# C_2016296EN.01000901.xml

| 16.8.2016 | EN | Official Journal of the European Union | C 296/9 |
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16.8.2016

EN

Official Journal of the European Union

C 296/9

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Judgment of the Court (Fifth Chamber) of 9 June 2016 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Jørn Hansson v Jungpflanzen Grünewald GmbH

(Case C-481/14) (1)

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((Reference for a preliminary ruling - Intellectual and industrial property - Community plant variety rights - Regulation (EC) No 2100/94 - Infringement - Reasonable compensation - Compensation for damage - Costs of proceedings and out-of-court expenses))

(2016/C 296/12)

Language of the case: German

Referring court

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Parties to the main proceedings

Applicant: Jørn Hansson

Applicant:

Defendant: Jungpflanzen Grünewald GmbH

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 94 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the right to compensation which it establishes for the holder of a plant variety right that has been infringed encompasses all the damage sustained by that holder, although that article cannot serve as a basis either for the imposition of a flat-rate ‘infringer supplement’ or, specifically, for the restitution of the profits and gains made by the infringer. |
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1.

Article 94 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the right to compensation which it establishes for the holder of a plant variety right that has been infringed encompasses all the damage sustained by that holder, although that article cannot serve as a basis either for the imposition of a flat-rate ‘infringer supplement’ or, specifically, for the restitution of the profits and gains made by the infringer.

| 2. | The concept of ‘reasonable compensation’, provided for in Article 94(1) of Regulation No 2100/94, must be interpreted as meaning that it covers, in addition to the fee that would normally be payable for licensed production, all damage that is closely connected to the failure to pay that fee, which may include, inter alia, payment of default interest. It is for the referring court to determine the circumstances which require that fee to be increased, bearing in mind that each of them may be taken into account only once for the purpose of determining the amount of reasonable compensation. |
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2.

The concept of ‘reasonable compensation’, provided for in Article 94(1) of Regulation No 2100/94, must be interpreted as meaning that it covers, in addition to the fee that would normally be payable for licensed production, all damage that is closely connected to the failure to pay that fee, which may include, inter alia, payment of default interest. It is for the referring court to determine the circumstances which require that fee to be increased, bearing in mind that each of them may be taken into account only once for the purpose of determining the amount of reasonable compensation.

| 3. | Article 94(2) of Regulation No 2100/94 must be interpreted as meaning that the amount of the damage referred to in that provision must be determined on the basis of the specific matters put forward in that regard by the holder of the variety infringed, if need be using a lump-sum method if those matters are not quantifiable. It is not contrary to that provision if the costs incurred in an unsuccessful interlocutory application are left out of account in the determination of that damage or if the out-of-court expenses incurred in connection with the main action are not taken into consideration. However, a condition for not taking those expenses into account is that the amount of the legal costs that are likely to be awarded to the victim of the infringement is not such, in view of the sums he has incurred in respect of out-of-court expenses and their utility in the main action for damages, as to deter him from bringing legal proceedings in order to enforce his rights. |
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3.

Article 94(2) of Regulation No 2100/94 must be interpreted as meaning that the amount of the damage referred to in that provision must be determined on the basis of the specific matters put forward in that regard by the holder of the variety infringed, if need be using a lump-sum method if those matters are not quantifiable. It is not contrary to that provision if the costs incurred in an unsuccessful interlocutory application are left out of account in the determination of that damage or if the out-of-court expenses incurred in connection with the main action are not taken into consideration. However, a condition for not taking those expenses into account is that the amount of the legal costs that are likely to be awarded to the victim of the infringement is not such, in view of the sums he has incurred in respect of out-of-court expenses and their utility in the main action for damages, as to deter him from bringing legal proceedings in order to enforce his rights.

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(1)  OJ C 34, 2.2.2015.

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