Judgment — ECLI:EU:T:2017:494
Date: 2017-07-13
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Intellectual, industrial and commercial property;Plant varieties
Procedure: Action for annulment - unfounded
Origin: Netherlands

summary set out in the email of 21 October 2005 from the CPVO must therefore be regarded as reflecting the content of the email of 24 August 2005 from the Bundessortenamt. 45 Furthermore, in accordance with the CPVO’s request to clarify the question of the Bundessortenamt’s reservations concerning the novelty of the candidate variety, the applicant submitted its observations by email of 30 November 2005, also referring to a telephone conversation which it had with the services of the CPVO. In its observations, it stated that the breeder had assured it that it had not sold the candidate variety for the purposes of its commercial exploitation. The applicant added that the inclusion of a variety in a reference collection several years old did not affect the novelty of the candidate variety. 46 It follows from all of those considerations that, contrary to what the applicant maintains, it was duly informed of the contents of the email of 24 August 2005 from the Bundessortenamt and could submit its observations concerning the novelty of the candidate variety. The applicant’s argument that its email to the CPVO of 30 November 2005 sought to reply to the email from the CPVO of 21 October 2005 and not to the email of 24 August 2005 from the Bundessortenamt does not alter that conclusion. 47 Lastly, the email of 24 August 2005 from the Bundessortenamt was, in any event, communicated to the applicant on 3 April 2014, as the applicant submits. On that date, the hearing before the Board of Appeal had not yet taken place and the email of 24 August 2005 from the Bundessortenamt could therefore still be the subject of observations by the applicant on that occasion. 48 It follows that, as regards the email of 24 August 2005 from the Bundessortenamt, the adversarial principle and the rights of the defence have been respected. 49 Secondly, the applicant maintains that the two letters from the breeder of 8 August 2008 were not sent to it until 3 April 2014, that is, too late having regard to the adversarial principle and infringement of Article 75 of Regulation No 2100/94. 50 It must be pointed out that the two letters from the breeder of 8 August 2008 are addressed to the administrator and the representative of the intervener. In those letters, the breeder states that, at the end of the 1980s, the candidate variety, of which it is the breeder, had been sent for research purposes to the Dresden-Pillnitz Institute in the context of a cooperation agreement, and that the Dresden-Pillnitz Institute might have transferred that variety to other collections without its authorisation. However, relying on its copyright, it requested the intervener, inter alia, to cease all production and sale of fruit trees of the candidate variety and to withdraw its objection to the application for a plant variety right filed on 16 October 2007. Those letters were sent by the breeder to the CPVO, which received them on 8 September 2008. 51 The parties disagree as to the date on which the applicant became aware of the two letters from the breeder of 8 August 2008. The applicant claims that it became aware of it only on 3 April 2014, whereas the CPVO contends that it was aware of it before, through the breeder, and that, furthermore, those letters had been sent on 14 December 2011, when the file concerning the objections was forwarded. 52 It should be noted that, contrary to what the CPVO contends, it is not apparent from the documents in the case file that it was the breeder that brought to the attention of the applicant the two letters from the breeder of 8 August 2008. Clearly, that is possible in view of their contractual relationship, since the breeder transferred its rights in respect of the candidate variety to the applicant. However, the reasoning of the CPVO, which seeks to deduce from the contact between the breeder and the applicant that it would seem logical that the applicant had been informed of the letters in question, is not sufficient to prove that those letters were communicated to it by the breeder. Moreover, as the CPVO pointed out, the two letters from the breeder of 8 August 2008 were not raised by the applicant in the written procedure before the CPVO. 53 Nor is it apparent from the evidence in the file that the CPVO had, as it contends, communicated to the applicant, on 14 December 2011, the two letters from the breeder of 8 August 2008. 54 In response to a measure of organisation of procedure on that issue, the CPVO submitted certain documents which do not reveal any evidence in that regard. The email of 14 December 2011, addressed in particular to the applicant (see paragraph 15 above), merely mentions that it is sending a copy of the file concerning the objections received by the CPVO, without establishing that the two letters from the breeder of 8 August 2008 were included in that file. When questioned on this point at the hearing, the CPVO admitted that it was unable to produce evidence that the two letters from the breeder of 8 August 2008 were attached to the email of 14 December 2011. 