COMMISSION REGULATION (EC) No 874/2009
of 17 September 2009
establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office
(recast)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (1), and in particular Article 114 thereof,
Whereas:
(1)
Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (2) has been substantially amended several times (3). Since further amendments are to be made, it should be recast in the interests of clarity.
(2)
Regulation (EC) No 2100/94 (the basic Regulation) creates a new Community system of plant variety rights, whereby a plant variety right is valid throughout the Community.
(3)
Such a system should be carried out in an effective manner by the Community Plant Variety Office (the Office), which is assisted by Examination Offices in conducting the technical examination of the plant varieties concerned and which may avail itself of the services of designated national agencies or one of its own sub-offices established for that purpose. In that regard, it is indispensable to define the relationship between the Office and its own sub-offices, the Examination Offices and national agencies.
(4)
A fee for the conduct of the technical examination should be paid by the Office to the Examination Offices on the basis of full recovery of costs incurred. Uniform methods for the calculation of the costs should be established by the Administrative Council.
(5)
Decisions of the Office may be appealed against before its Board of Appeal. Provisions on the procedure of the Board of Appeal should be adopted. Further Boards of Appeal may be established, if necessary, by the Administrative Council.
(6)
Examination reports made under the responsibility of authorities of a Member State or a third country which is a member of the International Union for the Protection of New Varieties of Plants (UPOV) should be considered a sufficient basis for decision.
(7)
The use of electronic means for the filing of applications, objections or appeals and the service of documents by the Office should be permitted. Moreover, the Office should be given the possibility to issue certificates for Community plant variety rights in electronic form. Publication of information regarding Community plant variety rights should also be possible by electronic means. Finally, the electronic storage of files relating to proceedings should be allowed.
(8)
The President of the Office should be empowered to determine all necessary details with respect to the use of electronic means of communication or storage.
(9)
Certain provisions of Articles 23, 29, 34, 35, 36, 42, 45, 46, 49, 50, 58, 81, 85, 87, 88 and 100 of the basic Regulation already explicitly provide that detailed rules shall or may be drawn up for their implementation. Other detailed rules should be drawn up for the same purpose if clarification is required.
(10)
The entry into effect of a transfer of a Community plant variety right or a transfer of an entitlement thereto should be defined in the rules relating to the entries in the Registers.
(11)
The Administrative Council of the Community Plant Variety Office has been consulted.
(12)
The rules provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plant Variety Rights,
HAS ADOPTED THIS REGULATION:
TITLE I
PARTIES TO PROCEEDINGS, OFFICE AND EXAMINATION OFFICES
CHAPTER I
Parties to proceedings
Article 1
Parties to proceedings
1. The following persons may be party to proceedings before the Community Plant Variety Office, hereinafter referred to as ‘the Office’:
(a)
the applicant for a Community plant variety right;
(b)
the objector referred to in Article 59(2) of Regulation (EC) No 2100/94, hereinafter referred to as ‘the basic Regulation’;
(c)
the holder or holders of the Community plant variety right, hereinafter referred to as ‘the holder’;
(d)
any person whose application or request is a prerequisite for a decision to be taken by the Office.
2. The Office may allow participation in the proceedings by any person other than those referred to in paragraph 1 who is directly and individually concerned, upon written request.
3. Any natural or legal person as well as any body qualifying as a legal person under the law applicable to that body shall be considered a person within the meaning of paragraphs 1 and 2.
Article 2
Designation of parties to proceedings
1. A party to proceedings shall be designated by his name and address.
2. Names of natural persons shall be indicated by the person’s family name and given names. Names of legal persons as well as companies or firms shall be indicated by their official designations.
3. Addresses shall contain all the relevant administrative information, including the name of the State in which the party to proceedings is resident or where his seat or establishment is located. Only one address should preferably be indicated for each party to proceedings; where several addresses are indicated, only the address mentioned first shall be taken into account, except where the party to proceedings designates one of the other addresses as an address for service.
The President of the Office shall determine the details concerning the address including any relevant details of other data communication links.
4. Where a party to proceedings is a legal person, it shall also be designated by the name and address of the natural person legally representing the party to proceedings by virtue of the relevant national legislation. The provisions of paragraph 2 shall apply mutatis mutandis to such natural person.
The Office may permit derogations from the provisions of the first sentence of the first subparagraph.
5. Where the Commission or a Member State is party to proceedings, it shall communicate a representative for each proceeding in which it takes part.
Article 3
Languages of parties to proceedings
1. A language, being an official language of the European Union, chosen by a party to proceedings for use in the document first submitted to the Office and signed for the purpose of submission shall be used by the party to proceedings until a final decision is delivered by the Office.
2. If a party to proceedings files a document signed for that purpose by him in any other official language of the European Union than that to be used pursuant to paragraph 1, the document shall be deemed to have been received when the Office holds a translation thereof, provided by other services. The Office may permit derogations from this requirement.
3. If, in oral proceedings, a party uses a language other than the official language of the European Union used by the competent members of the staff of the Office, by other parties to proceedings, or by both, being the language to be used by him, he shall make provision for simultaneous interpretation into that official language. If no such provision is made, oral proceedings may continue in the languages used by the competent members of the staff of the Office and by other parties to the proceedings.
Article 4
Languages in oral proceedings and in the taking of evidence
1. Any party to proceedings and any witness or expert who gives evidence in oral proceedings may use any of the official languages of the European Union Communities.
2. Should the taking of evidence referred to in paragraph 1 be allowed at the request of a party to proceedings, then, should a party to proceedings, a witness or expert be unable to express himself adequately in any of the official languages of the European Union, he may be heard only if the party who made the request makes provision for interpretation into the languages used jointly by all parties to proceedings or, in the absence thereof, by the members of the staff of the Office.
The Office may permit derogations from the first subparagraph.
3. Statements made by the members of the staff of the Office, by parties to proceedings, witnesses or experts in one of the official languages of the European Union during oral proceedings or taking of evidence shall be entered in the minutes in the language used. Statements made in any other language shall be entered in the language used by the members of the staff of the Office.
Article 5
Translation of documents of parties to proceedings
1. If a party to proceedings files a document in a language other than an official language of the European Union, the Office may require a translation of the documents received to be made by the party to the proceedings into the language to be used by that party or by the competent members of the staff of the Office.
2. Where a translation of a document is to be filed or is filed by a party to proceedings, the Office may require the filing, within such time as it may specify, of a certificate that the translation corresponds to the original text.
3. Failure to file the translation referred to in paragraph 1 and the certificate referred to in paragraph 2 shall lead to the document being deemed not to have been received.
CHAPTER II
The Office
Section 1
Committees of the Office
Article 6
Qualification of members of the Committees
1. The Committees referred to in Article 35(2) of the basic Regulation shall, at the discretion of the President of the Office, be composed of technical or legally qualified members, or both.
2. A technical member shall hold a degree, or shall be qualified by recognised experience, in the field of plant science.
3. A legally qualified member shall be a graduate in law or qualified by recognised experience in the field of intellectual property or plant variety registration.
Article 7
Decisions of the Committee
1. A Committee shall, besides taking the decisions referred to in Article 35(2) of the basic Regulation, deal with:
-
the non-suspension of a decision pursuant to Article 67(2) of the basic Regulation,
-
interlocutory revision pursuant to Article 70 of the basic Regulation,
-
the restitutio in integrum pursuant to Article 80 of the basic Regulation, and
-
the award of costs pursuant to Article 85(2) of the basic Regulation and Article 75 of this Regulation.
2. A decision of the Committee shall be taken by a majority of its members.
Article 8
Power of individual members of the Committees
1. The Committee shall designate one of its members as rapporteur on its behalf.
2. The rapporteur may in particular:
(a)
perform the duties under Article 25 and monitor the submission of reports by the Examination Offices, referred to in Articles 13 and 14;
(b)
pursue the procedure within the Office, including the communication of any deficiencies to be remedied by a party to proceedings and the setting of time limits; and
(c)
ensure a close consultation and exchange of information with the parties to the proceedings.
Article 9
Role of the President
The President of the Office shall ensure the consistency of decisions taken under his authority. He shall in particular lay down the conditions under which decisions on objections lodged pursuant to Article 59 of the basic Regulation, and also decisions pursuant to Articles 61, 62, 63 or 66 of that Regulation, are taken.
Article 10
Consultations
Members of the staff of the Office may use, free of charge, the premises of national agencies designated pursuant to Article 30(4) of the basic Regulation, and those of Examination Offices referred to in Articles 13 and 14 of this Regulation, for holding periodical consultation days with parties to proceedings and third persons.
Section 2
Boards of Appeal
Article 11
Boards of Appeal
1. For the purpose of deciding on appeals from the decisions referred to in Article 67 of the basic Regulation, a Board of Appeal is established. If necessary, the Administrative Council may, on a proposal from the Office, establish more Boards of Appeal. In that event, it shall determine the allocation of work between the Boards of Appeal thus established.
