Judgment — ECLI:EU:T:2015:624
Date: 2015-09-10
Language of the case: English
Court formation: Third Chamber
Subject matter: Intellectual, industrial and commercial property;Plant varieties
Procedure: Action for annulment - unfounded
Origin: Italy

summary of the actions given in Annex I thereto. 51 Moreover, as the CPVO acknowledged in its reply and as is confirmed by the substantive arguments set out in the responses, Schniga’s arguments are sufficiently clear, precise, consistent and intelligible to enable the other parties to the proceedings to exercise their rights and the Court to exercise its powers of review. 52 It follows from the foregoing that, even though Schniga did not identify correctly, on page 2 of the applications, the provisions on which it bases the pleas relied on in its actions, those actions are admissible. Substance 53 In support of its actions, Schniga puts forward, in essence, a single plea, alleging infringement of Articles 7 and 56(2) of Regulation No 2100/94 and of Article 22(2) and Article 23(1) and (2) of Regulation No 1239/95. In that context, it maintains in essence that the Board of Appeal was wrong to refuse to take into account the additional characteristic at issue, observed during the technical examination, and based that decision on an incorrect assessment of the discretionary power of the President of the CPVO in that regard. This resulted in both infringement of the ‘principle of due process’ and infringement of Schniga’s substantive right to obtain a plant variety right, as guaranteed by Articles 7 to 10 of Regulation No 2100/94. 54 Schniga divides that argument into two parts, addressing, respectively, the two grounds on which the contested decisions are based. The first part of the single plea in law, relating to the first ground on which the contested decisions are based 55 Schniga states that, on the date on which the application for a plant variety right was filed, no guidelines within the meaning of Article 56(2) of Regulation No 2100/94 had yet been adopted by the CPVO concerning the species of the plant variety in question. Consequently, the BSA was right to base its technical examination on UPOV Protocol TG/14/8 of 1995. 56 Schniga maintains in that regard that all the UPOV technical protocols are based on the guidelines contained in UPOV Protocol TG/1/3, the wording of which clearly indicates that the list of characteristics in the technical protocols is by no means exhaustive. Any characteristic should thus, in principle, be tested during the examination of distinctness, whether or not it is listed in the relevant technical protocol. The Community having acceded to the UPOV Convention in 2005, that principle is binding under EU law. 57 It follows, moreover, from the wording of Article 6 of Regulation No 2100/94 that the plant variety right sought must be granted if the DUS criteria are fulfilled and if the variety is new. According to Schniga, if it becomes apparent during the technical examination that the variety in question shows an ‘essential characteristic’ which is not listed in the relevant guidelines but does fulfil the DUS criteria, the CPVO is required to take that characteristic into account and the plant variety right must be granted. 58 For that reason, the President of the CPVO must be free to decide at any time, during the technical examination procedure and until the final decision is taken on an application for a plant variety right, to take into account such additional characteristics of the variety concerned. No restriction exists, moreover, either in Regulation No 2100/94 or in Regulation No 1239/95, as to the time when the President of the CPVO may exercise this discretion, which also finds expression in Article 23 of Regulation No 1239/95. 59 Thus, in the present case, inasmuch as the additional characteristic at issue observed by the BSA renders the candidate variety distinct from the reference variety, the CPVO had no choice other than to grant the plant variety right sought. 60 The CPVO supports the arguments put forward by Schniga, regarding, inter alia, the relevance of the UPOV protocols, in particular UPOV Protocol TG/1/3, and adds the following considerations. 61 In the first place, that they must be those in force at the date on which the application for a plant variety right is submitted, not those that might be adopted during the course of the technical examination. According to Article 50(1)(f) of Regulation No 2100/94, such an application must contain a technical description of the variety in question. To that end, the CPVO states that it makes available an application form and a technical questionnaire, which the applicant must fill in, identifying and describing the characteristics of the variety in question. Those characteristics must be identified and described by reference to the corresponding characteristics in the test guidelines in force at the time, which are therefore the only guidelines applicable ratione temporis. 62 The CPVO contends, therefore, that the Board of Appeal was wrong to base the contested decisions on CPVO Protocol TP/14/1, adopted in March 2003, and, as a result, its reasoning was vitiated by errors. 63 In the second place, the CPVO contends, in essence, that the guidelines are ‘rules of practice’ and not ‘rules of law which can be legally binding’. 