55 The CPVO also produces the letter of 8 August 2008 sent to it by the breeder (see paragraph 11 above), in which the latter refers to its disagreement with the illegal production of trees of the Noiabriskaia variety of pears in Germany and refers to the submissions of the intervener’s lawyer. The CPVO also refers to the letter of 18 April 2008 from the intervener’s lawyer, in which it refers to the applicant’s actions and forwards two sworn statements (see paragraph 8 above). Finally, the CPVO refers to its letter of 7 May 2008 transmitting those sworn statements to the applicant. 56 However, none of the documents referred to in paragraph 55 above prove that the two letters from the breeder of 8 August 2008 had been forwarded. 57 It must therefore be held that communication to the applicant, before the 3 April 2014, of the two letters from the breeder of 8 August 2008 has not been proven. 58 However, even if the applicant only became aware of the two letters from the breeder of 8 August 2008 on 3 April 2014, as it claims, that does not demonstrate in what way such a circumstance infringed its rights of defence. 59 First, on that date, the hearing before the Board of Appeal had not yet taken place and the two letters from the breeder of 8 August 2008 could therefore still be discussed on that occasion before the Board of Appeal. 60 Secondly, the applicant has not established how the allegedly late production of the two letters from the breeder of 8 August 2008 adversely affected it, that is to say, how its defence might have been better assured had those letters been available to it earlier (see, to that effect, judgment of 2 October 2003, Corus UK v Commission, C‑199/99 P, EU:C:2003:531, paragraph 20). In that regard, its argument that the documents at issue were decisive has not been substantiated. The applicant states that the Board of Appeal referred to the two letters from the breeder of 8 August 2008 to confirm that the commercially exploited varieties Nojabrskaja and Nojabraskaja Novembra were the same variety as the candidate variety, which it disputes. However, that point was already in dispute and had been discussed on several occasions by the applicant before the CPVO, in particular in the context of its observations concerning the objections raised against the application for a plant variety right. Moreover, the two letters from the breeder of 8 August 2008 appear to be favourable to the applicant’s argument concerning the novelty of the candidate variety and the lack of consent of the breeder, which was also in dispute during the procedure before the CPVO. 61 Consequently, the applicant has wholly failed to demonstrate that the two letters from the breeder of 8 August 2008 constituted decisive documents, the allegedly late production of which infringed its rights of defence. 62 In view of the above, the first plea in law, alleging infringement of Article 75 of Regulation No 2100/94, must be rejected. The second plea in law, alleging a breach of Article 10 of Regulation No 2100/94 63 The Board of Appeal rejected the application for a plant variety right on the ground that the candidate variety was not new within the meaning of Article 10 of Regulation No 2100/94. It considered, first, that the candidate variety and the variety known as Nojabrskaja or Nojabrskaja Novembra were similar and, secondly, that the candidate variety was not new in so far as constituents of that variety had already been sold in the years 2000 to 2003, as evidenced by invoices produced by the objectors to the application for a plant variety right. 64 The applicant disputes the Board of Appeal’s assessment on two points. First, it alleges that the plant material sold under the name Nojabrskaja or Nojabrskaja Novembra did not belong to the candidate variety and, secondly, that the candidate variety was new within the meaning of Article 10 of Regulation No 2100/94. 65 The CPVO and the intervener dispute the applicant’s arguments. 66 As a preliminary point, it should be noted that Article 6 of Regulation No 2100/94 provides that Community plant variety rights are to be granted for varieties that are distinct, uniform, stable and new. 67 When an application for a Community plant variety right is lodged, the CPVO first carries out a substantive examination, provided for by Article 54 of Regulation No 2100/94, as to whether, inter alia, the variety is new pursuant to Article 10 of that regulation. It also carries out a technical examination, provided for in Article 55 of Regulation No 2100/94, which seeks to ensure that compliance with the conditions of distinction, uniformity and stability laid down in Articles 7 to 9 of that regulation is monitored, in at least one of the Member States, by the competent office or offices. 68 Article 10 of Regulation No 2100/94, relating to the criterion of novelty, states as follows: ‘1. A variety shall be deemed to be new if, at the date of application determined pursuant to Article 51, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder within the meaning of Article 11, for purposes of exploitation of the variety: (a) earlier than one year before the abovementioned date, within the territory of the [European Union]; (b) earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the [European Union]. 