.
It is true that a declaration annulling a right improperly granted can also be made in the interests of a third party, especially where that party made an application for a plant variety right which was refused because the candidate variety was not distinguishable from the improperly protected variety.
However, that cannot justify allowing a third party to apply, in all circumstances and without specific reasons, for the annulment of that protection after the proceedings granting that right, and after the expiry of the time-limits laid down in Article 59 of Regulation No 2100/94 for third parties to lodge their objections.
In that regard, it must be noted that, in the procedure for granting protection, the candidate plant variety, under Articles 54 and 55 of that regulation, must undergo a substantive examination and a thorough and complex technical examination.
Thus, the CPVO has a wide discretion concerning annulment of a plant variety right for the purposes of Article 20 of Regulation No 2100/94, in so far as the protected variety underwent the examination set out in the previous paragraph. Therefore, only where there are serious doubts that the conditions laid down in Articles 7 or 10 of that regulation had been met on the date of the examination provided for under Articles 54 and 55 of that regulation can a re-examination of the protected variety by way of nullity proceedings under Article 20 of Regulation No 2100/94 be justified.
In that context, a third party seeking annulment of a plant variety right must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the grant of a plant variety right following the examination provided for in Articles 54 and 55 of that regulation.
Consequently, in an action brought against the decision at issue, it is for the appellant to demonstrate, on the facts and evidence relating to the substantive and technical examination which he adduced before the CPVO, that the CPVO was required to carry out the review provided for under Article 20(1)(a) of Regulation No 2100/94.
It is in light of those factors that the Court must, finally, examine whether the General Court did not err in law in its review of the application of the principle of ‘examination of the facts of its own motion’ by the Board of Appeal.
As regards evidence which the appellant adduced to justify the annulment of the protection previously granted, the General Court found, first, in paragraph 138 of the judgment under appeal that the appellant did not advance any evidence whatsoever, or the slightest information capable of constituting prima facie evidence to support his claim that the chemical and mechanical treatment or the taking of cuttings such as that carried out in the present case might have distorted the results of the technical examination of the variety LEMON SYMPHONY in 1997.
Secondly, in paragraph 157 of the judgment under appeal, the General Court observed that at no point in the proceedings did the appellant produce any specific information or evidence whatsoever capable of substantiating his submissions, inter alia, as to the lasting effect of the growth regulators.
Finally, as regards the arguments alleging infringement of the principle of good administration and of the right to an effective remedy, it appears from the documents in the file that the appellant argued in support of his action before the Board of Appeal that the plant material, on which the technical examination of the variety LEMON SYMPHONY had been carried out in 1997, was deficient on the grounds that (i) the plants used for the examination had undergone mechanical and chemical treatment, and (ii) they were plant cuttings sent by Mr Hansson.
In view of those findings, and bearing in mind the principles set out in paragraphs 57 and 58 above, the General Court did not err in law in the taking of evidence when it found that the appellant had not adduced, to the requisite legal standard, the facts and evidence which make it possible to establish that the condition laid down in Article 7 of Regulation No 2100/94 had not been fulfilled in the technical examination of the variety LEMON SYMPHONY, which would have justified a declaration of nullity for the purposes of Article 20(1) of that regulation.
Consequently, the arguments alleging infringement of the principle of good administration and of the right to an effective remedy cannot succeed.
It follows from the foregoing that the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
On the basis of his second ground of appeal, the appellant alleges, in essence, that the General Court, in paragraphs 136 to 138 of the judgment under appeal, infringed the rules on the burden of proof and the taking of evidence.
By the first argument under that ground of appeal, the appellant claims that the General Court wrongly applied to the requests for the adoption of measures of inquiry, submitted to the CPVO, the case-law of the Court of Justice arising out of the judgment in
ILFO
v
High Authority
, 51/65,
EU:C:1966:21
, according to which a request for the adoption of measures of inquiry made by a party cannot be accepted if that party offers no evidence whatsoever to justify such measures.