64 In the third place, as to it allegedly being necessary for the Examination Office to obtain prior authorisation from the President of the CPVO before using an additional characteristic not listed in the relevant guidelines, the CPVO contends that the Board of Appeal misinterpreted Section III 3 of CPVO Protocol TP/14/1. The CPVO also argues that neither Regulation No 2100/94 nor the test guidelines in force require such a request for prior authorisation. The Examination Office is not entitled to take a decision on the insertion of an additional characteristic, but it is its duty to conduct all the tests necessary in order to compare all the observed characteristics of the candidate variety with those of the comparison varieties. 65 In that context, the CPVO considers that if its President were to give such prior authorisation, he would have to assess the relevance of the additional characteristic in question without having all the relevant technical information, which, according to the CPVO, can be obtained only through growing the variety examined and the reference varieties. In those circumstances, the point in time when the decision of authorisation is taken is immaterial, the purpose of the system being to preserve the completeness of the technical examination. 66 In the fourth place, the CPVO criticises the Board of Appeal for making the exercise of the power of the President of the CPVO to take a decision to insert an additional characteristic, pursuant to Article 23 of Regulation No 1239/95, conditional on the existence of a prior request by the applicant for a plant variety right. In so doing, the Board of Appeal turned a mere option, provided for by the relevant guidelines, into a procedural obligation incumbent on the applicant for a plant variety right. It also unlawfully limited the discretionary power of the President of the CPVO. 67 In the fifth place, the CPVO criticises the Board of Appeal for making the exercise by the President of the CPVO of his discretionary power to insert an additional characteristic, pursuant to Article 23 of Regulation No 1239/95, conditional on the existence of a prior request by the national office responsible for the technical examination. By definition, that power may not be limited in time or scope. The CPVO relies, in support of that argument, on the judgment of 15 April 2010 in Schräder v CPVO (C‑38/09 P, ECR, EU:C:2010:196, paragraph 77). 68 Finally, in the sixth place, the CPVO criticises the reference made by the Board of Appeal to its earlier decision in JEWEL, and contends that the Board misinterpreted Article 22(2) of Regulation No 1239/95, read in conjunction with Article 23(2) of that regulation. 69 The interveners dispute those arguments. 70 As a preliminary point, the Court observes that the CPVO is not required systematically to defend the decisions of Boards of Appeal that are contested before this Court, even though the CPVO is automatically designated as defendant under Article 172 of the Court’s Rules of Procedure. It is necessary to apply, to that effect and by analogy, the established case-law applicable in Community trade mark cases to the Office for Harmonisation in the Internal Market (OHIM) in proceedings before the General Court (judgments of 30 June 2004 in GE Betz v OHMI - Atofina Chemicals (BIOMATE), T‑107/02, ECR, EU:T:2004:196, paragraph 34, and 12 July 2006 in Rossi v OHMI - Marcorossi (MARCOROSSI), T‑97/05, EU:T:2006:203, paragraph 16). 71 Accordingly, there is nothing to preclude the CPVO from supporting, as it claims to do, Schniga’s arguments in the present case and from contending that the actions should be upheld. 72 In responding to those parties’ arguments, the Court will examine, as a preliminary matter: (i) the protocols and test guidelines applicable ratione temporis in the present case; (ii) the relationship between the respective protocols and test guidelines of the CPVO and the UPOV; and (iii) the legal nature of the protocols and test guidelines adopted by the Administrative Council of the CPVO and whether they are binding on the President of the CPVO. 73 With regard, in the first place, to the determination of the protocols and test guidelines applicable ratione temporis in the present case, it should be recalled that, in paragraph 19 of the contested decisions, the Board of Appeal stated that those were UPOV Protocol TG 14/8, adopted by UPOV on 20 October 1995, and CPVO Protocol TP 14/1, adopted by the CPVO on 27 March 2003, that is, after the application for a plant variety right had been submitted but before the technical examination had commenced. 74 In the light of the arguments put forward by Schniga and the CPVO challenging that choice, it is appropriate to recall the principles governing the temporal application of new rules of law, in particular the principle tempus regit actum, invoked by the interveners. 75 In its judgment of 26 March 2015 in Commission v Moravia Gas of 26 March 2015 (C‑596/13 P, ECR, EU:C:2015:203, paragraphs 32 and 33), to which this court drew the parties’ attention at the hearing, the Court of Justice stated, in that regard, that a new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application (see judgment of 7 November 2013 in Gemeinde Altrip and Others, C‑72/12, ECR, EU:C:2013:712, paragraph 22 and the case-law cited). In particular, according to settled case-law, procedural rules are generally taken to apply from the date on which they enter into force (see judgment of 11 December 2012 in Commission v Spain, C‑610/10, ECR, EU:C:2012:781, paragraph 45 and the case-law cited), as opposed to substantive rules, which are usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such an effect must be given to them (judgments of 12 November 1981 in Meridionale Industria Salumi and Others, 212/80 to 217/80, ECR, EU:C:1981:270, paragraph 9; 23 February 2006 in Molenbergnatie, C‑201/04, ECR, EU:C:2006:136, paragraph 31; and 11 December 2008 in Commission v Freistaat Sachsen, C‑334/07 P, ECR, EU:C:2008:709, paragraph 44). 