Judgment — ECLI:EU:T:2017:830
Date: 2017-11-23
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Intellectual, industrial and commercial property;Plant varieties
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Italy

summary of those arguments, without any reference to potential comprehension issues. 41 The Court will examine at a later stage whether it is appropriate to rule on the intervener’s arguments alleging inadmissibility of Annexes 15 to 18, presented by the applicant for the first time in its reply, and of the additional evidence submitted by the applicant at the hearing before the Court. Substance The applicant’s first head of claim, seeking annulment of the contested decision 42 In support of its action, the applicant puts forward three pleas in law. In the first place, it claims, in essence, that the Board of Appeal was wrong to conclude that variety M 02205 was distinct from reference variety KW 043. In its opinion, the contested decision was adopted in breach of Articles 6 and 7 of Regulation No 2100/94, on the ground that the essential requirement that a candidate plant variety for a Community plant variety right must be ‘distinct’ from reference varieties was not satisfied in the present case. In the second place, the applicant is of the opinion that the Board of Appeal breached the principles of legal certainty and protection of legitimate expectations when it considered that the CPVO was entitled to change retroactively the characteristics used to justify the grant of a Community plant variety right. In that respect, the applicant also claims that the Board of Appeal erred in law when interpreting Article 87(4) of Regulation No 2100/94. 43 In the third place, in the context of its third plea in law, the applicant submits, in essence, that the contested decision was adopted in breach of the principle of transparency and the right of access to documents. In that regard, it puts forward three grounds of challenge. 44 First, in the light of the last and penultimate versions of the comparative distinctness report, the applicant argues that the obligation to base the comparison of a candidate variety with reference varieties on data derived from comparative growing trials was breached in the present case. 45 Secondly, the applicant maintains that the examination procedure was not conducted in a transparent manner since, during the administrative procedure and despite several requests, the CPVO had not communicated to the applicant the documents concerning the results of comparative growing trials performed by the Examination Office in 2003 and 2004, that would have enabled the applicant to check whether the obligation referred to in paragraph 44 above had been complied with. For the same reasons, the applicant alleges infringement of the right of access to documents. 46 Thirdly, the applicant takes issue, in essence, with the Board of Appeal for failing to carry out the necessary verifications, despite the evidence adduced by the applicant with regard to the errors made by the Examination Office, and for simply accepting the oral statements of Mr C. that comparative growing trials had taken place in 2003 and 2004. In so doing, the Board of Appeal failed to comply with the requirement of impartiality derived from Article 41(1) of the Charter of Fundamental Rights of the European Union. 47 The Court must examine, in the first place, the applicant’s third plea in law and, more particularly, the first and third grounds of challenge in support of that plea. 48 As has been noted in paragraph 44 above, in the context of the first ground of challenge, the applicant claimed, in particular, that the last and penultimate updated versions of the comparative distinctness report showed that the distinctness of variety M 02205 had been based, in part, on data collected outside the comparative growing trials of 2003 and 2004 — contrary to the applicable rules that the comparison of a candidate variety with reference varieties must be based only on data derived from comparative growing trials. 49 More specifically, the applicant has doubts as to the source of the characteristics included in these latter versions of the comparative distinctness report, concerning variety KW 043. In that respect, the applicant submits that a detailed examination of the notes of expression mentioned in these latter versions, concerning variety KW 043, shows that the notes of expression are identical to the data recorded in the official variety description of KW 0433, as established in 2002 following the comparative growing trials of 2000 and 2001. However, according to the applicant, such a coincidence is highly unlikely, given the effect that seasons can have on phenotypic expression. 50 The applicant therefore concludes that the data in the last and penultimate versions of the comparative distinctness report, concerning reference variety KW 043, did not come from comparative growing trials but was sourced from the official variety description of that reference variety, as established at the time of the Community plant variety right for that variety. 51 The applicant does not dispute the fact that comparative growing trials took place in 2003 and 2004. However, in the context of its third ground of challenge, it takes issue, inter alia, with the CPVO for simply accepting, despite the evidence adduced by the applicant, the oral statements of Mr C., the expert from the Examination Office, without proceeding to any verification of the errors allegedly made by the office. 