Opinion of the Advocate General — ECLI:EU:C:2022:847
Date: 2022-10-27
Language of the case: German
Subject matter: Agriculture and Fisheries;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation  C-522/21 – 1 
Case C-522/21 
Request for a preliminary ruling 
Date lodged: 
24 August 2021 
Referring court: 
Pfälzisches Oberlandesgericht Zweibrücken (Germany) 
Date of the decision to refer: 
18 August 2021 
Defendant and appellant: 
MS 
Applicant and respondent: 
Saatgut Treuhandverwaltungs GmbH 
  
[…] 
Pfälzisches Oberlandesgericht 
Zweibrücken 
(Palatine Higher Regional Court, 
Zweibrücken, Germany) 
Order 
In the case of 
MS, […] Thür 
– defendant and appellant – 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 18. 8. 2021 – CASE C-522/21 
 
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v 
Saatgut Treuhandverwaltungs GmbH, […] Bonn 
– applicant and respondent – 
[…] 
concerning compensation due to infringement of a plant variety right 
the 4th Civil Chamber of the Palatine Higher Regional Court, Zweibrücken […] 
[composition of the panel of judges] made, on 18 August 2021, the following 
order: 
I. The proceedings are stayed. 
II. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to the first paragraph, point (b), and 
the second paragraph of Article 267 of the Treaty on the Functioning of the 
European Union: 
Is Article 18(2) of Commission Regulation (EC) No 1768/95 of 24 July 
1995 implementing rules on the agricultural exemption provided for in 
Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant 
variety rights, in so far as a minimum level of compensation of quadruple 
the licence fee can be claimed under the conditions laid down therein, 
compatible with Council Regulation (EC) No 2100/94 of 27 July 1994 on 
Community plant variety rights (‘the Basic Regulation’), in particular with 
the first sentence of Article 94(2) of that regulation? 
Grounds: 
I. 
The parties to the proceedings are in dispute, in so far as remains relevant at 
second instance, regarding compensation under Community law on plant varieties 
for unauthorised subsequent planting of harvested material. 
The applicant, an organisation, in the form of a limited liability company, of 
holders of plant variety rights, has been tasked by those holders with safeguarding 
their property rights, and in particular with enforcing entitlements to information 
and payment, in its own name. 
The defendant is a farmer against whom the applicant brought an action at first 
instance seeking, inter alia, information on the planting of harvested material 
carried out by him in respect of the winter barley variety ‘KWS Meridian’, which 
is protected under Community law. In those proceedings, the defendant provided, 
SAATGUT-TREUHANDVERWALTUNG 
 
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for the first time, information on the extent of the processing of the 
abovementioned seeds in the previous years as follows: 
- 2012/2013 marketing year 24.50 decitonnes (dt = 100 kg) 
- 2013/2014 marketing year 26.00 dt 
- 2014/2015 marketing year 34.00 dt 
- 2015/2016 marketing year 45.40 dt 
After the defendant subsequently paid, in respect of the 2015/2016 marketing year 
in accordance with Article 94(1) of the Basic Regulation (Council Regulation 
(EC) No 2100/94 of 27 July 1994), as compensation (reasonable compensation) 
the customary simple licence fee (‘Z-Lizenzgebühr’ [licence fee for certified seed] 
= EUR 11.95 per dt) in the amount of EUR 537.75 (EUR 11.95 x 45 dt), which 
would have been payable in the case of licensed production (see CJEU, judgment 
of 9 June 2016, C-481/14, Hansson, […] [reference in national literature], 
[EU:C:2016:419]) the applicant sought, by letter from its lawyer of 26 November 
2019, payment of further compensation in the amount of EUR 2 151.00 (lump 
sum of quadruple the licence fee for the 2013/2014 and 2014/2015 marketing 
years, offsetting in each case the subsequently paid simple licence fee of 
EUR 310.70 and EUR 406.30, respectively = EUR 932.10 and EUR 1 218.90) and 
in the amount of EUR 1 613.25 (lump sum of quadruple the licence fee for the 
2015/2016 marketing year, offsetting the simple licence fee) in accordance with 
Article 94(2) of the Basic Regulation (Council Regulation (EC) No 2100/94 of 
27 July 1994), read in conjunction with Article 18(2) of Commission 
(Implementing) Regulation (EC) No 1768/95 of 24 July 1995. 
At first instance, the defendant contested the entitlement to that further claim for 
payment. 
He took the view that, by paying the normally payable licence fee instead of the 
fee for the planting of harvested material (Article 5(5) of Commission 
(Implementing) Regulation (EC) No 1768/95 of 24 July 1995, read in conjunction 
with Commission (Implementing) Regulation (EC) No 2605/98 of 3 December 
1998), the damage caused to the holder of the plant variety right by his unlawful 
conduct has been sufficiently compensated. Additional ‘punitive damages’ 
established on a lump-sum basis are not compatible with the case-law of the Court 
of Justice. 
By judgment concluding the proceedings (Schlussurteil) of 4 December 2020 […] 
[composition of the panel of judges], [the Landgericht (Regional Court)] 
Kaiserslautern upheld the forms of order sought most recently, with the exception 
of an amount of EUR 0.25. As grounds for the award of further compensation, the 
judgment cites the clear wording of Article 18(2) of Commission Regulation (EC) 
No 1768/95 of 24 July 1995. 
REQUEST FOR A PRELIMINARY RULING OF 18. 8. 2021 – CASE C-522/21 
 