According to the appellant, in doing so, the General Court committed four errors of law. In the first place, the principles of the case-law cited are not compatible with Article 76 of Regulation No 2100/94. In the second place, the General Court failed to comply with its obligation to state reasons, in that it did not explain the appropriateness of applying that case-law. In the third place, it infringed the right to fair process by introducing a condition relating to the adoption of a measure of inquiry which was not mentioned at any stage of the proceedings. In the fourth place, it
wrongly reproduced
the case-law cited, as that case-law does not mention the need for prima facie evidence for the adoption of a measure of inquiry.
By his second argument, the appellant claims that, even assuming that it was for him to produce prima facie evidence in order to put forward his arguments, the judgment under appeal is nevertheless vitiated by an error of law, given that the General Court distorted the facts and evidence which the appellant adduced, particularly with regard to the influence of mechanical and chemical treatment of the plant material examined and propagation by means of cuttings.
The CPVO and Mr. Hansson contend that the judgment under appeal ‘is correct’ irrespective of whether the burden of proof or the burden of proving a prima facie case rests with the appellant, given that the Board of Appeal assessed the arguments and points of view advanced by the appellant. Moreover, the General Court did not err in law in applying the rules thus developed for adopting measures of inquiry.
Findings of the Court
As regards the appellant’s first argument, the General Court cannot be reproached, in the first place, for infringing its obligation to state reasons.
First, it is settled case-law that the obligation for the General Court, under Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof and Article 81 of the Rules of Procedure of the General Court, to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning of the General Court may therefore be implicit on condition that it enables the persons concerned to know the reason for the General Court’s decision and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, judgment in
Nexans and Nexans France
v
Commission
, C‑37/13 P,
EU:C:2014:2030
, paragraph 21 and the case-law cited).
In paragraph 137 of the judgment under appeal, the General Court justified the application by analogy of the principles established in the judgment in
ILFO
v
High Authority
(51/65,
EU:C:1966:21
) to the Board of Appeal on the ground that it is a quasi-judicial body.
Moreover, the very principle of examination of the facts by the CPVO of its own motion under Article 76 of Regulation No 2100/94 does not preclude such an application, since, as is clear from paragraphs 53 and 54 above in the context of a request to open nullity proceedings provided for in Article 20(1) of that regulation, it is for the appellant to provide the substantive evidence showing that there are serious doubts about the legality of the contested protection.
Secondly, as the Advocate General stated in point 76 of her Opinion, Article 81 of Regulation No 2100/94 stipulates that the principles of procedural law generally recognised in the Member States apply to proceedings before the CPVO.
Therefore, the General Court cannot be criticised for having found that the appellant should have presented to the Board of Appeal prima facie evidence in order to secure from it the adoption of a measure of enquiry.
In the second place, it is not clear from the judgment under appeal that the General Court erred in its application of the principles developed in the judgment in
ILFO
v
High Authority
(51/65,
EU:C:1966:21
).
The General Court found in paragraph 138 of the judgment under appeal that the appellant did not advance any evidence whatsoever, or the slightest information to justify his request.
In those circumstances, the appellant cannot claim that the General Court was wrong to hold that he could not seek the adoption of measures of inquiry, given that he did not present prima facie evidence.
In that respect, the appellant claims that the General Court distorted the facts and evidence which he adduced in the proceedings before the CPVO, concerning, first, the influence of the chemical and mechanical treatment of the material used for the technical examination of the variety LEMON SYMPHONY and, secondly, the use of cuttings of that variety for that examination.
It must be noted at the outset that it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, judgment in
CB
v
Commission
, C‑67/13 P,
EU:C:2014:2204
, paragraph 41 and the case-law cited).
In the first place, the appellant refers to the letter of 13 January 1997 sent by the agent of the Bundessortenamt responsible for the technical examination of the variety LEMON SYMPHONY, stating that ‘there is a risk that the technical examination will not progress satisfactorily [because of the treatment with growth regulators of the material sent]’.