2. Each Board of Appeal shall consist of technical and legally qualified members. Article 6(2) and (3) shall apply mutatis mutandis. The chairman shall be a legally qualified member.
3. The examination of an appeal shall be assigned by the chairman of the Board of Appeal to one of its members as rapporteur. Such assignment may include, where appropriate, the taking of evidence.
4. Decisions of the Board of Appeal shall be taken by a majority of its members.
Article 12
Registry attached to a Board of Appeal
1. The President of the Office shall attach a registry to the Board of Appeal; members of the staff of the Office shall be excluded from the registry if they have participated in proceedings relating to the decisions under appeal.
2. The employees of the registry shall in particular be responsible for:
-
drawing up the minutes of oral proceedings and taking evidence pursuant to Article 63 of this Regulation,
-
apportioning costs pursuant to Article 85(5) of the basic Regulation and Article 76 of this Regulation, and
-
confirming any settlement of costs referred to in Article 77 of this Regulation.
CHAPTER III
Examination Offices
Article 13
Designation of an Examination Office referred to in Article 55(1) of the basic Regulation
1. When the Administrative Council entrusts the competent office in a Member State with responsibility for technical examination, the President of the Office shall notify the designation to such office, hereinafter referred to as ‘the Examination Office’. It shall take effect on the day of issue of the notification by the President of the Office. This provision shall apply mutatis mutandis to the cancellation of the designation of an Examination Office, subject to Article 15(6) of this Regulation.
2. A member of the staff of the Examination Office taking part in a technical examination shall not be allowed to make any unauthorised use of, or disclose to any unauthorised person, any facts, documents and information coming to their knowledge in the course of or in connection with the technical examination. They shall continue to be bound by this obligation after the termination of the technical examination concerned, after leaving the service and after the cancellation of the designation of the Examination Office concerned.
3. Paragraph 2 shall apply mutatis mutandis to material of the plant variety which has been made available to the Examination Office by the applicant.
4. The Office shall monitor compliance with paragraphs 2 and 3 and shall decide on the exclusion of or objections raised to members of the staff of Examination Offices in accordance with Article 81(2) of the basic Regulation.
Article 14
Designation of an Examination Office referred to in Article 55(2) of the basic Regulation
1. Where the Office intends to entrust agencies with responsibility for the technical examination of varieties in accordance with Article 55(2) of the basic Regulation, it shall transmit an explanatory statement on the technical suitability of such agencies as an Examination Office to the Administrative Council for consent.
2. Where the Office intends to establish its own sub-office for the technical examination of varieties in accordance with Article 55(2) of the basic Regulation, it shall transmit an explanatory statement on the technical and economic appropriateness of establishing such a sub-office for that purpose and on the siting of such sub-office to the Administrative Council for consent.
3. When the Administrative Council gives its consent to the explanatory statements referred to in paragraphs 1 and 2, the President of the Office may notify such designation to the agencies referred to in paragraph 1, or may publish the designation of a sub-office as referred to in paragraph 2 in the Official Journal of the European Union. It may be cancelled only with the consent of the Administrative Council. Article 13(2) and (3) shall apply mutatis mutandis to the members of the staff of the agency referred to in paragraph 1 of this Article.
Article 15
Procedure for designation
1. The designation of an Examination Office shall be effected by a written agreement between the Office and the Examination Office providing for the performance of the technical examination of plant varieties by the Examination Office and for the payment of the fee referred to in Article 58 of the basic Regulation. In the case of a sub-office referred to in Article 14(2) of this Regulation, the designation shall be by internal rules on working methods issued by the Office.
2. The effect of the written agreement shall be such that acts performed or to be performed by members of the staff of the Examination Office in accordance therewith shall be considered, as far as third parties are concerned, to be acts of the Office.
3. Where the Examination Office intends to avail itself of the services of other technically qualified bodies in accordance with Article 56(3) of the basic Regulation, such bodies shall be named in the written agreement with the Office. Article 81(2) of the basic Regulation and Article 13(2) and (3) of this Regulation shall apply mutatis mutandis to the staff members concerned, who shall sign a written undertaking to observe confidentiality.
4. The Office shall pay the Examination Office a fee for the conduct of the technical examination, on the basis of full recovery of costs incurred. The Administrative Council shall determine uniform methods for calculating the costs and the uniform constituents of the costs, which shall apply to all designated Examination Offices.
5. The Examination Office shall periodically submit to the Office a breakdown of the costs of the technical examination performed and of the maintenance of the necessary reference collections. In the circumstances set out in paragraph 3, a separate auditing report of the bodies shall be submitted to the Office by the Examination Office.
6. Any cancellation of designation of an Examination Office may not take effect prior to the day on which revocation of the written agreement referred to in paragraph 1 takes effect.
TITLE II
SPECIFIC PROCEEDINGS BEFORE THE OFFICE
CHAPTER I
Application for a Community plant variety right
Section 1
Actions of the applicant
Article 16
Filing of the application
1. An application for a Community plant variety right shall be filed at the Office, at the national agencies designated or the sub-offices established pursuant to Article 30(4) of the basic Regulation.
Where the application is filed at the Office it may be filed in paper format or by electronic means. Where it is filed at the national agencies or sub-offices it shall be filed in paper format in duplicate.
2. The information sent to the Office in accordance with Article 49(1)(b) of the basic Regulation shall contain:
-
particulars for identifying the applicant and, where appropriate, his procedural representative,
-
the national agency or sub-office at which the application for a Community plant variety right was filed, and
-
the provisional designation of the variety concerned.
3. The Office shall make available the following forms free of charge:
(a)
an application form and a technical questionnaire, for the purposes of filing an application for a Community plant variety right;
(b)
a form for forwarding the information referred to in paragraph 2, indicating the consequences of any failure of the forwarding.
4. The applicant shall fill in and sign the forms provided for in paragraph 3. Where the application is submitted by electronic means it shall comply with the second subparagraph of Article 57(3) as regards the signature.
Article 17
Receipt of the application
1. Where a national agency designated pursuant to Article 30(4) of the basic Regulation or a sub-office established thereunder, receives an application, it shall forward to the Office, together with the application to be forwarded in accordance with Article 49(2) of the basic Regulation, a confirmation of receipt. The confirmation of receipt shall include the file number of the national agency or sub-office, the number of forwarded documents and the date of receipt at the national agency or sub-office. A copy of the forwarded receipt shall be issued to the applicant by the national agency or sub-office.
2. Where the Office receives an application from the applicant direct or via a sub-office or a national agency, it shall, without prejudice to other provisions, mark the documents making up the application with a file number and the date of receipt at the Office and shall issue a receipt to the applicant. The receipt shall include the file number of the Office, the number of documents received, the date of receipt at the Office and the date of application within the meaning of Article 51 of the basic Regulation. A copy of the receipt shall be issued to the national agency or sub-office via which the Office has received the application.
3. If the Office receives an application via a sub-office or national agency more than one month after its filing by the applicant, the ‘date of application’ within the meaning of Article 51 of the basic Regulation may not be earlier than the date of receipt at the Office, unless the Office establishes on the basis of sufficient documentary evidence that the applicant has forwarded an information to it in accordance with Article 49(1)(b) of the basic Regulation and Article 16(2) of this Regulation.
Article 18
Conditions laid down in Article 50(1) of the basic Regulation
1. If the Office finds that the application does not comply with the conditions laid down in Article 50(1) of the basic Regulation, it shall notify to the applicant the deficiencies it has found, stating that only such date as sufficient information remedying those deficiencies is received shall be treated as the date of application for the purposes of Article 51 of that Regulation.
2. An application complies with the condition laid down in Article 50(1)(i) of the basic Regulation only if date and country of any first disposal within the meaning of Article 10(1) of that Regulation are indicated, or if, in the absence of such disposal a declaration is made that no such disposal has occurred.
3. An application complies with the condition laid down in Article 50(1)(j) of the basic Regulation only if the date and the country given in any earlier application for the variety are, to the best of the applicant’s knowledge, indicated in respect of:
-
an application for a property right in respect of the variety, and
-
an application for official acceptance of the variety for certification and marketing where official acceptance includes an official description of the variety,
in a Member State or a Member of the International Union for the Protection of New Varieties of Plants.
Article 19
Conditions referred to in Article 50(2) of the basic Regulation
1. If the Office finds that the application does not comply with the provisions of paragraphs 2, 3 and 4 of this Article or with Article 16 of this Regulation, it shall apply Article 17(2) hereof, but shall require the applicant to remedy the deficiencies it has found within such time limit as it may specify. Where those deficiencies are not remedied in good time the Office shall without delay refuse the application, pursuant to Article 61(1)(a) of the basic Regulation.