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The defendant’s appeal, to which there can be no objection from a procedural 
point of view, is directed against that judgment and, by that appeal, he pursues his 
objective of seeking the rejection of the lump-sum compensation, together with 
interest, in respect of which the action had been brought. 
The defendant takes the view that Article 18(2) of Commission (Implementing) 
Regulation (EC) No 1768/95 of 24 July 1995 is incompatible with the 
requirements of Article 94(2) of the Basic Regulation (Council Regulation (EC) 
No 2100/94 of 27 July 1994) and must therefore be annulled by the Court of 
Justice of the European Union. According to the defendant, this is because 
Article 94(2) of the Basic Regulation (Council Regulation (EC) No 2100/94 of 
27 July 1994) is not to be understood as permitting the establishment of punitive 
damages on a lump-sum basis –in the case in the main proceedings, in the form of 
quadruple the licence fee – for the benefit of the holder of the plant variety right. 
Rather, the extent of the compensation payable under the first sentence of 
Article 94(2) of the Basic Regulation (Council Regulation (EC) No 2100/94 of 
27 July 1994) must correspond as closely as possible to the damage actually and 
certainly suffered by the holder of the plant variety right as a result of the 
infringement. 
By contrast, the applicant defends the Regional Court’s decision, which it 
considers to be correct. 
According to its legal appraisal, Article 18(2) of Commission (Implementing) 
Regulation (EC) No 1768/95 of 24 July 1995 does not infringe the requirements 
of Article 94(2) of the Basic Regulation (Council Regulation (EC) No 2100/94 of 
27 July 1994), and the provision is also in line with the case-law of the Court of 
Justice of the European Union. The establishment of a minimum level of 
compensation on a lump-sum basis in the amount of quadruple the licence fee for 
the production of propagating material of the protected variety constitutes a 
necessary and reasonable balance of interests in view of the repeated and 
intentional unlawful infringement of the rights of the holder of the plant variety 
right, as is required for such compensation. 
II. 
The present Chamber stays the appeal proceedings pending before it and asks the 
Court of Justice of the European Union to deliver a preliminary ruling pursuant to 
the first paragraph, point (b), and the second paragraph of Article 267 TFEU on 
the question set out in paragraph II. of the operative part of the present order. 
According to the appellate court’s legal assessment, the decision on the 
defendant’s appeal hinges exclusively on whether or not Article 18(2) of 
Commission (Implementing) Regulation (EC) No 1768/95 of 24 July 1995 is 
valid. 
A minimum level of compensation established on a lump-sum basis in the amount 
of quadruple the licence fee, as provided for by the Commission in that rule, could 
SAATGUT-TREUHANDVERWALTUNG 
 
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be in breach of the main principles of the first sentence of Article 94(2) of the 
Basic Regulation (Council Regulation (EC) No 2100/94 of 27 July 1994) and 
could therefore be invalid. 
It could be argued in that respect that Article 94(1) of the Basic Regulation 
(Council Regulation (EC) No 2100/94 of 27 July 1994) already serves to 
compensate the advantage derived by the infringer (farmer who is not privileged 
as provided for in Article 14 of that regulation), in an amount corresponding to the 
simple licence fee normally payable (reasonable compensation). In that context, 
the first sentence of Article 94(2) of the Basic Regulation (Council Regulation 
(EC) No 2100/94 of 27 July 1994) could be understood to mean that, in the event 
of an intentional or negligent infringement, the holder of a plant variety right 
should be entitled to compensation for further damage (only) if he or she can 
demonstrate it in concrete terms. 
The referring court takes the view that the case-law of the Court of Justice of the 
European Union to date indicates that the legislative establishment of a minimum 
level of compensation on a lump-sum basis – in line with the provision made in 
Article 18(2) of Commission (Implementing) Regulation (EC) No 1768/95 of 
24 July 1995 – is not compatible with the first sentence of Article 94(2) of the 
Basic Regulation (Council Regulation (EC) No 2100/94 of 27 July 1994) (see 
CJEU, judgment of 9 June 2016 – C-481/14, Hansson v Jun[g]pflanzen 
Grünewald GmbH […] [source in the national legal literature] [EU:C:2016:419], 
paragraphs 32-34; CJEU, judgment of 5 July 2012, C-509/10, Saatgut v 
Geistbeck, […] [source in the national legal literature] [EU:C:2012:416,] 
paragraph 39). 
Therefore, the question set out in paragraph II. of the operative part of the present 
order arises, the answer to which is a matter reserved for the Court of Justice of 
the European Union. This is because an implementing regulation adopted under an 
enabling provision in a basic regulation may not derogate from the provisions of 
that regulation and, in the event of such a contradiction, must be annulled (see 
judgment of the Court of Justice of the European Union of 2 March 1999, 
C-179/97, Kingdom of Spain v Commission of the European Communities 
[EU:C:1999:109]). 
[…] 
[signatures and certification]