In that regard, first, as is clear from the presentation of the facts by the General Court in paragraph 64 of the judgment under appeal, that agent of the Bundessortenamt demonstrated at the hearing before the Board of Appeal in cases A 005/2007, A 006/2007 and A 007/2007 on 4 December 2007 that there was ‘no uncertainty as to the quality of the trials carried out in July/August 1997’, given that the effect of the growth regulators had disappeared.
Secondly, the General Court held in paragraph 164 of the judgment under appeal that it falls within the discretion of the competent national office to examine or decide, during the technical examination, whether the plant material sent by Mr Hansson is in fact inappropriate or whether, as in the present case, the technique of taking cuttings makes it possible for the defects initially affecting the plant material to be remedied.
Since the appellant did not at any time challenge the assertion of the agent of the Bundessortenamt, which was made after the matters on which he relies, and which states that the effects of the growth regulators had disappeared by the time of the technical examination of the variety LEMON SYMPHONY, the General Court concluded, without distorting any facts of the case or any evidence advanced by the appellant, that the appellant had not provided any evidence capable of calling the Board of Appeal’s assessment into question.
In the second place, as regards the appellant’s claims relating to the risks connected with the use of material which grew from propagation by means of cuttings from a variety in order to carry out the technical examination, suffice it to state that the appellant submits that, since such a risk is a matter of common knowledge, it is not necessary to provide evidence of the existence of that risk in the present case.
In those circumstances, the General Court could only find that the appellant had failed to satisfy the conditions necessary for the adoption of a measure of inquiry.
Therefore, the General Court cannot be accused of having distorted the facts of the case or the evidence adduced by the appellant.
In the light of the foregoing, the second ground of appeal cannot succeed.
The third ground of appeal
Arguments of the parties
By his third ground of appeal, the appellant claims, in essence, that the General Court, in paragraphs 141 to 151 of the judgment under appeal, was in breach of its obligation to carry out a review of legality and distorted the facts.
First, the appellant alleges that the General Court failed to appreciate the fact that the CPVO’s expertise concerning the practice of taking cuttings cannot be described as ‘a matter of common knowledge’. In any event, that ‘fact’ was distorted, and that description was not subject to a review of legality.
Secondly, the General Court, in paragraph 147 of the judgment under appeal, erred in law by not giving reasons for its finding that the reasoning of the Board of Appeal is ‘compatible with the objective data of the case, as is apparent from the case-file’.
Thirdly, the appellant identifies certain errors committed by the General Court, in particular in paragraph 147 of the judgment under appeal in its references to certain facts of the case.
The CPVO contends that much of this ground entails a repetition of the arguments submitted in the previous grounds.
Mr Hansson contends that the errors of fact identified by the appellant have no effect on the legality of the judgment under appeal.
Findings of the Court
In the first place, the appellant’s arguments seek, in reality, to challenge the General Court’s assessment of the facts which, as has been noted in paragraph 81 above, and subject to any distortion of the facts, is not open to review by the Court of Justice at the stage of an appeal.
Thus, when the appellant criticises the General Court for finding that, for the technical examination, the use of cuttings taken from plants sent by Mr Hansson is a matter of common knowledge, the appellant necessarily starts from the premiss that material grown from cuttings is not appropriate for conducting that examination; otherwise that argument is irrelevant.
The examination of that factor requires an assessment of the facts which is outside the jurisdiction of the Court of Justice at the stage of an appeal.
In any event, it was for the appellant to provide evidence to that effect in support of his claims, which he has not done, as was established in paragraphs 84 to 86 above.
In the second place, even assuming that the General Court committed errors in designating the names of the agents of the CPVO and of the Bundessortenamt, the appellant does not indicate to what extent those errors are capable of calling into question the lawfulness of the judgment under appeal. In any event, it is not clear that such errors would affect the lawfulness of that judgment.
Consequently, the third ground of appeal must be rejected.