2. The application shall contain the following details:
(a)
the nationality of the applicant, if he is a natural person, and his designation as party to proceedings referred to in Article 2 of this Regulation and, if he is not the breeder, the name and address of the breeder;
(b)
the Latin name of the genus, species or sub-species to which the variety belongs, and the common name;
(c)
the characteristics of the variety which, in the applicant’s opinion, are clearly distinguishable from other varieties, such other varieties being named (if appropriate) as reference varieties for testing;
(d)
breeding, maintenance and propagation of the variety, including information on:
-
the characteristics, the variety denomination or, in the absence thereof, the provisional designation, and the cultivation of any other variety or varieties the material of which has to be used repeatedly for the production of the variety, or
-
characteristics which have been genetically modified, where the variety concerned represents a genetically modified organism within the meaning of Article 2(2) of Directive 2001/18/EC of the European Parliament and of the Council (4);
(e)
the region and the country in which the variety was bred or discovered and developed;
(f)
date and country of any first disposal of varietal constituents or harvested material of the variety, for the purposes of assessing novelty in accordance with Article 10 of the basic Regulation, or a declaration that such disposal has not yet occurred;
(g)
the designation of the authority applied to and the file number of the applications referred to in Article 18(3) of this Regulation;
(h)
existing national plant variety rights or any patent for the variety operating within the Community.
3. The Office may call for any necessary information and documentation, and, if necessary, sufficient drawings or photographs for the conduct of the technical examination within such time limit as it shall specify.
4. Where the variety concerned represents a genetically modified organism within the meaning of Article 2(2) of Directive 2001/18/EC, the Office may require the applicant to transmit a copy of the written attestation of the responsible authorities stating that a technical examination of the variety under Articles 55 and 56 of the basic Regulation does not pose risks to the environment according to the norms of that Directive.
Article 20
Claiming priority
If the applicant claims a right of priority for an application within the meaning of Article 52(2) of the basic Regulation, which is not the earliest of those to be indicated pursuant to the first indent of Article 18(3) of this Regulation, the Office shall state that a priority date can only be given to such earlier application. Where the Office has issued a receipt including the date of filing of an application which is not the earliest of those to be indicated, the priority date notified shall be considered void.
Article 21
Entitlement to a Community plant variety right during proceedings
1. When the commencement of an action against the applicant in respect of a claim referred to in Article 98(4) of the basic Regulation has been entered in the Register of Applications for Community plant variety rights, the Office may stay the application proceedings. The Office may set a date on which it intends to continue the proceedings pending before it.
2. When a final decision in, or any other termination of, the action referred to in paragraph 1 has been entered in the Register of Applications for Community plant variety rights, the Office shall resume proceedings. It may resume them at an earlier date, but not prior to the date already set pursuant to paragraph 1.
3. Where entitlement to a Community plant variety right is validly transferred to another person for the purposes of the Office, that person may pursue the application of the first applicant as if it were his own, provided that he gives notice to this effect to the Office within one month of the entry of final judgment in the Register of Applications for Community plant variety rights. Fees due pursuant to Article 83 of the basic Regulation and already paid by the first applicant shall be deemed to have been paid by the subsequent applicant.
Section 2
Conduct of the technical examination
Article 22
Decision on test guidelines
1. Upon proposal of the President of the Office, the Administrative Council shall take a decision as to test guidelines. The date of the decision and the species concerned by it shall be published in the Official Gazette referred to in Article 87.
2. In the absence of a decision of the Administrative Council as to test guidelines, the President of the Office may take a provisional decision thereon. The provisional decision shall lapse on the date of the decision of the Administrative Council. Where the provisional decision of the President of the Office deviates from the decision of the Administrative Council, a technical examination started prior to the decision of the Administrative Council shall not be affected The Administrative Council may decide otherwise, if circumstances so dictate.
Article 23
Powers vested in the President of the Office
1. Where the Administrative Council takes a decision on test guidelines, it shall include a power whereby the President of the Office may insert additional characteristics and their expressions in respect of a variety.
2. Where the President of the Office makes use of the power referred to in paragraph 1, Article 22(2) shall apply mutatis mutandis.
Article 24
Notification by the Office of the Examination Office
In accordance with Article 55(3) of the basic Regulation, the Office shall transmit copies of the following documents relating to the variety to the Examination Office:
(a)
the application form, the technical questionnaire and each additional document submitted by the applicant containing information needed for the conduct of the technical examination;
(b)
the forms filled out by the applicant pursuant to Article 86 of this Regulation;
(c)
documents relating to an objection based on the contention that the conditions laid down in Articles 7, 8 and 9 of the basic Regulation have not been met.
Article 25
Cooperation between the Office and the Examination Office
The staff of the Examination Office responsible for the technical examination and the rapporteur designated in accordance with Article 8(1) shall cooperate in all phases of a technical examination. Cooperation shall cover at least the following aspects:
(a)
the monitoring of the conduct of the technical examination, including the inspection of the locations of the test plots and the methods used for the tests by the rapporteur;
(b)
without prejudice to other investigations by the Office, information from the Examination Office about details of any previous disposal of the variety; and
(c)
the submission by the Examination Office to the Office of interim reports on each growing period.
Article 26
Form of the examination reports
1. The examination report referred to in Article 57 of the basic Regulation shall be signed by the responsible member of the staff of the Examination Office and shall expressly acknowledge the exclusive rights of disposal of the Office under Article 57(4) of that Regulation.
2. The provisions of paragraph 1 shall apply mutatis mutandis to any interim reports to be submitted to the Office. The Examination Office shall issue a copy of each interim report direct to the applicant.
Article 27
Other examination reports
1. An examination report on the results of any technical examination which has been carried out or is in the process of being carried out for official purposes in a Member State by one of the offices responsible for the species concerned pursuant to Article 55(1) of the basic Regulation may be considered by the Office to constitute a sufficient basis for decision, provided that:
(a)
the material submitted for the technical examination has complied, in quantity and quality, with any standards that may have been laid down pursuant to Article 55(4) of the basic Regulation;
(b)
the technical examination has been carried out in a manner consistent with the designations by the Administrative Council pursuant to Article 55(1) of the basic Regulation, and has been conducted in accordance with the test guidelines issued, on general instructions given, pursuant to Article 56(2) of that Regulation and Articles 22 and 23 of this Regulation;
(c)
the Office has had the opportunity to monitor the conduct of the technical examination concerned; and
(d)
where the final report is not immediately available, the interim reports on each growing period are submitted to the Office prior to the examination report.
2. Where the Office does not consider the examination report referred to in paragraph 1 to constitute a sufficient basis for a decision, it may follow the procedure laid down in Article 55 of the basic Regulation, after consulting the applicant and the Examination Office concerned.
3. The Office and each competent national plant variety office in a Member State shall give administrative assistance to the other by making available, upon request, any examination reports on a variety, for the purpose of assessing distinctiveness, uniformity and stability of that variety. A specific amount shall be charged by the Office or the competent national plant variety office for the submission of such a report, such amount being agreed by the offices concerned.
4. An examination report on the results of a technical examination which has been carried out or is in the process of being carried out for official purposes in a third country which is Member of the International Union for the Protection of New Varieties of Plants may be considered by the Office to constitute a sufficient basis for decision, provided the technical examination complies with the conditions laid down in a written agreement between the Office and the competent authority of such third country. Such conditions shall at least include:
(a)
those related to the material, as referred to in point (a) of paragraph 1;
(b)
that the technical examination has been conducted in accordance with the test guidelines issued, or general instructions given, pursuant to Article 56(2) of the basic Regulation;
(c)
that the Office has had the opportunity to assess the suitability of facilities for carrying out a technical examination for the species concerned in that third country and to monitor the conduct of the technical examination concerned; and
(d)
those related to the availability of reports, as laid down in point (d) of paragraph 1.
Section 3
Variety denomination
Article 28
Proposal for a variety denomination
The proposal for a variety denomination shall be signed and shall be filed at the Office, or, if the proposal accompanies the application for a Community plant variety right filed at the national agency designated or the sub-office established pursuant to Article 30(4) of the basic Regulation, in duplicate.
The Office shall make available, free of charge, a form for the purposes of proposing a variety denomination.
Where the proposal for a variety denomination is submitted by electronic means it shall comply with the second subparagraph of Article 57(3) of this Regulation as regards the signature.
Article 29
Examination of a proposal
1. Where the proposal does not accompany the application for a Community plant variety right or where a proposed variety denomination cannot be approved by the Office, the Office shall without delay communicate this to the applicant, shall require him to submit a proposal or a new proposal and shall indicate the consequences of failure to do so.
2. Where the Office establishes at the time of receipt of the results of the technical examination pursuant to Article 57(1) of the basic Regulation that the applicant has not submitted any proposal for a variety denomination, it shall without delay refuse the application for a Community plant variety right in accordance with Article 61(1)(c) of that Regulation.
Article 30
Guidelines for variety denomination
The Administrative Council shall adopt guidelines establishing uniform and definitive criteria for determining impediments to the generic designation of a variety denomination referred to in Article 63(3) and (4) of the basic Regulation.
