# C_2011038EN.01000202.xml

| 5.2.2011 | EN | Official Journal of the European Union | C 38/2 |
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5.2.2011

EN

Official Journal of the European Union

C 38/2

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Appeal brought on 17 December 2010 by Brookfield New Zealand Ltd, Elaris SNC against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2010 in Case T-135/08: Schniga v OCVV — Elaris et Brookfield New Zealand (Gala Schnitzer)

(Case C-534/10 P)

2011/C 38/03

Language of the case: English

Parties

Parties

Appellants: Brookfield New Zealand Ltd, Elaris SNC (represented by: M. Eller, Rechtsanwalt)

Appellants:

Other parties to the proceedings: Community Plant Variety Office, Schniga GmbH

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court |
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set aside the judgment of the General Court

| — | refer the case back to the General Court for judgment or, in the alternative, by way of final judgment, dismiss the action of Plaintiff Schniga GmbH and consequently confirm the decision of the Board of Appeal of the CPVO of 21 November 2007 in Cases A-003/2007 and A-004/2007 |
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refer the case back to the General Court for judgment or, in the alternative, by way of final judgment, dismiss the action of Plaintiff Schniga GmbH and consequently confirm the decision of the Board of Appeal of the CPVO of 21 November 2007 in Cases A-003/2007 and A-004/2007

| — | order that the costs be reimbursed. |
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order that the costs be reimbursed.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant submits that the contested judgment should be set aside on the following grounds:

I.   Inadmissibility of the third plea in law put forward by the Applicant Schniga GmbH. Illegitimate review of the facts as assessed by the Board of Appeal. Infringement of Art. 73(2) of Regulation No. 2100/94 (1) (hereinafter CR).

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| — | The third plea in law, put forward by the Applicant Schniga GmbH in support of its action for annulment of the Board of Appeal's decision and upheld by the contested judgment, ought to have been declared inadmissible, since it implied a review of facts, not allowed under the provision of Art. 73(2) CR. |
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The third plea in law, put forward by the Applicant Schniga GmbH in support of its action for annulment of the Board of Appeal's decision and upheld by the contested judgment, ought to have been declared inadmissible, since it implied a review of facts, not allowed under the provision of Art. 73(2) CR.

| — | The General Court infringed Art. 73(2) CR by illegitimately reviewing findings of fact by the Board of Appeal concerning the actual content of the individual request within the meaning of Art. 55(4) CR and the understanding of them by the Applicant. |
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The General Court infringed Art. 73(2) CR by illegitimately reviewing findings of fact by the Board of Appeal concerning the actual content of the individual request within the meaning of Art. 55(4) CR and the understanding of them by the Applicant.

II.   Infringement of Art. 55(4) in connection with Art. 61(1)(b) and with Art. 80 of Regulation No. 2100/94 (hereinafter CR)

| — | The General Court erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office the power to make requests in individual cases, the violation of which entails the rejection of an application according to art. 61(1)(b) CR, not only with reference to the quality of the material to be submitted within a certain time, but also with reference to the documentary proof of such quality. |
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The General Court erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office the power to make requests in individual cases, the violation of which entails the rejection of an application according to art. 61(1)(b) CR, not only with reference to the quality of the material to be submitted within a certain time, but also with reference to the documentary proof of such quality.

| — | The General Court erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office the power to split its requests in individual cases into two autonomous and independent requests, one concerning the material itself and one concerning the documentary proof of quality, the violation of which entails the rejection of an application in accordance with art. 61(1)(b) CR. |
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The General Court erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office the power to split its requests in individual cases into two autonomous and independent requests, one concerning the material itself and one concerning the documentary proof of quality, the violation of which entails the rejection of an application in accordance with art. 61(1)(b) CR.

| — | The General Court further erred in affirming (or implicitly assuming) that art. 55(4), in conjunction with art. 61(1)(b) CR, confers upon the Office the power to permit new submission of material, in a situation where the previously set time limit for submission of material of a certain quality had already elapsed, merely because the time limit for sending documentary evidence as to the quality of such material had not yet elapsed. |
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The General Court further erred in affirming (or implicitly assuming) that art. 55(4), in conjunction with art. 61(1)(b) CR, confers upon the Office the power to permit new submission of material, in a situation where the previously set time limit for submission of material of a certain quality had already elapsed, merely because the time limit for sending documentary evidence as to the quality of such material had not yet elapsed.

| — | The General Court erred in affirming (or implicitly assuming) that art. 55(4) in conjunction with art. 61(1)(b) CR confers upon the Office the power to allow a new submission of virus free material, once the time limit for the submission of the said material had elapsed and once it was definitely clear that the said material was not virus free. |
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The General Court erred in affirming (or implicitly assuming) that art. 55(4) in conjunction with art. 61(1)(b) CR confers upon the Office the power to allow a new submission of virus free material, once the time limit for the submission of the said material had elapsed and once it was definitely clear that the said material was not virus free.

| — | The General Court further erred in affirming (or implicitly assuming) — given that the submitted material was virus infected and that, therefore, no health certificate for this material could have been sent and was never going to be sent — that the wording ‘as soon as possible’, with reference to the invitation to send the missing health certificate for material already submitted, could not be construed as a time limit and in any case not as an elapsed time limit, with reference to an individual request within the meaning of art. 55(4) CR, leading to the rejection of the application in accordance with art. 61(1)(b) CR. |
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The General Court further erred in affirming (or implicitly assuming) — given that the submitted material was virus infected and that, therefore, no health certificate for this material could have been sent and was never going to be sent — that the wording ‘as soon as possible’, with reference to the invitation to send the missing health certificate for material already submitted, could not be construed as a time limit and in any case not as an elapsed time limit, with reference to an individual request within the meaning of art. 55(4) CR, leading to the rejection of the application in accordance with art. 61(1)(b) CR.

| — | The General Court further erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office full discretionary power to satisfy itself, without any further hierarchical or judicial review, of the legal precision and clarity of its requests in individual cases, the violation of which entails the rejection of an application in accordance with art. 61(1)(b) CR, and in further affirming (or implicitly assuming) that such discretionary evaluation by the Office can be carried out a) whether or not the applicant has formally and timely asked for reinstatement ex art. 80 CR, and b) without any consideration of the actual understanding by the applicant of such a request or as to his good or bad faith in the interpretation of such a request. |
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The General Court further erred in affirming (or implicitly assuming) that art. 55(4) CR confers upon the Office full discretionary power to satisfy itself, without any further hierarchical or judicial review, of the legal precision and clarity of its requests in individual cases, the violation of which entails the rejection of an application in accordance with art. 61(1)(b) CR, and in further affirming (or implicitly assuming) that such discretionary evaluation by the Office can be carried out a) whether or not the applicant has formally and timely asked for reinstatement ex art. 80 CR, and b) without any consideration of the actual understanding by the applicant of such a request or as to his good or bad faith in the interpretation of such a request.

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(1)  OJ L 227, p. 1

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