76 In the present case, the immediate applicability of the procedural provisions laid down in CPVO Protocol TP/14/1 — as recognised and implemented by the Board of Appeal — appears to be consistent with those principles and that line of case-law, which are, moreover, reflected in Articles 22(2) of Regulation No 1239/95, under which new test guidelines adopted by the Administrative Council of the CPVO are, as a general rule, directly applicable to ongoing examination procedures. 77 Moreover, there is nothing particular about the matter under examination that might justify an exception to the principle that the provisions of the new CPVO Protocol TP/14/1 are immediately applicable to a technical examination procedure initiated under UPOV Protocol TG/14/8. The CPVO’s argument to the contrary, based on the claim that the technical examination is restricted, inter alia, to describing the characteristics of the variety in question by reference to the corresponding characteristics in the test guidelines in force, is not convincing. Article 23(1) of Regulation No 1239/95 provides that the President of the CPVO has the power to insert additional characteristics and their expressions in respect of a variety and these are, in principle, immediately applicable, unless otherwise decided where circumstances so dictate, by application mutatis mutandis of Article 22(2) of that regulation. Moreover, it is the CPVO’s principal argument in these proceedings that the essential parameters of that description, in particular the list of the genotypical characteristics to be taken into account, may be altered at any stage in the procedure by the President of the CPVO in the exercise of his broad power of discretion. The CPVO’s argument is also at odds with Sections 6.2 and 7.2 of UPOV Protocol TG/1/13, which, it is common ground, forms the basis of all the UPOV guidelines for the examination of DUS. According to those sections, the relevant characteristics for the purpose of the examination of DUS are determined by reference to the variety description established ‘at the date of grant of protection’ applied for, not by reference to the variety description established at the date when the application is lodged. 78 The claim made by the CPVO that the written agreement under which the CPVO entrusted the technical examination of the candidate variety to the BSA stipulated that, in the absence of any CPVO test guidelines, reference should be made to the UPOV guidelines, is not relevant. Such a stipulation does not prejudice the applicability of any test guidelines that may be adopted by the CPVO in the course of the technical examination. 79 As regards, in the second place, the relationship between CPVO Protocol TP/14/1, at issue in the present case, and the UPOV Protocols, it should be noted that, while the Community has been a member of UPOV since 29 July 2005, that does not mean that, since it became a member, the UPOV Protocols necessarily take precedence over the protocols drawn up by the CPVO in the hierarchy of norms. Reference should be made in that regard to the wording of Section 1.3 of UPOV Protocol TG/1/3, which makes it clear that the protocols and guidelines established by the UPOV form a series of recommendations that are not legally binding and are intended simply to harmonise the technical examinations conducted by the competent authorities. 80 It follows that Schniga’s argument that the UPOV guidelines are, of necessity, binding on the European Union must be rejected as unfounded. In the present case, it is therefore necessary, where there is divergence between CPVO Protocol TP/14/1 and the UPOV Protocols, to give precedence to the former. 81 With regard, in the third place, to the legal nature of the protocols and test guidelines adopted by the Administrative Council of the CPVO and whether they are binding on the President of the CPVO, it is true that, in view of the scientific and technical complexity of the matter, the EU judicature has recognised that the CPVO enjoys a wide measure of discretion in conducting the technical examination of a variety for which an application for a Community plant variety right has been made, which is, moreover, entrusted to one of the competent national bodies in accordance with Article 55 of Regulation No 2100/94, and that discretion extends, inter alia, to verifying whether that variety has distinctive character for the purpose of Article 7(1) of that regulation (see, to that effect, judgment of 19 November 2008 in Schräder v CPVO (SUMCOL 01), T‑187/06, ECR, EU:T:2008:511, paragraphs 59 to 64, confirmed by the judgment in Schräder v CPVO, cited in paragraph 67 above, EU:C:2010:196, paragraph 77). 82 In particular, Article 23(2) of Regulation No 1239/95 gives the President of the CPVO the power to insert additional characteristics and their expressions in respect of a variety where the Administrative Council takes a decision as to the test guidelines. Moreover, under Article 22(2) of that regulation, in the absence of a decision by the Administrative Council as to test guidelines, the President of the CPVO may take a provisional decision in that regard. 