Opinion of the Advocate General — ECLI:EU:C:2014:2373
Date: 2014-11-13
Language of the case: German
Subject matter: Agriculture and Fisheries;Intellectual, industrial and commercial property;Plant varieties
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary — Judgment of the Court (First Chamber), 21 May 2015 1. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Appeal brought against a decision of the Community Plant Variety Office and referred to the Board of Appeal — Examination of the facts by the Community Plant Variety Office of its own motion (Council Regulation No 2100/94, Art. 54, 55, 72 and 76; Commission Regulation No 874/2009, Art. 51) 2. Agriculture — Uniform legislation — Protection of plant varieties — Declaration annulling a right improperly granted — Discretion of the Community Plant Variety Office — Re-examination of the protected variety — Conditions — Serious doubts as to the legality of the grant of the right (Council Regulation No 2100/94, Arts 6, 7, 10, 20(1), 54 and 55) 3. Agriculture — Uniform legislation — Protection of plant varieties — Declaration annulling a right improperly granted — Application to initiate nullity proceedings — Burden of proof on the applicant (Council Regulation No 2100/94, Art. 20(1)(a), 54, 55 and 59) 4. Appeals — Grounds — Inadequate or contradictory grounds — Scope of the obligation to state reasons — Reliance by the General Court on implied reasoning — Lawfulness — Conditions (Statute of the Court of Justice, Arts 36 and 53, first para.; Rules of Procedure of the General Court, Art. 81) 5. Agriculture — Uniform legislation — Protection of plant varieties — Procedural provisions before the Community Plant Variety Office — Application of the principles of procedural law generally recognised in the Member States — Application for measures of inquiry (Council Regulation No 2100/94, Art. 81) 6. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the facts put before the General Court — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 7. Agriculture — Uniform legislation — Protection of plant varieties — Conditions for granting the right — Distinctive character of the plant variety — Criteria for assessment (Council Regulation No 2100/94, Art. 7) 1. The wording of Article 76 of Regulation No 2100/94 on Community plant variety rights limits the application of the principle that the Community Plant Variety Office is to examine the facts of its own motion to those which are the subject of examination under Articles 54 and 55 of that regulation. Under Article 51 of Regulation No 874/2009 laying down implementing rules for the application of Regulation No 2100/94 as regards proceedings before the Community Plant Variety Office, the provisions relating to proceedings before that Office apply mutatis mutandis to appeal proceedings. Thus, the principle of examination of the facts by the Community Plant Variety Office of its own motion also applies in proceedings before the Board of Appeal. (see paras 45, 46) 2. Under Article 20(1) of Regulation No 2100/94 on Community plant variety rights, the Community Plant Variety Office (CPVO) must declare the Community plant variety right null and void if it has been established that the conditions laid down in Articles 7 and 10 of that regulation have not been met on the date the right was granted. In that regard, the conditions relating, in particular, to distinction and novelty are, under Article 6 of that 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. Furthermore, in the procedure for granting protection, 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. Thus, the CPVO has a wide discretion concerning annulment of a plant variety right for the purposes of Article 20 of that regulation, in so far as the protected variety underwent that examination. Therefore, only where there are serious doubts that the conditions laid down in Articles 7 or 10 of Regulation No 2100/94 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 that regulation be justified. (see paras 51, 52, 55, 56) 3. It is true that a declaration annulling a right improperly granted can also be made in the interests of a third party, especially where that party made an application for a plant variety right which was refused because the candidate variety was not distinguishable from the improperly protected variety. However, that cannot justify allowing a third party to apply, in all circumstances and without specific reasons, for the annulment of that protection after the proceedings granting that right, and after the expiry of the time-limits laid down in Article 59 of Regulation No 2100/94 on Community plant variety rights for third parties to lodge their objections. A third party seeking annulment of a plant variety right must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the grant of a plant variety right following the examination provided for in Articles 54 and 55 of Regulation No 2100/94. Consequently, in an action brought against the refusal of an application for annulment of a plant variety right, it is for the appellant to demonstrate, on the facts and evidence relating to the substantive and technical examination which he adduced before the Community Plant Variety Office, that that Office was required to carry out the review provided for under Article 20(1)(a) of that regulation. (see paras 53, 54, 57, 58) 4. See the text of the decision. (see para. 72) 5. Article 81 of Regulation No 2100/94 on Community plant variety rights stipulates that the principles of procedural law generally recognised in the Member States apply to proceedings before the Community Plant Variety Office (CPVO). Therefore, pursuant to the principles laid down in ILFO v High Authority (51/65, EU:C:1966:21), according to which a request for the adoption of measures of inquiry made by a party cannot be accepted if that party offers no evidence whatsoever to justify such measures, the appellant must present to the Board of Appeal of the CPVO prima facie evidence in order to secure from it the adoption of a measure of enquiry. That case-law applies by analogy to the Board of Appeal on the ground that it is a quasi-judicial body. (see paras 73, 75, 76) 6. See the text of the decision. (see para. 81) 7. The examination of the distinctive character of a plant variety necessarily presupposes the existence of reference plant varieties. Therefore, it is on the basis of whether such varieties exist that the ‘attitude of shoots’ characteristic must be examined, and that it must play a more, or less, decisive role with regard to the distinctive character of the plant variety to be protected. In addition, the adaptation of the description of the ‘attitude of shoots’ characteristic does not call into question the protection granted to a given variety. In so far as that characteristic is determined by a comparison with other plant varieties, a refinement of the description is inevitable where other plant varieties emerge. (see paras 128, 130)