Opinion of the Advocate General — ECLI:EU:C:2019:758
Date: 2019-09-18
Language of the case: Spanish
Subject matter: Agriculture and Fisheries;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary Minutes, paragraphs 859 to 876). 16 See, in that regard, in particular, Records of the 1991 Diplomatic Conference, Summary Minutes, paragraphs 1024 and 1534.2. 17 Records of the 1991 Diplomatic Conference, Summary Minutes, paragraphs 1005 to 1030. 18 Records of the 1991 Diplomatic Conference, Summary Minutes, paragraphs 1529.2, 1529.3 and 1543. See, also, the Report of the Working Group which is included in the conference documents (Records of the 1991 Diplomatic Conference, p. 145 to 148). 19 For example, in the case giving rise to the judgment of 20 October 2011, Greenstar-Kanzi Europe (C‑140/10, EU:C:2011:677, paragraph 10), the agreements between the breeder of the protected variety of apple trees and the members of the marketing network of fruit from that variety of trees involved ‘specifications’ containing restrictions on, inter alia, the production of those fruits. 20 Records of the 1991 Diplomatic Conference, Summary Minutes, paragraph 1534.3. 21 That conclusion is without prejudice to the right of the holder, to which CVVP, Mr Martínez Sanchís and the Commission refer, to oppose the acts set out in Article 13(2) of Regulation No 2100/94 done in respect of harvested material, even where the conditions set out in paragraph 3 of that article have not been met, provided that the harvested material can be used for further reproduction (see, in that regard, UPOV Council, ‘Explanatory Notes on Acts in Respect of Harvested Material under the 1991 Act of the UPOV Convention’, 24 October 2013 (‘the Explanatory Notes on Acts in Respect of Harvested Material’), p. 4, paragraph 3). In such circumstances, the harvested material amounts, in reality, to ‘variety constituents’ as defined in Article 5(3) of that regulation. The rights of the holder of a Community plant variety right are, however, limited by Article 14(1) of that regulation according to which ‘notwithstanding Article 13(2), and for the purposes of safeguarding agricultural production, farmers are authorized to use for propagating purposes in the field, on their own holding the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety, which is covered by a Community plant variety right’. In the present case, CVVP stated that the fruits of the Nadorcott variety cannot be used for the generation of new trees of that variety, which can only be obtained by asexual reproduction techniques such as grafting. 22 That provision implements the obligation placed on the contracting parties to the UPOV Convention under Article 13 thereof to provide ‘measures designed to safeguard the interests of the breeder during the period between the filing or the publication of the application for the grant of a breeder’s right and the grant of that right’. 23 See, to that effect, with regard to the corresponding provision in Article 14(2) of the UPOV Convention, UPOV Council, ‘Guidance for the Preparation of Laws Based on the 1991 Act of the UPOV Convention’, 6 April 2017 (‘UPOV Council Guidance’), p. 57. 24 See, also, in that regard, Records of the 1991 Diplomatic Conference, Summary Minutes, paragraphs 915 to 934. 25 In other words, CVVP considers that the payment of an equitable remuneration by any person who has effected an act referred to in Article 13(2) of Regulation No 2100/94 in respect of the variety constituents covered by the application for a plant variety right does not exhaust the rights of the holder over the variety constituents or the harvested material derived therefrom (see, in that regard, footnote 8 of this Opinion). 26 The Commission, whilst arguing in favour of this single approach in its written observations, stated at the hearing that it only advocates this approach in the alternative. 27 See points 35 and 40 of this Opinion. 28 That system is based on the one provided for in Article 13 of the UPOV Convention. With regard to the origin of that provision, I would observe that provisional protection, having first been left to the discretion of the States Parties to the UPOV Convention, constitutes an obligation on their part only since its revision in 1991. The preparatory work which led to that revision does not shed any light on the relationship between provisional protection, on the one hand, and the secondary right, also established at that time, on the other. 29 Some comparison may be made between the scheme established in Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10). In accordance with that provision, Member States may provide for an exception to the reproduction right of the rightholder of any copyright for the purpose of making copies for private use, on condition that the rightholder receives fair compensation. In the judgment of 21 April 2016, Austro-Mechana (C‑572/14, EU:C:2016:286, paragraph 48), the Court held that, where a Member State provides for such an exception, the making of copies for private use, despite requiring the payment of fair compensation to the rightholder of the copyright, constitutes an act authorised by national law. 30 That provision incorporates the content of Article 19(2) of the UPOV Convention. 31 See Article 63(1) of the Convention on the Grant of European Patents, signed in Munich on 5 October 1973, as revised in 2000. 32 Explanatory Notes on Acts in Respect of Harvested Material, p. 4, paragraph 4, and UPOV Council Guidance, p. 57. Although not binding, those documents provide useful guidance for the interpretation of the UPOV Convention and corresponding provisions of Regulation No 2100/94. 33 Such acts are also considered to be unauthorised where they are not undertaken in accordance with the conditions and limitations established by the breeder’s authorisation pursuant to Article 14(1)(b) of the UPOV Convention. See UPOV Council Guidance, p. 57. It seems to me, however, to follow from applying, by analogy, the reasoning followed in the judgment of 20 October 2011, Greenstar-Kanzi Europe (C‑140/10, EU:C:2011:677, paragraphs 41 to 43) that only the breach of a condition or limitation relating directly to the essential features of the Community plant variety right may affect the consent of the rightholder for the purposes of applying Article 13(3) of Regulation No 2100/94. 34 See, to that effect, Würtenberger, G., van der Kooij, P., Kiewiet, B. and Ekvad, M., European Union Plant Variety Protection, op. cit., p. 198.