The fourth ground of appeal
Arguments of the parties
By his fourth ground of appeal, which relates to paragraphs 152 to 157 of the judgment under appeal, the appellant alleges, in essence, that the General Court failed to state reasons.
By the first argument within that ground of appeal, the appellant claims that the judgment under appeal is inconsistent in that, on the one hand, in paragraph 10 of the judgment under appeal, the General Court found that the mechanical and chemical treatment of the plant material sent had threatened the technical examination of the variety LEMON SYMPHONY and, on the other, in paragraph 156 of that judgment, the General Court found that the appellant had not presented any specific information establishing that the plant material examined was not appropriate for conducting that examination.
By his second argument, the appellant claims that the General Court should have reviewed whether the evidence relied on contained all the information which should have been taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drawn from it.
The CPVO contends that the appellant challenges only the factual findings made by the General Court. In addition, the second argument under the fourth ground of appeal is wholly unfounded.
Mr Hansson states that it was for the appellant to establish, or at least to provide evidence that growth regulators lead, not only to an incorrect evaluation of the criteria determining the rights, but also to an incorrect assessment of the criterion of distinctiveness laid down in Article 7 of Regulation No 2100/94.
Findings of the Court
Since the appellant claims within this ground that, in the first place, the judgment under appeal is vitiated by a contradiction, suffice it to note, as is clear from paragraph 83 above, that the General Court found that the Bundessortenamt had considered that there was no doubt about the quality of the plant material used for the technical examination of the variety LEMON SYMPHONY. Therefore, the judgment under appeal contains no contradiction when it states, in paragraph 156, that the appellant provided no information to the contrary.
In the second place, in any event, the assessments of the General Court, as they result from paragraphs 152 to 157 of the judgment under appeal, which the appellant challenges under that ground, were made for the sake of completeness in paragraphs 141 to 151 of that judgment. Therefore, even if the fourth ground raised by the appellant in support of his appeal were to be allowed, the judgment under appeal could not, however, be set aside.
Consequently, the fourth ground of appeal must be rejected.
The fifth and sixth grounds of appeal
Arguments of the parties
In the fifth ground of appeal, the appellant disputes the assessments of the General Court in paragraphs 159 to 162 of that judgment.
He submits, in the first place, that the General Court infringed Article 7 of Regulation No 2100/94 by its finding in paragraph 159 of the judgment under appeal that the distinctive character, for the purposes of that provision, of the variety LEMON SYMPHONY was not determined ‘exclusively, if at all’ by reference to the characteristic ‘attitude of shoots’. Furthermore, the General Court also improperly extended the scope of the proceedings.
In the second place, the appellant states that the General Court, in paragraph 160 of the judgment under appeal, distorted the facts in finding that the adapted 2006 description of the variety LEMON SYMPONY did not differ from the original 1997 description. Furthermore, the General Court infringed Article 20(2) of Regulation No 2100/94 in not finding that the variety for which the description was amended should not have been protected.
Under the sixth ground of appeal, which challenges the General Court’s assessments in paragraphs 165 to 168 of the judgment under appeal, the appellant claims, first of all, that that Court distorted the facts in that the appellant did not limit his arguments to the issue of the relative or absolute character of the ‘attitude of shoots’.
Next, the appellant criticises the General Court for having improperly extended the scope of the proceedings to the arguments relating to the proceedings in Case T‑177/08.
Finally, the General Court infringed its obligation to carry out a full review of the legality of the decision at issue by not upholding the appellant’s argument alleging that the Board of Appeal had not taken his arguments into consideration.
In relation to the fifth ground, the CPVO contends that the General Court’s finding in paragraph 159 of the judgment under appeal must be understood as meaning that in 1997 no comparable variety was available.
Mr Hansson contends that the disputed findings are not decisive in terms of the issue of the distinctive character of the protected variety.
In relation to the sixth ground, the CPVO contends that the appellant misinterprets the judgment under appeal. In addition, none of the considerations relating to the attitude of the shoots is decisive for determining the legality of the judgment under appeal.
