# C_2006178EN.01000402.xml

| 29.7.2006 | EN | Official Journal of the European Union | C 178/4 |
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29.7.2006

EN

Official Journal of the European Union

C 178/4

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Judgement of the Court (Second Chamber) of 8 June 2006 (references for a preliminary ruling from the Bundesgerichtshof (Germany) — Saatgut-Treuhandverwaltungs GmbH v Ulrich Deppe, Hanne-Rose Deppe, Thomas Deppe, Matthias Deppe, Christine Urban (née Deppe) (C-7/05), Siegfried Hennings (C-8/05), Hartmut Lübbe (C-9/05),

(Joined Cases C-7/05 to C-9/05) (1)

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(Plant varieties - Level of equitable remuneration to be paid to the holder of a Community plant variety right - Article 5(2), (4) and (5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98 - Concept of ‘level of remuneration sensibly lower than the amount charged for the licensed production of propagating material’)

(2006/C 178/07)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Saatgut-Treuhandverwaltungs GmbH

Applicant:

Defendants: Ulrich Deppe, Hanne-Rose Deppe, Thomas Deppe, Matthias Deppe, Christine Urban (née Deppe) (C-7/05), Siegfried Hennings (C-8/05), Hartmut Lübbe (C-9/05)

Defendants:

Re:

Preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(2), (4) and (5) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights (OJ 1995 L 173, p. 14), as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998 (OJ 1998 L 328, p. 6) — Level of equitable remuneration to be paid to the holder of a Community plant variety right — Concept of a level ‘sensibly lower’ than the amount charged for the licensed production of propagating material — Remuneration of 80 % of the amounts payable for such production

Operative part of the judgement

| 1. | Without prejudice to the assessment made by the national court of the other circumstances relevant to each of the main proceedings, a flat-rate remuneration of 80 % of the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area, in the event of recourse to the agricultural exemption referred to in Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights does not satisfy the condition that remuneration has to be ‘sensibly lower’ than the amount charged for the licensed production of propagating material within the meaning of Article 5(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998. |
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1.

Without prejudice to the assessment made by the national court of the other circumstances relevant to each of the main proceedings, a flat-rate remuneration of 80 % of the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area, in the event of recourse to the agricultural exemption referred to in Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights does not satisfy the condition that remuneration has to be ‘sensibly lower’ than the amount charged for the licensed production of propagating material within the meaning of Article 5(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998.

| 2. | The criteria for determining the remuneration to be paid to the holder of a Community plant variety right are set out in Article 5(4) and (5) of Regulation No 1768/95, as amended by Regulation No 2605/98. Those criteria have no retroactive effect but they may serve as a guide for the calculation of that remuneration with respect to planting carried out before the entry into force of Regulation No 2605/98. |
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2.

The criteria for determining the remuneration to be paid to the holder of a Community plant variety right are set out in Article 5(4) and (5) of Regulation No 1768/95, as amended by Regulation No 2605/98. Those criteria have no retroactive effect but they may serve as a guide for the calculation of that remuneration with respect to planting carried out before the entry into force of Regulation No 2605/98.

| 3. | In order for an agreement concluded between organisations of holders and of farmers, as referred to in Article 5(4) of Regulation No 1768/95, as amended by Regulation No 2605/98, to be used as a guideline as regards all its parameters, that agreement must have been notified to the Commission of the European Communities and published in the Official Bulletin of the Community Plant Variety Office and that is so even if it was concluded before the date on which Regulation No 2605/98 entered into force. Such an agreement may provide for a rate of remuneration different from that laid down, in the alternative, in Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98. |
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3.

In order for an agreement concluded between organisations of holders and of farmers, as referred to in Article 5(4) of Regulation No 1768/95, as amended by Regulation No 2605/98, to be used as a guideline as regards all its parameters, that agreement must have been notified to the Commission of the European Communities and published in the Official Bulletin of the Community Plant Variety Office and that is so even if it was concluded before the date on which Regulation No 2605/98 entered into force. Such an agreement may provide for a rate of remuneration different from that laid down, in the alternative, in Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98.

Official Bulletin

| 4. | In the absence of an applicable agreement between organisations of holders and of farmers, the remuneration of a holder of a Community plant variety right has to be established, pursuant to Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98, as a fixed amount which constitutes neither an upper limit nor a lower limit. |
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4.

In the absence of an applicable agreement between organisations of holders and of farmers, the remuneration of a holder of a Community plant variety right has to be established, pursuant to Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98, as a fixed amount which constitutes neither an upper limit nor a lower limit.

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(1)  OJ C 82, 2.4.2005.

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