CHAPTER II
Objection
Article 31
Filing of objections
1. Objections under Article 59 of the basic Regulation shall contain:
(a)
the name of the applicant and the file number of the application to which the objection is lodged;
(b)
the designation of the objector as a party to proceedings as set out in Article 2 of this Regulation;
(c)
if the objector has appointed a procedural representative, his name and address;
(d)
a statement on the contention referred to in Article 59(3) of the basic Regulation on which the objection is based, and on particulars, items of evidence and arguments presented in support of the objection.
2. If several objections in respect of the same application for a Community plant variety right are filed, the Office may deal with those objections in one set of proceedings.
Article 32
Rejection of objections
1. If the Office finds that the objection does not comply with Article 59(1) and (3) of the basic Regulation or Article 31(1)(d) of this Regulation or that it does not provide sufficient identification of the application against which objection is lodged, it shall reject the objection as inadmissible unless such deficiencies have been remedied within such time limit as it may specify.
2. If the Office notes that the objection does not comply with other provisions of the basic Regulation or of this Regulation, it shall reject the objection as inadmissible unless such deficiencies have been remedied prior to the expiry of the objection periods.
CHAPTER III
Maintenance of Community plant variety rights
Article 33
Obligations of the holder under Article 64(3) of the basic Regulation
1. The holder shall permit inspection of material of the variety concerned and of the location where the identity of the variety is preserved, in order to furnish the information necessary for assessing the continuance of the variety in its unaltered state, pursuant to Article 64(3) of the basic Regulation.
2. The holder shall be required to keep written records in order to facilitate verification of appropriate measures referred to in Article 64(3) of the basic Regulation.
Article 34
Technical verification of the protected variety
Without prejudice to Article 87(4) of the basic Regulation, a technical verification of the protected variety shall be conducted in accordance with the test guidelines duly applied when the Community plant variety right was granted in respect of that variety. Articles 22 and 24 to 27 of this Regulation shall apply mutatis mutandis to the Office, the Examination Office and to the holder.
Article 35
Other material to be used for a technical verification
When the holder has submitted material of the variety in accordance with Article 64(3) of the basic Regulation, the Examination Office may, with the consent of the Office, verify the submitted material by inspecting other material which has been taken from holdings where material is produced by the holder, or with his consent, or taken from material being marketed by him, or with his consent, or taken by official bodies in a Member State by virtue of their powers.
Article 36
Amendments of the variety denominations
1. Where the variety denomination has to be amended in accordance with Article 66 of the basic Regulation, the Office shall communicate the grounds thereof to the holder, shall set up a time limit within which the holder must submit a suitable proposal for an amended variety denomination, and shall state that, should he fail to do so, the Community plant variety right may be cancelled pursuant to Article 21 of that Regulation.
2. Where the proposal for an amended variety denomination cannot be approved by the Office, the Office shall without delay inform the holder, shall again set a time limit within which the holder must submit a suitable proposal, and shall state that, should he fail to comply, the Community plant variety right may be cancelled pursuant to Article 21 of the basic Regulation.
3. Articles 31 and 32 of this Regulation shall apply mutatis mutandis to an objection lodged pursuant to Article 66(3) of the basic Regulation.
4. Where the proposal for an amendment of a variety denomination is submitted by electronic means it shall comply with the second subparagraph of Article 57(3) as regards the signature.
CHAPTER IV
Community licences to be granted by the Office
Section 1
Compulsory licences pursuant to Article 29 of the basic Regulation
Article 37
Applications for a compulsory licence
1. The application for a compulsory licence pursuant to Article 29(1), (2) and (5) of the basic Regulation shall contain:
(a)
the designation of the applicant and the opposing holder of the variety concerned as parties to proceedings;
(b)
the variety denomination and the plant species of the variety or varieties concerned;
(c)
a proposal for the type of acts to be covered by the compulsory licence;
(d)
a statement setting out the public interest concerned, including details of facts, items of evidence and arguments presented in support of the public interest claimed;
(e)
in the case of an application referred to in Article 29(2) of the basic Regulation, a proposal for the category of persons to which the compulsory licence shall be granted, including, as the case may be, the specific requirements related to that category of persons;
(f)
a proposal for an equitable remuneration and the basis for calculating the remuneration.
2. The application for a compulsory licence referred to in Article 29(5a) of the basic Regulation shall contain:
(a)
the designation of the applicant holding a patent right and the opposing holder of the variety concerned as parties to proceedings;
(b)
the variety denomination and the plant species of the variety or varieties concerned;
(c)
a certified copy of the patent certificate showing the number and claims of the patent for a biotechnological invention and the granting authority of the patent;
(d)
a proposal for the type of acts to be covered by the compulsory licence;
(e)
a proposal for an equitable remuneration and the basis for calculating the remuneration;
(f)
a statement setting out why the biotechnological invention constitutes significant technical progress of considerable economic interest compared with the protected variety, including details of facts, items of evidence and arguments in support of the claim;
(g)
a proposal for the territorial scope of the licence, which may not exceed the territorial scope of the patent referred to in point (c).
3. The application for a cross-licence referred to in the second subparagraph of Article 29(5a) of the basic Regulation shall contain:
(a)
the designation of the applicant holding a patent right and the opposing holder of the variety concerned as parties to proceedings;
(b)
the variety denomination and the plant species of the variety or varieties concerned;
(c)
a certified copy of the patent certificate showing the number and claims of the patent for a biotechnological invention and the granting authority of the patent;
(d)
an official document showing that a compulsory licence for a patented biotechnological invention has been granted to the holder of the plant variety right;
(e)
a proposal for the type of acts to be covered by the cross-licence;
(f)
a proposal for an equitable remuneration and the basis for calculating the remuneration;
(g)
a proposal for the territorial scope of the cross-licence, which may not exceed the territorial scope of the patent referred to in point (c).
4. The application for a compulsory licence shall be accompanied by documents evidencing that the applicant has applied unsuccessfully to obtain a contractual licence from the holder of the plant variety right. Should the Commission or a Member State be the applicant for a compulsory licence pursuant to Article 29(2) of the basic Regulation, the Office may waive this condition in the case of force majeure.
5. A request for a contractual licence shall be considered unsuccessful within the meaning of paragraph 4 if:
(a)
the opposing holder has not given a final reply to the person seeking such right within a reasonable period; or
(b)
the opposing holder has refused to grant a contractual licence to the person seeking it; or
(c)
the opposing holder has offered a licence to the person seeking it, on obviously unreasonable fundamental terms including those relating to the royalty to be paid, or on terms which, seen as a whole, are obviously unreasonable.
Article 38
Examination of the application for a compulsory licence
1. Oral proceedings and the taking of evidence shall in principle be held together in one hearing.
2. Requests for further hearings shall be inadmissible except for those requests based on circumstances which have undergone change during or after the hearing.
3. Before taking a decision, the Office shall invite the parties concerned to come to an amicable settlement on a contractual licence. If appropriate, the Office shall make a proposal for such an amicable settlement.
Article 39
Tenure of a Community plant variety right during the proceedings
1. If the commencement of an action in respect of a claim referred to in Article 98(1) of the basic Regulation against the holder has been entered in the Register of Community Plant Variety Rights, the Office may suspend the proceedings on the grant of a compulsory licence. It shall not resume them prior to the entry in the same Register of the final judgment upon, or any other termination of, such action.
2. If a transfer of the Community plant variety right is binding on the Office, the new holder shall enter the proceedings as a party thereto, upon request of the applicant, if that applicant has unsuccessfully requested the new holder to grant him a licence within two months of receipt of communication from the Office that the name of the new holder has been entered in the Register of Community Plant Variety Rights. A request from the applicant shall be accompanied by sufficient documentary evidence of his vain attempt and, if appropriate, of the conduct of the new holder.
3. In the case of an application referred to in Article 29(2) of the basic Regulation, the new holder shall enter the proceedings as a party thereto. Paragraph 1 of this Article shall not apply.
Article 40
Contents of the decision on the application
The written decision shall be signed by the President of the Office. The decision shall contain:
(a)
a statement that the decision is delivered by the Office;
(b)
the date when the decision was taken;
(c)
the names of the members of the committee having taken part in the proceedings;
(d)
the names of the parties to the proceedings and of their procedural representatives;
(e)
the reference to the opinion of the Administrative Council;
(f)
a statement of the issues to be decided;
(g)
a summary of the facts;
(h)
the grounds on which the decision is based;
(i)
the order of the Office; if need be, the order shall include the stipulated acts covered by the compulsory licence, the specific conditions pertaining thereto and the category of persons, including where appropriate the specific requirements relating to that category.
Article 41
Grant of a compulsory licence
1. The decision to grant a compulsory licence pursuant to Article 29(1), (2) and (5) of the basic Regulation shall contain a statement setting out the public interest involved.
2. The following grounds may in particular constitute a public interest:
(a)
the protection of life or health of humans, animals or plants;
(b)
the need to supply the market with material offering specific features;
(c)
the need to maintain the incentive for continued breeding of improved varieties.
