Judgment — ECLI:EU:C:2013:665
Date: 2013-10-17
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Agriculture and Fisheries;Intellectual, industrial and commercial property;Approximation of laws;Plant health legislation;Patents
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Eighth Chamber), 17 October 2013 1. Approximation of laws — Uniform legislation — Industrial and commercial property — Patent right — Supplementary protection certificate for plant protection products — Conditions for obtaining — Obtaining an emergency marketing authorisation for the product as a plant protection product — Issue of a supplementary certificate for a plan protection product which had obtained an emergency marketing authorisation in accordance with Article 8(4) of Directive 91/414 — Unlawful (European Parliament and Council Regulation No 1610/96, Art. 3(1)(b); Council Directive 91/414, Art. 8(4)) 2. Approximation of laws — Uniform legislation — Industrial and commercial property — Patent right — Supplementary protection certificate for plant protection products — Conditions for obtaining — Submission of an application for a supplementary protection certificate before the date on which a marketing authorisation for the plant protection product was obtained pursuant to Article 3(1)(b) of Regulation No 1610/96 — Not permissible (European Parliament and Council Regulation No 1610/96, Arts 3(1)(b) and 7(1)) 1. Article 3(1)(b) of Regulation No 1610/96 concerning the creation of a supplementary protection certificate for plant protection products must be interpreted as precluding the issue of a supplementary protection certificate for a plant protection product in respect of which an emergency marketing authorisation has been issued under Article 8(4) of Directive 91/414 concerning the placing of plant protection products on the market, as amended by Directive 2005/58. Indeed, it is not possible to apply Article 3(1)(b) of Regulation No 1610/96 to an emergency marketing authorisation, which is restricted to products which do not comply with the requirements of Article 4 of Directive 91/414 and in respect of which that directive does not require a prior scientific evaluation of the risks. (see paras 37, 38, operative part 1) 2. Articles 3(1)(b) and 7(1) of Regulation No 1610/96 concerning the creation of a supplementary protection certificate for plant protection products must be interpreted as precluding an application for a supplementary protection certificate being lodged before the date on which the plant protection product has obtained the marketing authorisation referred to in Article 3(1)(b) of that regulation. The grant of that certificate requires that the four cumulative conditions set out in Article 3(1) of Regulation No 1610/96 be met. That provision provides, essentially, that a supplementary protection certificate may be granted only if, at the date of the application, the plant protection product is protected by a basic patent in force and has not already been the subject of a certificate. Since Article 3(1) of Regulation No 1610/96 expressly requires each of those conditions to be met on the date at which the application for a supplementary protection certificate is lodged, an application for such a certificate can validly be made only after a valid marketing authorisation has come into being. Moreover, that interpretation is supported by the terms of Article 7(1) of Regulation No 1610/96, from which it is clear that the period for making an application for a supplementary protection certificate starts to run on the date on which the authorisation referred to in Article 3(1)(b) of that regulation to place the product on the market as a plant protection product was granted. (see paras 42-45, operative part 2)