2. The disposal of variety constituents to an official body for statutory purposes, or to others on the basis of a contractual or other legal relationship solely for production, reproduction, multiplication, conditioning or storage, shall not be deemed to be a disposal to others within the meaning of paragraph 1, provided that the breeder preserves the exclusive right of disposal of these and other variety constituents, and no further disposal is made. However, such disposal of variety constituents shall be deemed to be a disposal in terms of paragraph 1 if these constituents are repeatedly used in the production of a hybrid variety and if there is disposal of variety constituents or harvested material of the hybrid variety. ...’ 69 Pursuant to Article 73 of Regulation No 2100/94, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal of the CPVO by reviewing their application of EU law, having regard, in particular, to the facts which were submitted to them. Accordingly, the General Court may carry out a full review of the legality of decisions of the Boards of Appeal of the CPVO, if necessary examining whether the Board of Appeal concerned made a correct legal characterisation of the facts of the dispute or whether its appraisal of the facts placed before it was flawed (see judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑534/10 P, EU:C:2012:813, paragraphs 38 to 40 and the case-law cited). 70 It is apparent from case-law that, where the factual findings and assessments made by the Board of Appeal are the result of complex assessments in the botanical or genetics field, requiring expert or specific scientific or technical knowledge, the review carried out by the General Court is limited to ascertaining whether there has been a manifest error (judgments of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77, and of 19 November 2008, Schräder v CPVO (SUMCOL 01), T‑187/06, EU:T:2008:511, paragraphs 59 to 63). That is true, for example, of the assessment of the distinctive character of a variety, in the light of the criteria set out in Article 7(1) of Regulation No 2100/94. 71 On the other hand, as regards factual assessments which are not of a specific technical or scientific complexity, it is apparent from the case-law that the General Court carries out a full review of legality (judgments of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77, and of 19 November 2008, SUMCOL 01, T‑187/06, EU:T:2008:511, paragraph 65). 72 In so far as examination of the question of the novelty of the candidate variety at issue in the present case does not require particular expertise or technical knowledge, it is necessary to examine the applicant’s claims by carrying out a comprehensive judicial review. 73 Furthermore, as regards the burden of proof, Article 76 of Regulation No 2100/94 provides that, in proceedings before it, the CPVO is to make investigations on the facts of its own motion, to the extent that they come under the examination pursuant to Articles 54 and 55 of that regulation. It is to disregard facts or items of evidence which have not been submitted within the time limit set by the CPVO. That provision applies to proceedings before the Board of Appeal (judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraph 46). 74 Furthermore, in the procedure for granting Community plant variety rights, the candidate plant variety, under Articles 54 and 55 of Regulation No 2100/94, must undergo a substantive examination and a thorough and complex technical examination. In that context, the applicant, which disputes the result of those examinations, must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the decision adopted following those examinations (see, to that effect and by analogy, judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraphs 55 and 57). 75 It is in the light of those principles that the applicant’s two complaints must be examined. – The first complaint, alleging that the Board of Appeal erred in its assessment that the plant material sold belongs to the candidate variety 76 The applicant maintains that the Board of Appeal merely considers it likely, without proving it, that the plant material sold under the name Nojabrskaja or Nojabrskaja Novembra belonged to the candidate variety. 77 The CPVO and the intervener dispute the applicant’s arguments. 78 On that point, it should be noted that, contrary to the applicant’s submission, the Board of Appeal relied on several factors, which were not contradicted by the applicant, to conclude, in the contested decision, that the candidate variety was the same as the variety called Noiabriskaia. 79 In the first place, the Board of Appeal stated that the similarity between the candidate variety and the variety Nojabrskaja had been clearly pointed out by the Bundessortenamt. At the request of the CPVO of 2 February 2011, the Bundessortenamt indicated, by email of 9 February 2011 (see paragraph 14 above), that the plant material submitted for the technical examination of the candidate variety was identical to the variety Nojabrskaja, obtained in 1962 in Moldova, disseminated in 1969 and introduced into the collection in Wurzen in 1982 from an unknown source. It added that plant material of that variety had been propagated in a nursery in Magdeburg and sold in the former German Democratic Republic since 1985.In the email sent to the CPVO on 7 November 2012 (see paragraph 16 above), the Bundessortenamt reaffirmed that there was no doubt that the candidate variety and the variety Nojabrskaja were the same variety. It added that the problem was therefore more an issue of novelty than of distinctiveness. 