Mr Hansson contends that the assessment of the distinctiveness of a variety is based on a comparison between the variety sought and known varieties of the same species. Consequently, the distinctive criteria could be assessed only by making such a comparison.
Findings of the Court
As a preliminary point, it must be stated, first, that, by the fifth and sixth grounds of appeal, the appellant is challenging assessments made by the General Court in paragraphs 159 to 162 and 165 to 168 of the judgment under appeal concerning arguments of the appellant which the General Court held to be ineffective, as is stated in paragraph 158 of that judgment.
Consequently, given that the General Court rightly found that the appellant had not adduced any evidence or means of proof capable of challenging the technical examination which resulted in the grant of the right to the variety LEMON SYMPHONY, the appellant’s arguments relating to the level of expression attributed in respect of the characteristic ‘attitude of shoots’ cannot lead to the judgment under appeal being set aside.
Thus, since the appellant has not managed to demonstrate that the plant material used for the technical examination of the variety LEMON SYMPHONY was not appropriate and that the DUS criteria had therefore not been satisfied, the arguments relating to the adaptation of the description of that variety are themselves ineffective.
Secondly, as was observed in paragraph 82 above, an appeal is limited to points of law, since the appraisal of the facts and the assessment of evidence do not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.
In that regard, the appellant cannot challenge the General Court’s factual assessments, in particular in relation to the level of expression attributed in respect of the characteristic ‘attitude of shoots’ concerning the variety LEMON SYMPHONY.
It is in the light of those considerations that each of the arguments advanced in support of the fifth and sixth grounds of the appeal must be examined.
First, the appellant alleges that the characteristic ‘attitude of shoots’ necessarily comes within the examination of the distinctive character of a variety under Article 7 of Regulation No 2100/94.
However, in criticising the General Court for infringing that article, when in paragraph 159 of the judgment under appeal the General Court found that the assessment of the distinctive character of a plant variety was not determined exclusively, if at all, by reference to the ‘attitude of shoots’ characteristic, the appellant has misinterpreted the judgment under appeal.
The General Court did not consider, in the context of the examination of the distinctive character of a variety as provided for under Article 7 of Regulation No 2100/94, that the ‘attitude of shoots’ characteristic should not be taken into account. It is, however, clear that the examination of the distinctive character of a plant variety necessarily presupposes the existence of reference plant varieties. Therefore, it is on the basis of whether such varieties exist that the ‘attitude of shoots’ characteristic must be examined, and that it must play a more, or less, decisive role with regard to the distinctive character of the plant variety to be protected.
Accordingly, the Court of Justice must reject the first and second arguments advanced within the fifth ground of appeal and the third argument advanced within the sixth ground of appeal.
In addition, the General Court cannot be criticised for having considered that the adaptation of the description of the ‘attitude of shoots’ characteristic did not call into question the protection of the variety LEMON SYMPHONY. In so far as that characteristic is determined by a comparison with other plant varieties, a refinement of the description is inevitable where other plant varieties emerge.
In those circumstances, the third and fourth arguments advanced under the fifth ground of appeal must be rejected.
Finally, the appellant cannot, without contradicting himself, criticise the General Court, first, for having ruled on arguments relating to the proceedings in Case T‑177/08, when the appellant himself put forward those arguments, and secondly, for having failed to carry out a full review of the legality of the decision at issue, in that that decision did not take into account the appellant’s arguments relating to the nature of the ‘attitude of shoots’ characteristic, and at the same time criticise the General Court for having specifically ruled on the nature of that characteristic. The first and second arguments advanced within the sixth ground of appeal must therefore be rejected.
Since the fifth and sixth grounds of appeal must be rejected, it is clear from all the foregoing that the appeal must be dismissed in its entirety.
Costs
In accordance with Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the CPVO has applied for costs and Mr Schräder has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (First Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders Mr Ralf Schräder to pay the costs.

[Signatures]
(
*1
)	Language of the case: German.