83 The fact nevertheless remains that the protocols and test guidelines, which are adopted by the Administrative Council acting on a proposal from the President of the CPVO, are akin to legal rules which the CPVO has imposed on itself in order to ensure that technical examinations are properly conducted under conditions objectively established in advance and that the CPVO is therefore required, in principle, to comply with them in ongoing procedures before it. 84 The binding nature of those guidelines is apparent, first and foremost, from Article 56(2) of Regulation No 2100/94. That is also the reason why, in order to ensure legal certainty and equal treatment of the operators concerned, those guidelines must be published in the Official Gazette of the CPVO as referred to in Article 87 of the implementing regulation, in accordance with Article 22(1) of the said regulation. That the legislature was concerned to ensure, in that context, that the principle of due process was observed in the conduct of technical examinations is further confirmed by the detailed rules on the applicability of the guidelines set out in Article 22(2) of Regulation No 1239/95. Similarly, under Article 27 of that regulation, the CPVO may consider a technical examination report carried out in a Member State pursuant to Article 55(1) of Regulation No 2100/94 to constitute a sufficient basis for a decision only if, inter alia, ‘the technical examination has been carried out in a manner consistent with the designations by the Administrative Council … and in accordance with the test guidelines issued by the Administrative Council, or on general instructions given by the latter, pursuant to Article 56(2) of [Regulation No 2100/94] and Articles 22 and 23 of [Regulation No 1239/95]’. 85 It is relevant, in this context, also to refer to the case-law to the effect that, in adopting rules of conduct designed to produce external effects and announcing, by publishing them, that they will henceforth apply to the cases to which they relate, the administration in question imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations (see, to that effect, judgements of 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraphs 209 to 211, and 11 September 2008 in Germany and Others v Kronofrance, C‑75/05 P and C‑80/05 P, ECR, EU:C:2008:482, paragraph 60, and the case-law cited). 86 It follows from the foregoing that neither the CPVO nor its President can validly argue that they may, on a case-by-case basis and in the exercise of the broad powers of discretion they enjoy with regard to technical examinations, depart from the guidelines and instructions in force at the material time. Observance of the procedural safeguards established by the test guidelines is, on the contrary, especially important as the CPVO enjoys such powers of discretion in accordance with the case-law cited in paragraph 81 above. 87 Those three principles being established, the Board of Appeal did not err in finding, at paragraph 25 of the contested decisions, that the BSA’s taking into account, for the purposes of the technical examination, an additional characteristic not listed in CPVO Protocol TP/14/1 in force at that time constituted an infringement of Section III 3 of that protocol. 88 First, it is common ground that the additional characteristic at issue is not mentioned in Annex I to CPVO Protocol TP/14/1. 89 Second, as the Board of Appeal was correct to observe at paragraph 21 of the contested decisions, neither in the technical questionnaire nor during the test period did Schniga submit a request for the additional characteristic at issue to be taken into account under Section III 6 of CPVO Protocol TP/14/1. 90 Third, in the present case, no ‘technically acceptable test procedure’ for special tests within the meaning of Section III 6 of CPVO Protocol TP/14/1 was devised by the CPVO or by the BSA in the course of the technical examination and the tests were conducted without the agreement of the President of the CPVO, within the meaning of that point, even though it is apparent from the documents before the Court that distinctness could not have been established by referring to the characteristics listed in Annex I to that protocol. 91 Fourth, as the Board of Appeal was correct to observe at paragraph 22 of the contested decisions, the additional characteristic at issue was not mentioned in the BSA’s letter to the CPVO of 18 January 2005, in which the only additional characteristic referred to was ‘Flower: colour of base of filament’, which was not, ultimately, reproduced in the decision of the President of the CPVO of 14 December 2006 authorising the use of the additional characteristic at issue. The additional characteristic at issue was mentioned for the first time in the final examination report and, subsequently, in that decision. 92 In the light of the foregoing considerations, the Board of Appeal did not err in finding, at paragraph 26 of the contested decisions, that the decision of the President of the CPVO of 14 December 2006 to permit retrospectively the use of the additional characteristic at issue in the technical examination was fundamentally flawed, coming as it did some 12 months after the final examination report. 93 Even if it were accepted, as claimed by Schniga and the CPVO, that additional characteristics may be inserted by the President of the CPVO of his own motion, pursuant to Article 23 of Regulation No 1239/95, without any such request having been made by the applicant for a plant variety right under Section III 6 of CPVO Protocol TP/14/1, the fact remains that it is still necessary, in such a case, to comply with the conditions and procedural requirements set out in point 6. In that regard, the Court fully endorses the decision-making practice of the Board of Appeal referred to at paragraph 27 of the contested decisions whereby the use of an additional characteristic by a national office responsible for the technical examination must receive the prior approval of the President of the CPVO ‘in order to ensure legal certainty, objectivity in the handling of applications for grant of a plant variety right and the predictability of the behaviour of all the players concerned’. 