52 The CPVO disputes the applicant’s arguments. First of all, it argues, in essence, that the applicant claims that the Examination Office did not compare the candidate variety directly with the reference varieties. In that regard, the CPVO states that, contrary to the applicant’s assertions, at the hearing before the Board of Appeal, the expert from the Examination Office who conducted the technical analysis in the present case had confirmed that the examination of variety M 02205 had been performed in accordance with the Protocol of 15 November 2001 and that the candidate variety had been compared with all reference varieties during two consecutive growing cycles. 53 In addition, the CPVO submits that the Board of Appeal had no reason to question the reliability of Mr C.’s statements at the hearing before it regarding the conduct of the technical examination and, in particular, the confirmation that variety M 02205 had been compared directly, in the comparative growing trials, with all other sugar beet varieties of common knowledge. 54 The intervener, in turn, maintains, in essence, that the applicant, without adducing any evidence to that effect, claimed that the data recorded in the last version of the comparative distinctness report, concerning variety KW 043, did not come from comparative growing trials carried out in 2003 and 2004. The intervener argues that, according to the judgment of 21 May 2015, Schräder v CPVO (C‑546/12 P, EU:C:2015:332, paragraph 57), it is for the party requesting a declaration of nullity to adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the grant of the Community plant variety right at issue. Accordingly, in its view, the applicant failed to adduce the evidence that it was required to adduce. 55 In that respect, first of all, it must be recalled that, under Article 20(1)(a) of Regulation No 2100/94, the CPVO must declare a Community plant variety right null and void if it is established that the conditions laid down in Articles 7 or 10 were not complied with at the time of the Community plant variety right. Moreover, under Article 7(1) of the regulation, ‘a variety shall be deemed to be distinct if it is clearly distinguishable, by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application determined pursuant to Article 51.’ 56 Furthermore, it must be pointed out that the Court has stated, in that regard, that the conditions relating, in particular, to distinctness are, under Article 6 of the regulation, a prerequisite for the grant of a Community plant variety right. Therefore, in the absence of those conditions, the right granted is unlawful, and it is in the public interest that it be declared null and void (judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraph 52). 57 The Court has also ruled that the CPVO has a broad discretion concerning the declaration of nullity of a plant variety right for the purposes of Article 20 of Regulation No 2100/94. Therefore, only where there are serious doubts that the conditions laid down in Articles 7 or 10 of that regulation had been met on the date of the examination provided for under Articles 54 and 55 of that regulation can a re-examination of the protected variety by way of nullity proceedings under Article 20 of Regulation No 2100/94 be justified (see, to that effect, judgment of 21 May 2015, Schräder v CPVO (C‑546/12 P, EU:C:2015:332, paragraph 56). 58 In that context, a third party seeking a declaration of nullity of a plant variety right must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the plant variety right following the examination provided for in Articles 54 and 55 of that regulation (see, to that effect, judgment of 21 May 2015, Schräder v CPVO (C‑546/12 P, EU:C:2015:332, paragraph 57). 59 It was thus for the applicant to adduce, in support of its request for nullity, evidence or facts of sufficient substance to raise serious doubts in the mind of the Board of Appeal as to the legality of the plant variety right granted in the present case. 60 Consequently, the Court must examine whether the elements adduced by the applicant before the Board of Appeal, in that regard, were sufficient to raise serious doubts in the mind of the Board of Appeal and if, accordingly, they could justify a re-examination of variety M 02205 by means of nullity proceedings based on Article 20(1)(a) of Regulation No 2100/94. 61 In order to answer that question, first of all, it is necessary to ascertain the requirements imposed by the legislation at issue concerning the drafting of the notes of expression on which the findings as to whether or not a plant variety is distinct must be based. Next, it is necessary to examine whether the arguments put forward by the applicant in that regard could raise serious doubts in the mind of the Board of Appeal. Lastly, the Court must consider whether the Board of Appeal duly fulfilled its obligations in the face of such serious doubts. 62 First, with regard to the requirements imposed by the legislation at issue, it must be noted that, under Article 56(2) of Regulation No 2100/94, the conduct of any technical examination is to be performed in accordance with test guidelines issued by the Administrative Council and any instructions given by the CPVO. In that regard, it must be pointed out that the broad discretion enjoyed by the CPVO in the exercise of its functions cannot allow it to avoid the technical rules that regulate the conduct of the technical examinations without breaching the duty of good administration and its obligations of care and impartiality. In addition, the binding nature of those rules, including for the CPVO, is confirmed by Article 56(2) of Regulation No 2100/94, which requires that the technical examinations are carried out in accordance with those roles (judgment of 8 June 2017, Schniga v CPVO, C‑625/15 P, EU:C:2017:435, paragraph 79). 