3. The decision to grant a compulsory licence pursuant to Article 29(5a) of the basic Regulation shall contain a statement setting out the reasons why the invention constitutes significant technical progress of considerable economic interest. The following grounds may in particular constitute reasons why the invention constitutes significant technical progress of considerable economic interest compared to the protected plant variety:
(a)
improvement of cultural techniques;
(b)
improvement of the environment;
(c)
improvement of techniques to facilitate the use of genetic biodiversity;
(d)
improvement of quality;
(e)
improvement of yield;
(f)
improvement of resistance;
(g)
improvement of adaptation to specific climatological and/or environmental conditions.
4. The compulsory licence shall be non-exclusive.
5. The compulsory licence may not be transferred otherwise than together with that part of an enterprise which makes use of the compulsory licence, or, in the circumstances set out in Article 29(5) of the basic Regulation, together with the assignment of the rights of an essentially derived variety.
Article 42
Conditions pertaining to the person to whom a compulsory licence is granted
1. Without prejudice to the other conditions referred to in Article 29(3) of the basic Regulation, the person to whom the compulsory licence is granted shall have the appropriate financial and technical capacity to make use of the compulsory licence.
2. Compliance with the conditions pertaining to the compulsory licence and laid down in the decision thereon shall be considered a ‘circumstance’ within the meaning of Article 29(4) of the basic Regulation.
3. The Office shall provide that the person to whom a compulsory licence is granted may not bring a legal action for infringement of a Community plant variety right unless the holder has refused or neglected to do so within two months after being so requested.
Article 43
Category of persons satisfying specific requirements pursuant to Article 29(2) of the basic Regulation
1. Any person intending to make use of a compulsory licence who comes under the category of persons satisfying specific requirements referred to in Article 29(2) of the basic Regulation shall declare his intention to the Office and to the holder by registered letter with advice of delivery. The declaration shall include:
(a)
the name and address of that person as laid down for parties to proceedings pursuant to Article 2 of this Regulation;
(b)
a statement on the facts meeting the specific requirements;
(c)
a statement setting out the acts to be effected; and
(d)
an assurance that that person has the appropriate financial resources as well as information about his technical capacity, to make use of the compulsory licence.
2. Upon request, the Office shall enter a person in the Register of Community Plant Variety Rights if such person has fulfilled the conditions relating to the declaration referred to in paragraph 1. Such person shall not be entitled to make use of the compulsory licence prior to the entry. The entry shall be communicated to that person and the holder.
3. Article 42(3) shall apply mutatis mutandis to a person entered in the Register of Community Plant Variety Rights pursuant to paragraph 2 of this Article. Any judgment, or other termination, of the legal action in respect of the act of infringement shall apply to the other persons entered or to be entered.
4. The entry referred to in paragraph 2 may be deleted on the sole ground that the specific requirements laid down in the decision on the grant of a compulsory licence or the financial and technical capacities established pursuant to paragraph 2 have undergone change more than one year after the grant of the compulsory licence and within any time limit stipulated in that grant. The deletion of the entry shall be communicated to the person entered and the holder.
Section 2
Exploitation rights pursuant to Article 100(2) of the basic Regulation
Article 44
Exploitation rights pursuant to Article 100(2) of the basic Regulation
1. A request for a contractual non-exclusive exploitation right from a new holder, as referred to in Article 100(2) of the basic Regulation, shall be made, in the case of the former holder within two months, or in the case of a person having enjoyed an exploitation right within four months, of receipt of notification from the Office that the name of the new holder has been entered in the Register of Community Plant Variety Rights.
2. An application for an exploitation right to be granted pursuant to Article 100(2) of the basic Regulation shall be accompanied by documents supporting the unsuccessful request referred to in paragraph 1 of this Article. The provisions of Article 37(1)(a), (b), (c) and (5), Article 38, Article 39(3), Article 40 except letter (f), Article 41(3) and (4) and Article 42 of this Regulation shall apply mutatis mutandis.
TITLE III
PROCEEDINGS BEFORE THE BOARD OF APPEAL
Article 45
Contents of the notice of appeal
The notice of appeal shall contain:
(a)
the designation of the appellant as a party to appeal proceedings in accordance with Article 2;
(b)
the file number of the decision against which the appeal is lodged and a statement as to the extent to which amendment or cancellation of the decision is sought.
Article 46
Receipt of the notice of appeal
Where the Office receives a notice of appeal, it shall mark it with a file number of the appeal proceedings and the date of receipt at the Office and shall notify the appellant of the time limit for setting out the grounds of the appeal; any omission of such notice may not be pleaded.
Article 47
Participation as a party to the appeal proceedings
1. The Office shall promptly transmit a copy of the notice of appeal marked with the file number and the date of its receipt to the parties to proceedings having participated in the proceedings before the Office.
2. The parties to proceedings referred to in paragraph 1 may intervene as parties to the appeal proceedings within two months of transmission of a copy of the notice of appeal.
Article 48
Role of the Office
1. The body of the Office referred to in Article 70(1) of the basic Regulation and the chairman of the Board of Appeal shall ensure by internal preparatory measures that the Board of Appeal can examine the case immediately after its remittal; the chairman shall in particular select the two other members in accordance with Article 46(2) of that Regulation and shall designate a rapporteur, prior to the remittal of the case.
2. Prior to the remittal of the case, the body of the Office referred to in Article 70(1) of the basic Regulation shall promptly transmit a copy of the documents received by a party to the appeal proceedings to the other parties to the appeal proceedings.
3. The President of the Office shall provide for the publication of the information referred to in Article 89, prior to the remittal of the case.
Article 49
Rejection of the appeal as inadmissible
1. If the appeal does not comply with the provisions of the basic Regulation and in particular Articles 67, 68 and 69 thereof or those of this Regulation and in particular Article 45 thereof, the Board of Appeal shall so inform the appellant and shall require him to remedy the deficiencies found, if possible, within such period as it may specify. If the appeal is not rectified in good time, the Board of Appeal shall reject it as inadmissible.
2. Where an appeal is lodged against a decision of the Office against which an action under Article 74 of the basic Regulation is likewise lodged, the Board of Appeal shall forthwith submit the appeal as an action to the Court of Justice of the European Communities, with the consent of the appellant; if the appellant does not consent, it shall reject the appeal as inadmissible. In the case of the submission of an appeal to the Court of Justice, such an appeal shall be deemed to have been lodged with the Court of Justice as at the date of receipt at the Office under Article 46 of this Regulation.
Article 50
Oral proceedings
1. After the remittal of the case, the chairman of the Board of Appeal shall, without delay, summon the parties to the appeal proceedings to oral proceedings as provided for in Article 77 of the basic Regulation and shall draw their attention to the contents of Article 59(2) of this Regulation.
2. The oral proceedings and the taking of evidence shall in principle be held in one hearing.
3. Requests for further hearings shall be inadmissible except for requests based on circumstances which have undergone change during or after the hearing.
Article 51
Examination of appeals
Unless otherwise provided, the provisions relating to proceedings before the Office shall apply to appeal proceedings mutatis mutandis; parties to proceedings shall in that regard be treated as parties to appeal proceedings.
Article 52
Decision on the appeal
1. Within three months after closure of the oral proceedings, the decision on the appeal shall be forwarded in writing, by any means provided for in Article 64(3), to the parties to the appeal proceedings.
2. The decision shall be signed by the chairman of the Board of Appeal and by the rapporteur designated pursuant to Article 48(1). The decision shall contain:
(a)
a statement that the decision is delivered by the Board of Appeal;
(b)
the date when the decision was taken;
(c)
the names of the chairman and of the other members of the Board of Appeal having taken part in the appeal proceedings;
(d)
the names of the parties to the appeal proceedings and their procedural representatives;
(e)
a statement of the issues to be decided;
(f)
a summary of the facts;
(g)
the grounds on which the decision is based;
(h)
the order of the Board of Appeal, including, where necessary, a decision as to the award of costs or the refund of fees.
3. The written decision of the Board of Appeal shall be accompanied by a statement that further appeal is possible, together with the time limit for lodging such further appeal. The parties to the appeal proceedings may not plead the omission of that statement.
TITLE IV
GENERAL PROVISIONS RELATING TO PROCEEDINGS
CHAPTER I
Decisions, communications and documents
Article 53
Decisions
1. Any decision of the Office is to be signed by and to state the name of the member of staff duly authorised by the President of the Office in accordance with Article 35 of the basic Regulation.
2. Where oral proceedings are held before the Office, the decisions may be given orally. Subsequently, the decision in writing shall be served on the parties to proceedings in accordance with Article 64.
3. Decisions of the Office which are open to appeal under Article 67 of the basic Regulation or to direct action under Article 74 thereof shall be accompanied by a statement of that appeal or direct action if possible, together with the time limits provided for lodging such appeal or direct action. The parties to proceedings may not plead the omission of that statement.