80 In the second place, the Board of Appeal relied on the fact that the similarity between the candidate variety and the variety Nojabrskaja was confirmed by the two letters from the breeder of 8 August 2008, which were sent to the CPVO on 8 September 2008. As the Board of Appeal stated, the breeder, relaying on its copyright, asked the intervener and its representative to cease all production and sale of fruit trees of the variety Noiabriskaia and to withdraw the objection of 16 October 2007. It follows implicitly, therefore, that the breeder itself admits that the variety sold by the intervener, who is the objector, is identical to the candidate variety, which is the subject of the application for a plant variety right. 81 In the third place, as the Board of Appeal pointed out, the applicant itself sent a letter of 10 December 2007 to a nursery established in Germany, informing it that it was selling trees bearing the name of Nojabraskaja belonging to the candidate variety and requesting to be kept informed of the number of trees sold. That letter confirms that the applicant itself considers that the variety Nojabraskaja is a plant material belonging to the candidate variety. 82 It follows from these considerations that the applicant is wrong in asserting that the Board of Appeal did not demonstrate that the candidate variety and the variety Nojabrskaja were identical. 83 Moreover, contrary to what the applicant submits, the Board of Appeal did not rely solely on the two letters from the breeder of 8 August 2008, but also on evidence provided by the Bundessortenamt, which the CPVO had requested to clarify its position in that regard. 84 Furthermore, the applicant, who also mentioned in the application for a plant variety right that the candidate variety was designated by the breeder under the name Noiabriskaia, did not submit any evidence that the Board of Appeal’s assessment was wrong that regard. 85 It was, therefore, without any error of assessment that the Board of Appeal found that the candidate variety and the variety Nojabrskaja were identical. 86 The applicant’s first head of claim must therefore be rejected. – The second complaint, alleging that the Board of Appeal erred in its assessment concerning the novelty of the candidate variety 87 The applicant disputes the lack of novelty of the candidate variety. It argues that, in the late 1980s, the Dresden-Pillnitz Institute received plant material of the candidate variety purely for research purposes and was not permitted to make that material available to third parties without the consent of the breeder. According to the applicant, although the text of the agreement between the breeder and the Dresden-Pillnitz Institute can no longer be submitted, the fact remains that, at the time, it was forbidden to sell, give away, transfer or distribute plant material without the consent of the breeder, as evidenced by agreements concerning other varieties. It therefore argues that the breeder never gave its consent to the transfer of plant material of the candidate variety for the purposes of its exploitation, within the meaning of Article 10 of Regulation No 2100/94, prior to the date of the application for a plant variety right. Any transfer for research purposes does not affect the novelty of the candidate variety. The applicant concludes that the candidate variety is sufficiently new to warrant protection. 88 The CPVO and the intervener dispute the applicant’s arguments. 89 In the first place, it should be noted that the applicant stated, in the application for a plant variety right, that the breeder had transferred its rights to the candidate variety to the applicant under a contract, which it annexed, and indicated that the candidate variety had not been sold or exploited previously. 90 It is apparent from several documents in the case file that constituents of the candidate variety had previously been sold to third parties and commercially exploited. 91 As was stated in paragraph 25 of the contested decision, the candidate variety was present in the collection at Wurzen at the latest in 1982 and subsequently in the reference collection of the Bundessortenamt. 92 It must also be noted that invoices were submitted by the objectors to the application for a plant variety right and that those invoices attest to the fact that constituents of the candidate variety had already been sold in the years 2000 to 2003. As was stated in paragraph 26 of the contested decision, those invoices relate to sales of plant material belonging to the Nojabrskaja variety between 2000 and 2003. Since that variety is the same as the candidate variety, those invoices must be regarded as relating to plant material of the candidate variety. 93 It is also clear from the two sworn statements of 16 April 2008, sent by the intervener to the CPVO (see paragraph 8 above), that the candidate variety had been present on the European market for several years. 94 Finally, the breeder itself stated in one of its two letters of 8 August 2008 (see paragraph 9 above) that the candidate variety had been sent for research purposes to the Dresden-Pillnitz Institute in the context of a cooperation agreement and that, ‘unfortunately’, that institute ‘could transmit the [candidate variety] to other federal collections’ without its authorisation. 95 It must therefore be held that, in the present case, a transfer of the candidate variety by the breeder occurred before the date of the application for a plant variety right. 