63 In that context, it must be observed that, in accordance with the abovementioned Article 56(2), the CPVO adopted the Protocol of 15 November 2001 with a view to establishing test guidelines governing the technical analysis and the conditions for registration of varieties coming within the sugar beet species Beta vulgaris L. ssp. Vulgaris var. altissima Döll. Under point III.2., headed ‘Material to be examined’, and point III.5., headed ‘Trial designs and growing conditions’, of the protocol, candidate varieties must be directly compared with reference varieties in growing trials to be carried out normally in at least two independent growing cycles. Moreover, in the contested decision, the Board of Appeal itself stressed the importance of compliance with that requirement, which, in its own words, is a condition precedent for the grant of a Community plant variety right (see paragraph 28 above). 64 It follows that the notes of expression in the comparative distinctness report, on the basis of which the distinctness of a candidate variety is established, have to correspond to the notes collected from comparative growing trials carried out in two independent growing cycles following the application for a Community plant variety right for the candidate variety. 65 Secondly, with regard to the arguments put forward by the applicant, the documents in the case file show that the applicant claimed, before the Board of Appeal, that the fact that the notes of expression given to variety KW 043 in the comparative distinctness report were identical to those in its official variety description supports the assumption that the notes were sourced from the official description and not from comparative growing trials carried out in 2003 and 2004, for the purpose of a Community plant variety right being granted for variety M 02205. Furthermore, by relying on concrete examples from other official variety descriptions, the applicant sought to show that the probability of recording the same notes for a sugar beet variety from year to year was very low. 66 In that regard, it must be observed that, as has been noted in paragraphs 18 and 19 above, although the applicant had requested, several times, access to the file concerning variety M 02205, including the results of the comparative growing trials of 2003 and 2004, the CPVO did not communicate those results to the applicant until 2 March 2015, that is to say, after the date of the Board of Appeal’s decision. Therefore, the applicant was clearly not in a position to rely on evidence other than that produced by it before the CPVO bodies, namely the comparison between the data in the comparative distinctness report and that recorded in the official variety descriptions for M 02205 and KW 043 respectively as well as, by way of illustration, data taken from other official variety descriptions. 67 In addition, the applicant was fully entitled to rely before the Board of Appeal on the series of errors in the comparative distinctness report, mentioned in paragraphs 5 to 15 above, which gave rise to a succession of corrections of that report and could also raise serious doubts in the mind of the Board of Appeal, at the very least, as to the reliability of the notes of expression corresponding to the characteristics included in the comparative distinctness report. Moreover, as pointed out, in essence, by the applicant before the Board of Appeal, the fact that the corrections were late was liable to reinforce those doubts. 68 In the light of the foregoing, the Court must find that the applicant adduced, before the Board of Appeal, factual elements of sufficient substance to raise serious doubts as to whether the data used for reference variety KW 043 was sourced from its official variety description. The Board of Appeal was thus required to verify whether that contention was well founded and draw the appropriate conclusions for the applicant’s action. 69 Moreover, it should be added that, in its replies to the written questions put by the Court, the CPVO recognised that the notes of expression relating to variety KW 043, as included in the last and penultimate versions of the comparative distinctness report, did not correspond to the data collected from the comparative growing trials of 2003 and 2004 but were sourced from the official variety description for KW 043. 70 Thirdly, with regard to whether the Board of Appeal duly fulfilled its obligations in the face of such serious doubts, in the first place, it is important to recall that the CPVO’s task is characterised by the scientific and technical complexity of the conditions governing the examination of applications for Community plant variety rights and, accordingly, the CPVO must be accorded a margin of discretion in carrying out its functions (see judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVOandSchniga, C‑534/10 P, EU:C:2012:813, paragraph 50 and the case-law cited). That discretion extends, inter alia, to verifying whether that variety has distinctive character for the purpose of Article 7(1) of Regulation No 2100/94 (see judgment of 8 June 2017, Schniga v CPVO, C‑625/15 P, EU:C:2017:435, paragraph 46 and the case-law cited). 71 In the second place, the CPVO, as a body of the European Union, is subject to the principle of sound administration, in accordance with which it must examine carefully and impartially all the relevant particulars of an application for a Community plant variety right and gather all the factual and legal information necessary to exercise its discretion. It must furthermore ensure the proper conduct and effectiveness of proceedings which it sets in motion (see judgment of 8 June 2017, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑625/15 P, EU:C:2017:435, paragraph 47 and the case-law cited). 