4. Linguistic errors, errors of transcription and patent mistakes in decisions of the Office shall be corrected.
Article 54
Certificate for a Community plant variety right
1. Where the Office grants a Community plant variety right, it shall issue, together with the decision thereon, a certificate for the Community plant variety right as evidence of the grant.
2. The Office shall issue the certificate for the Community plant variety right in whichever official language or languages of the European Union is requested by the holder.
3. On request, the Office may issue a copy to the person entitled if it establishes that the original certificate has been lost or destroyed.
Article 55
Communications
Unless otherwise provided, any communication by the Office or an Examination Office shall include the name of the competent member of the staff.
Article 56
Right of audience
1. If the Office finds that a decision may not be adopted in the terms sought, it shall communicate the deficiencies noted to the party to the proceedings and shall require him to remedy those deficiencies within such time limit as it may specify. If the deficiencies noted and communicated are not remedied in good time, the Office shall proceed to take its decision.
2. If the Office receives observations from a party to proceedings, it shall communicate those observations to the other parties to the proceedings and shall require them, if it considers it necessary, to reply within such time limit as it may specify. If a reply is not received in good time, the Office shall disregard any document received later.
Article 57
Documents filed by parties to proceedings
1. Any documents filed by a party to proceedings shall be submitted by post, personal delivery or electronic means.
The details concerning electronic submissions shall be determined by the President of the Office.
2. The date of receipt of any document filed by parties to proceedings shall be deemed to be the date on which a document is in fact received on the premises or in the case of a document filed by electronic means, when the document is received electronically by the Office.
3. With the exception of annexed documents, any documents filed by parties to proceedings must be signed by them or their procedural representative.
Where a document is submitted to the Office by electronic means, it shall contain an electronic signature.
4. If a document has not duly been signed, or where a document received is incomplete or illegible, or where the Office has doubts as to the accuracy of the document, the Office shall inform the sender accordingly and shall invite him to submit the original of the document signed in accordance with paragraph 3, or to retransmit a copy of the original, within a time limit of one month.
Where the request is complied with within the period specified, the date of receipt of the signed document or of the retransmission shall be deemed to be the date of the receipt of the first document. Where the request is not complied with within the period specified, the document shall be deemed not to have been received.
5. Such document as must be communicated to other parties to proceedings as well as to the Examination Office concerned, or documents relating to two or more applications for a Community plant variety right or an exploitation right, shall be filed in a sufficient number of copies. Missing copies shall be provided at the expense of the party to the proceedings.
The first subparagraph shall not apply to documents submitted by electronic means.
Article 58
Documentary evidence
1. Evidence of final judgments and decisions, other than those of the Office, or other documentary evidence to be submitted by parties to proceedings, may be furnished by submitting an uncertified copy.
2. Where the Office has doubts as to the authenticity of the evidence referred to in paragraph 1, it may require submission of the original or a certified copy.
CHAPTER II
Oral proceedings and taking of evidence
Article 59
Summons to oral proceedings
1. The parties to proceedings shall be summoned to oral proceedings provided for in Article 77 of the basic Regulation and their attention shall be drawn to paragraph 2 hereof. At least one month’s notice of the summons dispatched to the parties to proceedings shall be given unless the parties to proceedings and the Office agree on a shorter period.
2. If a party to proceedings who has duly been summoned to oral proceedings before the Office does not appear as summoned, the proceedings may continue without him.
Article 60
Taking of evidence by the Office
1. Where the Office considers it necessary to hear the oral evidence of parties to proceedings or of witnesses or experts, or to carry out an inspection, it shall take a decision to that effect, stating the means by which it intends to obtain evidence, the relevant facts to be proved and the date, time and place of hearing or inspection. If oral evidence from witnesses and experts is requested by a party to proceedings, the decision of the Office shall state the period of time within which the party to proceedings filing the request must make known to the Office the names and addresses of the witnesses and experts whom the party to proceedings wishes to be heard.
2. At least one month’s notice of a summons dispatched to a party to proceedings, witness or expert to give evidence shall be given unless the Office and they agree to a shorter period. The summons shall contain:
(a)
an extract from the decision referred to in paragraph 1, indicating in particular the date, time and place of the investigation ordered and setting out the facts regarding which parties to proceedings, witnesses and experts are to be heard;
(b)
the names of the parties to proceedings and particulars of the rights which the witnesses or experts may invoke under the provisions of Article 62(2), (3) and (4);
(c)
a statement that the party to proceedings, witness or expert may ask to be heard by the competent judicial or other authority in his country of domicile and a request that he inform the Office within a time limit to be fixed by the Office whether he is prepared to appear before it.
3. Before a party to proceedings, a witness or an expert may be heard, he shall be informed that the Office may request the competent judicial or other authority in his country of domicile to re-examine his evidence on oath or in some other binding form.
4. The parties to proceedings shall be informed of the hearing of a witness or expert before a competent judicial or other authority. They shall have the right to be present and to put questions to the testifying parties to proceedings, witnesses and experts, either through the intermediary of the authority or direct.
Article 61
Commissioning of experts
1. The Office shall decide in what form the report to be made by an expert whom it appoints shall be submitted.
2. The mandate of the expert shall contain:
(a)
a precise description of his task;
(b)
the time limit laid down for the submission of the report;
(c)
the names of the parties to the proceedings;
(d)
particulars of the rights which he may invoke under Article 62(2), (3) and (4).
3. For the purposes of the expert’s report, the Office may require the Examination Office having conducted the technical examination of the variety concerned to make available material in accordance with instructions given. If necessary, the Office may also require material from parties to proceedings or third persons.
4. The parties to proceedings shall be provided with a copy and, where appropriate, a translation of any written report.
5. The parties to proceedings may object to an expert. Articles 48(3) and 81(2) of the basic Regulation shall apply mutatis mutandis.
6. Article 13(2) and (3) shall apply mutatis mutandis to the expert appointed by the Office. When appointing the expert, the Office shall inform him of the requirement of confidentiality.
Article 62
Costs of taking evidence
1. The taking of evidence may be made conditional upon deposit with the Office, by the party to proceedings who requested that such evidence be taken, of a sum to be quantified by the Office by reference to an estimate of the costs.
2. Witnesses and experts who are summoned by and who appear before the Office shall be entitled to appropriate reimbursement of expenses for travel and subsistence. An advance may be granted to them.
3. Witnesses entitled to reimbursement under paragraph 2 shall also be entitled to appropriate compensation for loss of earnings, and experts unless members of the staff of the Examination Offices, to fees for their work. Those payments shall be made to the witnesses after the taking of evidence and to the experts after they have fulfilled their duties or tasks.
4. Payments of amounts due pursuant to paragraphs 2 and 3 and in accordance with the details and scales laid down in Annex I shall be made by the Office.
Article 63
Minutes of oral proceedings and of taking of evidence
1. Minutes of oral proceedings and of the taking of evidence shall record the essentials of the oral proceedings or of the taking of evidence, the relevant statements made by the parties to proceedings, the testimony of the parties to proceedings, witnesses or experts and the result of any inspection.
2. The minutes of the testimony of a witness, expert or party to proceedings shall be read out or submitted to him so that he may examine them. It shall be noted in the minutes that this formality has been carried out and that the person who gave the testimony approved the minutes. Where his approval is not given, his objections shall be noted.
3. The minutes shall be signed by the employee who drew them up and by the employee who conducted the oral proceedings or the taking of evidence.
4. The parties to proceedings shall be provided with a copy and, where appropriate, a translation of the minutes.
CHAPTER III
Service
Article 64
General provisions on service
1. In proceedings before the Office, any service of documents to be made by the Office on a party to proceedings shall take the form of the original document, of an uncertified copy thereof or a computer print-out. Documents emanating from other parties to proceedings may be served in the form of uncertified copies.
2. If a procedural representative has been appointed by one or more parties to proceedings, service shall be made on him in accordance with the provisions of paragraph 1.
3. Service shall be made:
(a)
by post in accordance with Article 65;
(b)
by delivery by hand in accordance with Article 66;
(c)
by public notice in accordance with Article 67; or
(d)
by electronic means or any other technical means in accordance with the second subparagraph.
The President of the Office shall determine the details concerning service by electronic means.
4. Documents or copies thereof containing actions for which service is provided for in Article 79 of the basic Regulation shall be served by registered letter with advice of delivery served by postal means; it can also be served by electronic means to be determined by the President of the Office.
Article 65
Service by post
1. Service on addressees not having their domicile or their seat or establishment within the Community and who have not appointed a procedural representative in accordance with Article 82 of the basic Regulation shall be effected by posting the documents to be served by ordinary letter to the addressee’s last address known to the Office. Service shall be deemed to have been effected by posting even if the letter is returned as undeliverable.
2. Where service is effected by registered letter, whether or not with advice of delivery, this shall be deemed to have been delivered to the addressee on the tenth day following its posting, unless the letter has failed to reach the addressee or has reached him on a later day; in the event of any dispute, it shall be for the Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be.