96 In the second place, the applicant maintains that the transfer to the Dresden-Pillnitz Institute was solely for research purposes, which would not affect the novelty of the candidate variety within the meaning of Article 10 of Regulation No 2100/94. 97 In that regard, first, the cooperation contract concluded between the breeder and the Dresden-Pillnitz Institute, the transferee of the variety, was not produced before the CPVO. 98 Secondly, as the Board of Appeal pointed out in paragraph 27 of the contested decision, the declaration by the breeder claiming that it transferred the candidate variety solely for research purposes does not, on its own, constitute sufficient evidence to establish that the candidate variety was transferred only for research purposes. 99 The case-law makes it clear that, in order to assess the evidential value of a document, regard should be had, first, to the credibility of the account it contains. It is then necessary to take account of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable. Furthermore, even where an affidavit has been drawn up in accordance with Article 78(1)(g) of Regulation No 2100/94, it cannot be attributed probative value, where it has been drawn up by persons associated with the applicant, unless it is supported by other evidence (see order of 21 October 2013, SOUTHERN SPLENDOUR, T‑367/11, not published, EU:T:2013:585, paragraph 49 and the case-law cited). 100 In the present case, the declaration by the breeder, that the candidate variety had not been transferred for the purposes of its exploitation prior to the application for a plant variety right cannot, in itself, be regarded as sufficient evidence. The breeder is associated with the applicant under the contract transferring the breeder’s rights over the candidate variety to the applicant. Such a declaration should therefore be supported by other evidence. 101 Thirdly, it is true that, in its two letters of 8 August 2008, the breeder invoked the protection of its copyright in order to request the intervener to cease all production and sale of fruit trees of the variety Noiabriskaia and to withdraw its objection of 16 October 2007. 102 However, when questioned in this regard under a measure of organisation of the procedure, the applicant stated that it had not been associated with those actions of the breeder and did not provide any specific information concerning the follow-up on those actions. Furthermore, it did not produce any evidence to support the existence of an exclusive right of disposal allegedly held by the breeder over the candidate variety. The applicant merely stated that the breeder had repeatedly declared that it had never authorised the reproduction or sale by third parties of the variety Noiabriskaia. The applicant did, however, produce a letter dated 7 March 2006 that the breeder had sent to it to that effect. However, such a letter is not sufficient to prove the existence of an exclusive right to transfer the candidate variety. 103 Fourthly, the applicant maintains that, at the time of the transfer to the Dresden-Pillnitz Institute, it was forbidden to sell, give away, transfer or distribute plant material without the breeder’s consent, as evidenced by agreements concerning other varieties. 104 However, the agreements in question, dating from 2000 and 2002, are set out in Exhibits 12A and 12B annexed to the application, which were previously declared inadmissible (see paragraphs 31 and 32 above). In any event, these agreements do not concern the candidate variety and the argument based on those agreements is therefore ineffective. 105 Fifthly, the applicant claims that the search for the term ‘Nojabrskaja’ using the Google search engine does not yield a single hit predating June 2005 and that such a search can no longer find any trace of the businesses whose invoices, dating back from 2000 to 2003, had been produced to support the objections to the application for a plant variety right lodged with the CPVO (see paragraph 34 above). 106 However, that assertion by the applicant is not substantiated in any way. Moreover, and in any event, such an argument is irrelevant to the assertion that the transfer by the breeder was for research purposes only and therefore does not demonstrate in any way the existence of such a transfer in the present case. 107 Consequently, the evidence produced by the applicant is not sufficient to demonstrate that the breeder had transferred the candidate variety for research purposes only and cannot give rise to serious doubts as to the legality of the contested decision, within the meaning of the case-law cited above (see paragraph 74 above). 108 In the light of all the foregoing, it must be held that the Board of Appeal of the CPVO was fully entitled to conclude that the candidate variety was not new within the meaning of Article 10 of Regulation No 2100/94. 109 It follows that the second claim must be rejected and, therefore, that the second plea in law must be dismissed in its entirety. 110 It follows from all of the foregoing that the present action must be dismissed in its entirety. Costs 111 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the CPVO and the intervener. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Boomkwekerij van Rijn-de Bruyn BV to pay the costs. Berardis Spielmann Csehi Delivered in open court in Luxembourg on 13 July 2017. E. Coulon S. Frimodt Nielsen Registrar President * Language of the case: English.