# C_2020061EN.01000401.xml

| 24.2.2020 | EN | Official Journal of the European Union | C 61/4 |
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24.2.2020

EN

Official Journal of the European Union

C 61/4

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Judgment of the Court (Seventh Chamber) of 19 December 2019 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Club de Variedades Vegetales Protegidas v Adolfo Juan Martínez Sanchís

(Case C-176/18) (1)

(Reference for a preliminary ruling - Community plant variety rights - Regulation (EC) No 2100/94 - Article 13(2) and (3) - Effects of community plant variety rights - Cumulative protection scheme - Planting of variety constituents and harvesting the fruit - Distinction between acts effected in respect of variety constituents and those concerning harvested material - Concept of ‘unauthorised use of variety constituents’ - Article 95 - Provisional protection)

(2020/C 61/04)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Club de Variedades Vegetales Protegidas

Defendant: Adolfo Juan Martínez Sanchís

Operative part of the judgment

| 1. | Article 13(2)(a) and (3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the activity of planting a protected variety and harvesting the fruit thereof, which is not likely to be used as propagating material, requires the authorisation of the holder of the Community plant variety right relating to that plant variety where the conditions laid down in Article 13(3) of that regulation are fulfilled; |
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1.

Article 13(2)(a) and (3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the activity of planting a protected variety and harvesting the fruit thereof, which is not likely to be used as propagating material, requires the authorisation of the holder of the Community plant variety right relating to that plant variety where the conditions laid down in Article 13(3) of that regulation are fulfilled;

| 2. | Article 13(3) of Regulation No 2100/94 must be interpreted as meaning that the fruit of a plant variety, which is not likely to be used as propagating material, may not be regarded as having been obtained through the ‘unauthorised use of variety constituents’ of that plant variety, within the meaning of that provision, where those variety constituents were propagated and sold to a farmer by a nursery in the period between the publication of the application for a Community plant variety right in relation to that plant variety and the grant thereof. Where, after such protection has been granted, those variety constituents were propagated and sold without the authorisation of the right holder, the latter may assert his or her right under Article 13(2)(a) and (3) of that regulation in respect of that fruit, unless he or she had reasonable opportunity to exercise his or her right in relation to those variety constituents. |
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2.

Article 13(3) of Regulation No 2100/94 must be interpreted as meaning that the fruit of a plant variety, which is not likely to be used as propagating material, may not be regarded as having been obtained through the ‘unauthorised use of variety constituents’ of that plant variety, within the meaning of that provision, where those variety constituents were propagated and sold to a farmer by a nursery in the period between the publication of the application for a Community plant variety right in relation to that plant variety and the grant thereof. Where, after such protection has been granted, those variety constituents were propagated and sold without the authorisation of the right holder, the latter may assert his or her right under Article 13(2)(a) and (3) of that regulation in respect of that fruit, unless he or she had reasonable opportunity to exercise his or her right in relation to those variety constituents.

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(1)  OJ C 211, 18.6.2018.

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