3. Service by registered letter, whether or not with advice of delivery, shall be deemed to have been effected even if the addressee refuses to accept the letter or to acknowledge receipt thereof.
4. Where service by post is not covered by paragraphs 1, 2 and 3, the law of the State on the territory of which the service is made shall apply.
Article 66
Service by hand delivery
On the premises of the Office, service of a document may be effected by delivery by hand to the addressee, who shall on delivery acknowledge its receipt. Service shall be deemed to have taken place even if the addressee refuses to accept the document or to acknowledge receipt thereof.
Article 67
Public notice
If the address of the addressee cannot be established, or if service in accordance with Article 64(4) has proved to be impossible even after a second attempt by the Office, service shall be effected by public notice, to be issued in the periodical publication referred to in Article 89 of the basic Regulation. The President of the Office shall determine details as to the issue of a public notice.
Article 68
Irregularities in service
If the Office is unable to prove that a document which has reached the addressee has been duly served, or if provisions relating to its service have not been observed, the document shall be deemed to have been served on the date established by the Office as the date of receipt.
CHAPTER IV
Time limits and interruption of proceedings
Article 69
Computation of time limits
1. Time limits shall be laid down in terms of full years, months, weeks or days.
2. Time limits shall run from the day following the day on which the relevant event occurred, the event being either an action or the expiry of another time limit. Unless otherwise provided, the event considered shall be the receipt of the document served, where the action consists in service.
3. Notwithstanding the provisions of paragraph 2, the time limits shall run from the 15th day following the day of publication of a relevant action, where the action is either the public notice referred to in Article 67, a decision of the Office unless served to the relevant person, or any action of a party to proceedings to be published.
4. When a time limit is expressed as one year or a certain number of years, it shall expire in the relevant subsequent year in the month having the same name and on the day having the same number as the month and the day on which the said event occurred; where the relevant subsequent month has no day bearing the same number the time limit shall expire on the last day of that month.
5. When a time limit is expressed as one month or a certain number of months, it shall expire in the relevant subsequent month on the day which has the same number as the day on which the said event occurred; where the relevant subsequent month has no day bearing the same number the period shall expire on the last day of that month.
6. Where a time limit is expressed as one week or a certain number of weeks, it shall expire in the relevant subsequent week on the day having the same name as the day on which the said event occurred.
Article 70
Duration of time limits
Where either the basic Regulation or this Regulation specifies a time limit to be determined by the Office, such a time limit shall be not less than one month and not more than three months. In certain special cases, the time limit may be extended by up to six months upon a request presented before the expiry of such time limit.
Article 71
Extension of time limits
1. If a time limit expires on a day on which the Office is not open for receipt of documents or on which, for reasons other than those referred to in paragraph 2, ordinary mail is not delivered in the locality in which the Office is situated, the time limit shall extend until the first day thereafter on which the Office is open for receipt of documents and on which ordinary mail is delivered. The days referred to in the first sentence shall be as stated and communicated by the President of the Office before the commencement of each calendar year.
2. If a time limit expires on a day on which there is a general interruption or a subsequent dislocation in the delivery of mail in a Member State or between a Member State and the Office, the time limit shall be extended until the first day following the end of the period of dislocation or interruption in the delivery of mail for parties to proceedings having their domicile or seat or establishment in the Member State concerned or having appointed procedural representatives with a seat in that State. Should the Member State concerned be the State in which the Office is located, this provision shall apply to all parties to proceedings. The duration of the period of interruption or dislocation shall be as stated and communicated by the President of the Office.
As regards documents submitted by electronic means, the first subparagraph shall apply mutatis mutandis in cases where there is an interruption of the connection of the Office to the electronic means of communication.
3. Paragraphs 1 and 2 shall apply mutatis mutandis to the national agencies, or the sub-offices designated, pursuant to Article 30(4) of the basic Regulation as well as to the Examination Offices.
Article 72
Interruption of proceedings
1. Proceedings before the Office shall be interrupted:
(a)
in the event of the death or legal incapacity of the applicant for, or holder of, a Community plant variety right or of the applicant for an exploitation right to be granted by the Office or of the person entitled to enjoy such exploitation right, or of the procedural representative of any of those parties; or
(b)
in the event of a supervening legal impediment to such person’s continuation of proceedings before the Office, due to some action taken against his property.
2. When the necessary particulars in respect of the identity of the person authorised to continue proceedings as party thereto or procedural representative have been entered in the relevant register, the Office shall inform such person and the other parties that the proceedings shall be resumed as from the date to be determined by the Office.
3. The time limits in force shall begin afresh as from the day on which proceedings are resumed.
4. The interruption of proceedings shall not affect the pursuit of the technical examination or verification of the variety concerned by an Examination Office where the relevant fees have already been paid to the Office.
CHAPTER V
Procedural representatives
Article 73
Designation of a procedural representative
1. Any designation of a procedural representative shall be communicated to the Office. The communication shall contain the name and address of the procedural representative; Article 2(2) and (3) shall apply mutatis mutandis.
2. Without prejudice to Article 2(4), the communication referred to in paragraph 1 shall also identify as such any employee of the party to proceedings. An employee may not be designated as a procedural representative within the meaning of Article 82 of the basic Regulation.
3. Failure to comply with the provisions of paragraphs 1 and 2 shall lead to the communication being deemed not to have been received.
4. A procedural representative whose mandate has ended shall continue to be considered as procedural representative until the termination of his mandate has been communicated to the Office. Subject to any provisions to the contrary contained therein, a mandate shall however, terminate vis-à-vis the Office upon the death of the person who conferred it.
5. If there are two or more parties to proceedings acting in common, which have not notified a procedural representative to the Office, the party to the proceedings first named in an application for a Community plan variety right or for an exploitation right to be granted by the Office or in an objection shall be deemed to be designated as the procedural representative of the other party or parties to the proceedings.
Article 74
Credentials of procedural representatives
1. Where the appointment of a procedural representative is notified to the Office, the necessary signed credentials shall be presented for inclusion in the files within such period as the Office may specify unless otherwise provided. If the credentials are not filed in due time, any procedural step taken by the procedural representative shall be deemed not to have been taken.
2. Credentials may cover one or more proceedings and shall be filed in the corresponding number of copies. General credentials enabling a procedural representative to act in all the proceedings of the party giving the credentials may be filed. A single document embodying the general credentials shall be sufficient.
3. The President of the Office may determine the contents of, and make available, forms for credentials, including the general credentials referred to in paragraph 2, free of charge.
CHAPTER VI
Apportionment and determination of costs
Article 75
Awards of costs
1. A decision as to costs shall be dealt with in the decision on the revocation or cancellation of a Community plant variety right, or the decision on the appeal.
2. In the case of an award of costs pursuant to Article 85(1) of the basic Regulation, the Office shall set out that award in the statement of the grounds of the decision on the revocation or cancellation of a Community plant variety right, or the decision on the appeal. The parties to proceedings may not plead the omission of that indication.
Article 76
Determination of costs
1. A request for the determination of costs shall be admissible only if the decision has been taken in respect of which the determination of costs is required and if, in the event of an appeal against such decision, the Board of Appeal has decided upon that appeal. A bill of costs, with supporting documents, shall be attached to the request.
2. Costs may be determined once their credibility is established.
3. Where one party to proceedings incurs the costs of another party to the proceedings, it shall not be required to reimburse any costs other than those referred to in paragraph 4. Where the successful party to proceedings is represented by more than one agent, adviser or advocate, the losing party shall bear the costs referred to in paragraph 4 for one such person only.
4. The costs essential to proceedings shall cover:
(a)
costs of witnesses and experts paid by the Office to the witness or expert concerned;
(b)
expenses for travel and subsistence of a party to proceedings and an agent, adviser or advocate duly designated as a procedural representative before the Office, within the relevant scales applicable to witnesses and experts laid down in Annex I;
(c)
remuneration of an agent, adviser or advocate duly designated as the procedural representative of a party to proceedings before the Office, within the scales laid down in Annex I.
Article 77
Settlement of costs
In the event of a settlement of costs referred to in Article 85(4) of the basic Regulation, the Office shall confirm such settlement in a communication to the parties to the proceedings. Where such communication confirms also a settlement as to the amount of costs to be paid, a request for the determination of costs shall be inadmissible.
TITLE V
INFORMATION GIVEN TO THE PUBLIC
CHAPTER I
Registers, public inspection and publications
Section 1
The Registers
Article 78
Entries related to proceedings and to Community plant variety rights, to be entered in the Registers
1. The following ‘other particulars’ referred to in Article 87(3) of the basic Regulation shall be entered in the Register of Applications for Community Plant Variety Rights:
(a)
date of publication where such publication is a relevant event for the computation of time limits;
(b)
any objection, together with its date, the name and address of the objector and those of his procedural representative;
(c)
priority data (date and State of the earlier application);
(d)
any institution of actions in respect of claims referred to in Article 98(4) and Article 99 of the basic Regulation as to entitlement to the Community plant variety right, and the final decision in, or of any other termination of, any such action.