94 In the light of all the foregoing considerations, none of the objections put forward by Schniga and the CPVO in respect of the first ground on which the contested decisions are based are well founded and the first part of the single plea in law must therefore be rejected. The second part of the single plea in law, relating to the second ground on which the contested decisions are based 95 Schniga complains that the Board of Appeal wrongly held, in paragraph 28 of the contested decisions, that the results of the technical examination were flawed because, as regards the additional characteristic at issue, that examination related to one year only, contrary to the relevant guidelines. In the present case, the CPVO ascertained that the characteristics establishing distinctness were uniform and stable on the basis of the findings made during the ‘years following 2005’, as was confirmed by the BSA representative during the proceedings before the Board of Appeal. 96 The CPVO concurs with those arguments and states that, by e-mail of 8 August 2008, the BSA confirmed to it that the additional characteristic at issue had been assessed ‘even after the submission of the final report in the years 2006 and 2007’. Thus, according to the CPVO, the technical examination concerning the additional characteristic at issue was conducted for two full years before the decision granting a plant variety right was adopted on 26 February 2007. 97 The interveners dispute those arguments. 98 In that regard, the Court observes, first, that where some of the grounds given in a decision are, by themselves, sufficient to justify that decision in law, errors which might invalidate other grounds of the decision do not have any effect on its operative part (see judgment of 14 December 2005 in Honeywell v Commission, T‑209/01, ECR, EU:T:2005:455, paragraph 48 and the case-law cited). 99 Moreover, where the operative part of a decision is based on several pillars of reasoning, each of which would in itself be sufficient to justify that operative part, that decision should, in principle, be annulled only if each of those pillars is vitiated by illegality. In such a case, an error or other illegality which affects only one of the pillars of reasoning cannot be sufficient to justify annulment of that decision because that error could not have had a decisive effect on the operative part adopted by the institution in question (see judgment in Honeywell v Commission, cited in paragraph 67 above, EU:T:2005:455, paragraph 49 and the case-law cited). 100 In the present case, it is apparent from the examination of the first part of the single plea in law that the first ground on which the contested decisions are based is not vitiated by illegality. That ground is thus sufficient to validate in law the contested decisions, by which the Board of Appeal annulled the decision granting a plant variety right and the decisions dismissing the objections and rejected the application for a plant variety right. 101 Accordingly, the second part of the single plea in law may be rejected at the outset as ineffective (see, to that effect, judgment in Honeywell v Commission, cited in paragraph 67 above, EU:T:2005:455, paragraph 51). 102 The considerations set out below are therefore given for the sake of completeness only. 103 As the Board of Appeal observed in paragraphs 28 and 29 of the contested decisions, it is common ground that the technical examination in the light of the additional characteristic at issue had taken place over a period of one year only, that is to say, 2005, whereas all other characteristics had been assessed in the two consecutive growing seasons 2004 and 2005. That constituted a clear infringement of Section III 5 of CPVO Protocol TG/14/1 and Section IV of that protocol. It also constituted an infringement of Section 5.3.3.1.1. of UPOV Protocol TG/1/3. 104 With regard to the argument put forward by Schniga and the CPVO that the BSA was able to remedy the situation by continuing to examine the candidate variety during the ‘years following 2005’, namely, in 2006 and 2007 and therefore after the final technical examination report had been submitted on 19 December 2005 — indeed, after the grant of the plant variety right sought on 26 February 2007 — the interveners are correct to claim that that argument is at odds with the fundamental principles of the rule of law, in particular the principles of due process and legal certainty. It cannot be accepted, in the light of those principles, that a plant variety right might be granted ‘in advance’ (as it were), by postponing the completion of the technical examination to a later date. 105 As none of the objections put forward by Schniga and the CPVO in respect of the second ground on which the contested decisions are based are well founded, the second part of the single plea in law must, in any event, be rejected and the actions therefore dismissed in their entirety. Costs 106 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 107 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the interveners, in accordance with the form of order sought by the interveners. The CPVO is to bear its own costs, in accordance with the form of order sought by the CPVO. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the actions; 2. Orders Schniga Srl to pay the costs incurred by Brookfield New Zealand Limited and by Elaris SNC and to pay its own costs. The Community Plant Variety Office (CPVO) is to bear its own costs. Papasavvas Forwood Bieliūnas Delivered in open court in Luxembourg on 10 September 2015. [Signatures] * Language of the case: English.