Opinion of the Advocate General — ECLI:EU:C:2006:97
Date: 2006-02-09
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Intellectual, industrial and commercial property;Plant varieties
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Agriculture – Uniform laws – Protection of plant varieties – Article 14(3) of Regulation No 2100/94 – Remuneration of the holder of a Community plant variety right (Council Regulation No 2100/94, Art. 14(3); Commission Regulation No 1768/95, Art. 5(2)) 2. Agriculture – Uniform laws – Protection of plant varieties – Article 14(3) of Regulation No 2100/94 – Remuneration of the holder of a Community plant variety right (Council Regulation No 2100/94, Art. 14(3); Commission Regulation No 1768/95, Art. 5(4) and(5)) 3. Agriculture – Uniform laws – Protection of plant varieties – Article 14(3) of Regulation No 2100/94 – Remuneration of the holder of a Community plant variety right (Commission Regulation No 1768/95, Art. 5(5)) 1. In the event of recourse to the agricultural exemption referred to in Article 14(3) of Regulation No 2100/94 on Community plant variety rights, without prejudice to the assessment made by the national court of the other circumstances relevant to each of the main proceedings, a flat-rate remuneration of 80% of the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area, does not satisfy the condition that remuneration, in the absence of a contract or of agreements concerning that remuneration, has to be ‘sensibly lower’ than the amount charged for the licensed production of that material within the meaning of Article 5(2) of Regulation No 1768/95 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94, as amended by Regulation No 2605/98. (see para. 29, operative part 1) 2. The criteria for determining the remuneration to be paid to the holder of a Community plant variety right are set out in Article 5(4) and (5) of Regulation No 1768/95 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94, as amended by Regulation No 2605/98. Those criteria, which may be the result of an agreement between organisations of holders and of farmers, have no retroactive effect but they may serve as a guide for the calculation of that remuneration with respect to planting carried out before the entry into force of Regulation No 2605/98. Furthermore, in order for such an agreement concluded between organisations of farmers and of holders, concerning the remuneration of the latter, to be used as a guideline as regards all its parameters, that agreement must have been notified to the Commission and published in the Official Bulletin of the Community Plant Variety Office and that is so even if it was concluded before the date on which Regulation No 2605/98 entered into force. Such an agreement may provide for a rate of remuneration different from that laid down, in the alternative, in Article 5(5) of Regulation No 1768/95, as amended by Regulation No 2605/98. (see paras 37, 43, operative part 2-3) 3. In the absence of an applicable agreement between organisations of holders of a Community plant variety right and of farmers, the remuneration of a holder has to be established, pursuant to Article 5(5) of Regulation No 1768/95 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94, as amended by Regulation No 2605/98, at 50% of the amounts charged for the licensed production of propagating material, that amount being fixed and constituting neither an upper limit nor a lower limit. (see para. 47, operative part 4)