72 In the third place, it should be recalled that Article 76 of Regulation No 2100/94 provides that ‘in proceedings before it [the CPVO] shall make investigations on the facts of its own motion, to the extent that they come under the examination pursuant to Articles 54 and 55.’ 73 Lastly, the Court has held that, under Article 51 of 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 CPVO (OJ 2009 L 251, p. 3), the provisions relating to proceedings before the CPVO apply mutatis mutandis to appeal proceedings (judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraph 46). 74 Thus, on the one hand, the principle of examination of the facts by the CPVO of its own motion also applies in proceedings before the Board of Appeal (judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraph 46). On the other hand, the Board of Appeal is also bound by the principle of sound administration, pursuant to which it is required to examine carefully and impartially all the relevant factual and legal information in the case before it. 75 In the present case, the Board of Appeal limited itself to stating its view on whether comparative growing trials took place in 2003 and 2004 — fact confirmed, according to the Board of Appeal, at the hearing before it by Mr C., the expert from the Examination Office. As is apparent from paragraph 25 above, however, the applicant’s statement of grounds of appeal before the Board of Appeal clearly shows that the applicant did not call into question, in general terms, the fact that comparative growing trials had actually taken place but, more specifically, whether the distinctive character of variety M 02205 had been established on the basis of results derived from those trials. Moreover, it should be noted that it is not apparent from the contested decision or the minutes of the hearing before the Board of Appeal whether Mr C. was questioned, at that hearing, on any other issue than that of the procedure usually followed by the Examination Office when comparing sugar beets. 76 Consequently, before such a claim, which the CPVO subsequently confirmed before the Court as being well founded, the declarations of the expert from the Examination Office confirming that comparative trials had taken place in 2003 and 2004 were clearly not sufficient for the Board of Appeal to find that the ‘distinctness’ requirement had been established on the basis of data that complied with the applicable technical rules, and dismiss the applicant’s appeal. 77 On the contrary, the Board of Appeal was required to use its broad investigative powers under Article 76 of Regulation No 2100/94, interpreted in the light of the case-law referred to in paragraph 74 above, to verify the source of the notes of expression of reference variety KW 043 in the last and penultimate versions of the comparative distinctness report and draw the appropriate conclusions. In fact, in accordance with the principle of sound administration, laid down in Article 41(1) of the Charter of Fundamental Rights, the Board of Appeal was required to examine carefully and impartially all the relevant particulars with a view to assessing the validity of the Community plant variety right at issue and to gather all the factual and legal information necessary to exercise that discretion (see, to that effect, judgment of 8 June 2017, Schniga v CPVO, C‑625/15 P, EU:C:2017:435, paragraph 84). 78 It was therefore for the Board of Appeal to ensure that it had, at the time of the adoption of the contested decision, all the relevant information — namely, more specifically, the results of the comparative growing trials of 2003 and 2004 — with a view to being able to assess, on the basis of relevant data, whether the finding of distinctness of variety M 02205, compared with reference variety KW 043, had been carried out in compliance with the technical rules applicable. 79 However, it must be noted that the CPVO admitted at the hearing before the Court that, at the time of adoption of the contested decision, the Board of Appeal did not have the results of the comparative growing trials of 2003 and 2004. The results were not sent to the CPVO until after the adoption of the contested decision. 80 It follows that, by failing properly to ensure that the distinctive character of variety M 02205, compared with the reference varieties, was established on the basis of data derived from the comparative growing trials of 2003 and 2004, the Board of Appeal did not duly fulfil its obligations. 81 That conclusion is not put in question by the arguments raised by the CPVO. 82 In the first place, in its replies to the written questions put by the Court, the CPVO relies on arguments relating, on the one hand, to the subsequent notes added to the ‘root length’ characteristic, stemming from the calculation method based on the so-called ‘least significant difference’ test presented for the first time before the Court, and, on the other hand, to the fact that, in any event, varieties M 02205 and KW 043 are unquestionably distinct, based on the results from the comparative growing trials of 2003 and 2004, in view of the ‘leaf blade colour’ characteristic. 