# C_2009082EN.01001702.xml

| 4.4.2009 | EN | Official Journal of the European Union | C 82/17 |
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4.4.2009

EN

Official Journal of the European Union

C 82/17

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Appeal brought on 29 January 2009 by Mr Ralf Schräder against the judgment of the Court of First Instance (Seventh Chamber) delivered on 19 November 2008 in Case T-187/06 Ralf Schräder v Community Plant Variety Office

(Case C-38/09 P)

(2009/C 82/32)

Language of the case: German

Parties

Appellant: Ralf Schräder (represented by: T. Leidereiter and W.-A. Schmidt, Rechtsanwälte)

Appellant:

Other party to the proceedings: Community Plant Variety Office (CPVO)

Other party to the proceedings:

Form of order sought

| — | Set aside the judgment of the Court of First Instance (Seventh Chamber) of 18 November 2008 in Case T-187/06; |
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Set aside the judgment of the Court of First Instance (Seventh Chamber) of 18 November 2008 in Case T-187/06;

| — | Allow the appellant's application for annulment of the decision of the Board of Appeal of the CPVO of 2 May 2006 (Reference A003/2004) made in the proceedings at first instance.
  With regard to point 2, in the alternative: |
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Allow the appellant's application for annulment of the decision of the Board of Appeal of the CPVO of 2 May 2006 (Reference A003/2004) made in the proceedings at first instance.

With regard to point 2, in the alternative:

| — | Refer the case back to the Court of First Instance for fresh judgment. |
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Refer the case back to the Court of First Instance for fresh judgment.

| — | Order the CPVO to pay all the costs arising from the present proceedings, the proceedings before the Court of First Instance and the proceedings before the Board of Appeal. |
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Order the CPVO to pay all the costs arising from the present proceedings, the proceedings before the Court of First Instance and the proceedings before the Board of Appeal.

Pleas in law and main arguments

The object of the present appeal is the judgment of the Court of First Instance by which the appellant's action against the decision of the Board of Appeal of the Community Plant Variety Office concerning the application for Community plant variety rights in respect of the plant variety SUMCOL 01 was dismissed. By that judgment which is subject to the present appeal the Court of First Instance confirmed the decision of the Board of Appeal, according to which the candidate variety was not clearly distinguishable from the reference variety, which was to be regarded as a matter of common knowledge.

The appellant's first ground of appeal refers to a number of procedural errors. In its review of the decision of the Board of Appeal the Court of First Instance made findings the incorrectness of which is immediately apparent from the pleadings. In addition it distorted facts and evidence, imposed excessive demands with regard to the applicant's submissions, drew contradictory conclusions and infringed the appellant's right to be heard. The Court of First Instance for example ignored large parts of the appellant's submissions and numerous offers of evidence made by him, rejecting them by pointing out that the submissions were too general. The Court of First Instance in so doing also overlooked the fact that it was in part objectively impossible for the appellant to be any ‘more specific’ in his submissions. It thus infringed both the appellant's right to be heard and the principles governing the burden of proof and evidence-gathering. Furthermore the Court of First Instance unlawfully expanded the subject-matter of the appeal proceedings by basing the judgment which is subject to the present appeal on reasoning which was not used either by the Office or by the Board of Appeal.

By its second ground of appeal the appellant argues that the Court of First Instance infringed Community law when interpreting Article 7(2) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights by regarding the written description of a variety in the academic literature as proof that it was a matter of common knowledge. In addition, the appellant contends that infringements of Article 62 of the abovementioned Regulation and Article 60 of Regulation (EC) No 1239/95 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office occurred.

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