2. The following ‘other particulars’ referred to in Article 87(3) of the basic Regulation shall be entered in the Register of Community Plant Variety Rights, upon request:
(a)
the giving of a Community plant variety right as a security or as the object of any other rights in rem; or
(b)
any institution of actions in respect of claims referred to in Article 98(1) and (2) and Article 99 of the basic Regulation and relating to the Community plant variety right, and the final decision in, or of any other termination of, any such action.
3. The President of the Office shall decide upon the details of the entries to be made and may decide upon further particulars to be entered in the Registers for the purpose of the management of the Office.
The President of the Office shall determine the form of Registers. The Registers may be maintained in the form of an electronic database.
Article 79
Entry of transfer of a Community plant variety right
1. Any transfer of Community plant variety rights shall be entered in the Register of Community Plant Variety Rights on production of documentary evidence of the transfer, or of official documents confirming the transfer, or of such extracts from those documents as suffice to establish the transfer. The Office shall retain a copy of those pieces of documentary evidence in its files.
The President of the Office shall determine the form in and the conditions under which those pieces of documentary evidence are to be retained in the files of the Office.
2. The entry of a transfer may be refused only in the event of failure to comply with the conditions laid down in paragraph 1 and in Article 23 of the basic Regulation.
3. Paragraphs 1 and 2 shall apply to any transfer of an entitlement to a Community plant variety right for which an application has been entered in the Register of Applications for Community Plant Variety Rights. The reference to the Register of Community Plant Variety Rights shall be understood as a reference to the Register of Applications for Community Plant Variety Rights.
Article 80
Conditions for entries in the Registers
Without prejudice to other provisions of the basic Regulation or of this Regulation, a request for an entry or a deletion of an entry in the Registers may be made by any interested person. The request shall be made in writing, accompanied by supporting documents.
Article 81
Conditions for specific entries in the Registers
1. Where a Community plant variety right applied for or granted is concerned by bankruptcy or like proceedings, an entry to this effect shall be made, free of charge, in the Register for Community Plant Variety Rights at the request of the competent national authority. This entry shall also be deleted at the request of the competent national authority, free of charge.
2. Paragraph 1 shall apply mutatis mutandis to the institution of actions in respect of claims referred to in Articles 98 and 99 of the basic Regulation and the final decision in, or of any other termination of, any such action.
3. Where varieties are identified respectively as initial and essentially derived, a request for entry by all the parties to proceedings may be made jointly or separately. In the event of a request from only one party to proceedings, the request shall be accompanied by sufficient documentary evidence of the actions referred to in Article 87(2)(h) of the basic Regulation to replace the request of the other party.
4. Where the entry of a contractual exclusive exploitation right or of a Community plant variety right given as security or as the subject of rights in rem is requested, such request shall be accompanied by sufficient documentary evidence.
Article 82
Public inspection of the Registers
1. The Registers shall be open for public inspection on the premises of the Office.
Access to the Registers and the documents held therein shall be granted under the same terms and conditions as apply to the access to documents held by the Office within the meaning of Article 84.
2. On-the-spot inspection of the Registers shall be free of charge.
The production and delivery of extracts from the Registers in any form that requires the processing or manipulating of data other than the mere reproduction of a document or parts thereof shall be subject to the payment of a fee.
3. The President of the Office may provide for public inspection of the Registers on the premises of national agencies, or sub-offices designated, pursuant to Article 30(4) of the basic Regulation.
Section 2
Keeping of documents, public inspection of documents and varieties grown
Article 83
Keeping of the files
1. Documents, either in the form of originals or copies relating to proceedings shall be kept in files, a file number being attached to such proceedings, except for those documents relating to the exclusion of, or objection to, members of the Board of Appeal, or to the staff of the Office or the Examination Office concerned, which shall be kept separately.
2. The Office shall keep one copy of the file referred to in paragraph 1 (file copy) which shall be considered the true and complete copy of the file. The Examination Office may keep a copy of the documents relating to such proceedings (examination copy), but shall ensure delivery of those originals which the Office does not hold.
3. The original documents filed by parties to the proceedings which form the basis of any electronic files may be disposed of after a period following their reception by the Office.
4. The President of the Office shall determine the details as to the form in which the files are to be kept, the period during which files are to be kept and the period referred to in paragraph 3.
Article 84
Access to documents held by the Office
1. The Administrative Council shall adopt the practical arrangements for access to the documents held by the Office, including the Registers.
2. The Administrative Council shall adopt the categories of documents of the Office that are to be made directly accessible to the public by way of publication, including publication by electronic means.
Article 85
Inspection of the growing of the varieties
1. A request for inspection of the growing of the varieties shall be addressed in writing to the Office. With the consent of the Office, access to the test plots shall be arranged by the Examination Office.
2. Without prejudice to Article 88(3) of the basic Regulation, general access to the test plots by visitors shall not be affected by the provisions of this Regulation, provided that all grown varieties are coded, that appropriate measures against any removal of material are taken by the Examination Office entrusted and are approved by the Office, and that all necessary steps are taken to safeguard the rights of the applicant for, or holder of, a Community plant variety right.
3. The President of the Office may lay down the details of the procedure for the inspection of the growing of the varieties, and may review the safeguards to be provided under paragraph 2.
Article 86
Confidential information
For the purpose of keeping information confidential, the Office shall make available, free of charge, forms to be used by the applicant for a Community plant variety right in order to request the withholding of all data relating to components as referred to in Article 88(3) of the basic Regulation.
Section 3
Publications
Article 87
Official Gazette
1. The publication to be issued at least every two months pursuant to Article 89 of the basic Regulation shall be called the Official Gazette of the Community Plant Variety Office (hereinafter the Official Gazette).
2. The Official Gazette shall also contain the information entered in the Registers pursuant to Article 78(1)(c) and (d), Article 78(2) and Article 79.
3. The President of the Office shall determine the manner in which the Official Gazette is published.
Article 88
Publication of applications for exploitation rights to be granted by the Office and decisions thereon
The date of receipt of an application for an exploitation right to be granted by the Office and of delivery of the decision on such application, the names and addresses of the parties to proceedings and the form of order sought, or decided upon, shall be published in the Official Gazette. In the case of a decision to grant a compulsory licence, the contents of such decision shall likewise be published.
Article 89
Publication of appeals and decisions thereon
The date of receipt of a notice of appeal and of delivery of the decision on such appeal, the names and addresses of the parties to the appeal proceedings and the form of order sought, or decided upon, shall be published in the Official Gazette.
CHAPTER II
Administrative and legal cooperation
Article 90
Communication of information
1. Information to be exchanged in accordance with Article 90 of the basic Regulation shall be communicated directly between the authorities referred to in that provision.
2. The communication of information referred to in Article 91(1) of the basic Regulation by or to the Office may be effected through the competent plant variety offices of the Member States, free of charge.
3. Paragraph 2 shall apply mutatis mutandis to the communication of information referred to in Article 91(1) of the basic Regulation effected to or by the Examination Office. The Office shall receive a copy of such communication.
Article 91
Inspection by or via courts or public prosecutors’ offices of the Member States
1. The inspection of files under Article 91(1) of the basic Regulation shall be of copies of the files issued by the Office exclusively for that purpose.
2. Courts or public prosecutors’ offices of the Member States may, in the course of proceedings before them, lay the documents transmitted by the Office open to inspection by third parties. Such inspection shall be subject to Article 88 of the basic Regulation; the Office shall not charge any fee for it.
3. The Office shall, at the time of transmission of the files to the courts or public prosecutor’s offices of the Member States, indicate the restrictions to which the inspection of documents relating to applications for, or to grants of Community plant variety rights is subject pursuant to Article 88 of the basic Regulation.
Article 92
Procedure for letters rogatory
1. Each Member State shall designate a central authority which will undertake to receive letters rogatory issued by the Office and to transmit them to the court or authority competent to execute them.
2. The Office shall draw up letters rogatory in the language of the competent court or authority or shall attach to such letters a translation into that language.
3. Subject to paragraphs 4 and 5, the competent court or authority shall apply its own law as to the procedures to be followed in executing such requests. In particular, it shall apply suitable coercive measures in accordance with its law.
4. The Office shall be informed of the time when, and the place where, the enquiry or other legal measures is to take place and shall inform the parties to proceedings, witnesses and experts concerned.
5. If so requested by the Office, the competent court or authority shall permit the attendance of the staff of the Office concerned and allow them to question any person giving evidence, either directly or through the competent court or authority.
6. The execution of letters rogatory shall not give rise to any charge of fees or to costs of any kind. Nevertheless, the Member State in which letters rogatory are executed shall have the right to require the Office to reimburse any fees paid to experts and interpreters and the costs arising from the procedure under paragraph 5.
TITLE VI
FINAL PROVISIONS
Article 93
Regulation (EC) No 1239/95 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.
Article 94
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 September 2009.