83 In so far that those arguments concern the review of legality of the contested decision, suffice it to say that the legality of contested acts must be assessed only on the basis of the matters of fact and law on which they were adopted, with the result that the Court cannot accede to invitations by the CPVO, in short, to replace the grounds on which the contested decision is based (see judgment of 12 November 2013, North Drilling v Council, T‑552/12, not published, EU:T:2013:590, paragraph 25 and the case-law cited). In so far as the arguments concern the Court’s power to alter decisions, it should be pointed out that exercise of that power must, in principle, be limited to situations in which, after reviewing the Board of Appeal’s reasoning, the Court is in a position to determine, on the basis of the matters of fact and law as established, what decision the Board of Appeal was required to take (see judgment of 18 September 2012, Schräder v CPVO — Hansson (LEMON SYMPHONY), T‑133/08, T‑134/08, T‑177/08 and T‑242/09, EU:T:2012:430, paragraph 250 and the case-law cited). Since the Board of Appeal made no finding on the method of calculation based on the ‘least significant difference’ test or on the results from the comparative growing trials of 2003 and 2004, it is not for the Court to assess those arguments in the context of its power of alteration. 84 Furthermore, with regard to the ‘leaf blade colour’ characteristic, it must be observed that the CPVO’s argument contradicts its own previous finding — referred to in paragraph 8 above — that the ‘colour leaf blade’ characteristic was not relevant for the purpose of establishing the ‘distinctness’ requirement of the candidate variety. Accordingly, the CPVO’s arguments must be rejected in any event. 85 In the second place, the requirement referred to in paragraph 63 above cannot be put in question either by the CPVO’s argument that, for the sake of ‘consistency’, the notes in the comparative distinctness reports, with regard to the reference varieties, should be sourced from their official variety descriptions. 86 Therefore, the first and third grounds of challenge put forward in support of the third plea in law are well founded. Accordingly, the contested decision must be annulled, without it being necessary for the Court to take a view on the other grounds of challenge and pleas in law of the applicant in support of its first head of claim. The applicant’s second head of claim, seeking alteration of the contested decision 87 By its second head of claim, the applicant asks the Court to alter the Board of Appeal’s decision and declare Community plant variety right No EU 15118 null and void. 88 The CPVO and the applicant deny the possibility for the Court, in the present case, to alter the contested decision. In addition, the CPVO disputes even the Court’s competence to state its view on the applicant’s second head of claim. In its opinion, in so far as the finding of distinctness of a plant variety under Article 7 of Regulation No 2100/94 is of a scientific and technical complexity such as to justify a limit to the scope of judicial review, the applicant’s request for alteration of the contested decision must be declared inadmissible. 89 As a preliminary point, it must be noted that, in the light of the clear wording of Article 73(3) of Regulation No 2100/94, the Court is competent not only to annul, but also to alter, the contested decision. 90 On the substance, it should be recalled that the Court’s power to alter decisions does not have the effect of conferring on it the power to substitute its own assessment for that of a Board of Appeal of the CPVO, or to carry out an assessment on which that Board of Appeal has not yet adopted a position (see, by analogy, judgment of 21 July 2016, Apple and Pear Austria and Star Fruits Diffusion v EUIPO, C‑226/15 P, EU:C:2016:582, paragraph 67 and the case-law cited). 91 Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which, after reviewing the Board of Appeal’s reasoning, the Court is in a position to determine, on the basis of the matters of fact and law as established, what decision the Board of Appeal was required to take (see, to that effect, judgment of 18 September 2012, LEMON SYMPHONY, T‑133/08, T‑134/08, T‑177/08 and T‑242/09, EU:T:2012:430, paragraph 250 and the case-law cited). 92 In the present case, the Board of Appeal clearly did no more than state its view on whether comparative growing trials took place in 2003 and 2004. By contrast, the Board of Appeal failed to examine the applicant’s contention that the distinctive character of variety M 02205 was established on the basis of data in respect of reference variety KW 043 sourced from its official variety description, and not on the basis of results from the comparative growing trials carried out in 2003 and 2004. 93 Having regard to the foregoing, the Court must find that it cannot make that assessment itself. Consequently, the case must be remitted to the Board of Appeal in order to allow the latter to rule, in the light of the above reasons, on the applicant’s appeal against the CPVO’s decision to reject its request for nullity. The applicant’s second head of claim, seeking alteration of the contested decision, must therefore be rejected. 94 In the light of those considerations, it is not necessary to rule on whether or not Annexes 15 to 18, presented by the applicant for the first time in its reply, and the additional evidence submitted by the applicant at the hearing before the Court are admissible. Costs 95 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. 96 In the present case, the CPVO and the intervener have been largely unsuccessful. Since the applicant has applied only for the CPVO to pay the costs, it is appropriate, first, to order the CPVO to bear its own costs and pay those incurred by the applicant and, secondly, to find that the intervener shall bear its own costs. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 26 November 2014 (Case A 010/2013); 2. Dismisses the action as to the remainder; 3. Orders the CPVO to bear its own costs and pay those incurred by Aurora Srl; 4. Orders SESVanderhave NV to bear its own costs. Gratsias Dittrich Xuereb Delivered in open court in Luxembourg on 23 November 2017. E. Coulon D. Gratsias Registrar President * Language of the case: English.