Information;Judgment — ECLI:EU:T:2025:895
Date: 2025-09-24
Language of the case: English
Court formation: Third Chamber
Procedure: Action for annulment - unfounded

summary in the last paragraph of Exhibit 3 which it adduced as Annex B.5, and according to which the two varieties at issue were being ‘tested widely in Australia’. That observation contradicts the Board of Appeal’s conclusion in paragraph 70(iv) of the contested decision that Exhibit 3 did not refer to testing in Australia. 116 The intervener disputes the arguments of the applicant and of the CPVO. 117 First, the applicant does not refer to any specific evidence concerning the assessment and the further trials in the reports which make up Exhibit 3 or in other evidence. In that regard, the intervener correctly points out that it is apparent from the declarations of Mr Cripps, Mr Allan Price and Mr Atherton (Exhibits 15, 17 and 19) regarding specific sales to commercial nurseries from 1987 to 1989 that there was no restriction on use to testing purposes. Indeed, it is precisely that context which shows that there was nothing demonstrating that the varieties were released with a view to carrying out further trials. 118 On the contrary, the report adduced as Exhibit 3 contains passages which indicate that research was no longer ongoing when that report was published in 1988, since it presents the Pink Lady and Sundowner varieties as past achievements and models for subsequent developments (hybridisation). In that regard, Appendix 1 to that report states that what is concerned are varieties ‘already produced’ from the breeding programme, which are among the apple varieties ‘which have been released’ from the breeding programme (‘…varieties already produced from the breeding programme such as Pink Lady and Sundowner … There are no new export apple varieties which can be grown in the Australian environment apart from Pink Lady and Sundowner which have been released from the Western Australian breeding programme’). 119 Second, the CPVO’s criticism, which is based on an observation found in the summary in Exhibit 3, that the two varieties at issue were ‘tested widely in Australia’ disregards the context of that summary. In fact, that Exhibit 3 comprises a number of reports. Pages 1 to 11 constitute a first report, on page 6 of which it is stated that ‘approximately 5 000 trees each of Pink Lady and Sundowner have been planted in commercial orchards in the two years since release. The rate of planting is only restricted by the lack of planting material’. 120 On the twelfth page of Exhibit 3 there is a second report of only one page dated 17 February 1988, which states as follows: ‘The two varieties released to fruitgrowers from the programme, Pink Lady and Sundowner are being propagated in quantity by nurserymen and 10 000 trees of each should be available over the next two years. There is also considerable interest in these varieties in other states and propagating material is becoming widely distributed throughout Australia. Material has also been sent to New Zealand under a testing agreement.’ 121 The third report contained in Exhibit 3 states that ‘some criticism has been passed on from Eastern States growers of the fact that the varieties are not yet in retail outlets, but the time of 17-18 years from the making of the cross to retail availability, which has been achieved, is extremely short …’. Even in that report, there is therefore no question of any restriction on distribution solely for testing purposes. Although the summary of that third report states that the two varieties which had by that point been released were widely tested in Australia, that can be understood only as meaning that the varieties were tested on an industrial scale, there being, however, no evidence that restrictions had been imposed on purchasers and apple-growers as regards the exploitation of plant material. Accordingly, that summary does not contradict the passage relied on by the Board of Appeal. It follows that the Board of Appeal did not err in finding that the document referred to testing conditions only for New Zealand, whereas, in Australia, plant material appeared to have been widely distributed with no restriction before the deadline. 122 Similarly, it is necessary to reject the criticism by the applicant and the CPVO of Exhibit 15. 123 The applicant questions the relevance of Mr Price’s statutory declaration, relying, inter alia, on an alleged confusion in the timeline of events, the fact that the word ‘sales’ is not used in his declaration, the fact that one of the disposals is described as a ‘trial’ and the fact that one of the five growers named by Mr Price was a research officer for the Tasmanian Department of Agriculture. The applicant submits that the Board of Appeal could not merely cite, in paragraph 63 of the contested decision, that declaration without explaining why it raised serious doubts. 124 In that regard, as has already been recalled in paragraphs 55 and 56 above, the Board of Appeal confirmed Mr Allan Price’s statutory declaration by cross-checking information in the evidence regarded as contemporaneous, and also compared it with the declarations of the other witnesses. 125 As regards the reference to a trial in Mr Allan Price’s declaration, it is apparent from the wording of that declaration, which, broadly, is reproduced in paragraph 63 of the contested decision and is also found in Annex A-4.3 to the file, that Mr Allan Price included in his declaration a situation in which equal numbers of trees of the varieties Pink Lady, Sundowner and Gala, each on three different rootstocks, were planted on approximately 1.5 acres of a grower’s property. Despite the use of the word ‘trial’ in Mr Allan Price’s declaration, there is nothing demonstrating, in that declaration or in the other evidence assessed, that in that context a trial was being organised with the participation of commercial growers in order to evaluate the new varieties before allowing them to be used commercially. In his declaration, Mr Allan Price lists, in particular, a large number of ‘orders’ placed by various growers, who are individually named, without noting any trial restrictions or context in relation to those orders. On the contrary, Mr Allan Price concludes his declaration by noting that ‘it is obvious that Pink Lady wood was flowing freely through the apple industry …’. 126 Furthermore, the applicant’s allegation that Mr Allan Price refers only to the ‘disposal’ and to the ‘collection of Lady Pink trees’, but does not mention any ‘sale’, is irrelevant. For a plant variety to be protected, Article 10(1) of Regulation No 2100/94 requires that ‘variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder within the meaning of Article 11 [of Regulation No 2100/94], for purposes of exploitation of the variety’. It follows that it is irrelevant whether plant material was sold or disposed of in some other way. 127 In addition, apple growers who had received plants of the two varieties at issue had sold the fruit grown, which was, accordingly, not reserved for tests preventing it being exploited commercially. It is apparent from the declarations of Mr Atherton and Mr Allan Price that distribution was not only at the initiative of the applicant’s employees but also at the initiative of growers who wished to obtain more material. Growers do not, prima facie, have a research interest, but an economic interest. According to Mr Cripps’ declaration in 2018, which is reproduced at the end of paragraph 62 of the contested decision, the purpose of the distribution was to produce ‘fruit to be sold in the marketplace’. Similarly, Mr Atherton stated that ‘at no time were there any restrictions, of any kind and for whatsoever reason, placed on the aforesaid trees as to our ability to grow and sell the fruit. We sold Pink Lady apples independently through our local market agent.’ 128 The fact that Mr Allan Price had indicated that one of the five growers with whom he and his colleagues had been in contact in their role as ‘Fruit Advisors of the Department, providing both research findings and technical instruction to fruit growers’, was a research officer for the Tasmanian Department of Agriculture does not in any way alter the evidential value of his declaration as to whether there were disposals for purposes of exploitation during the relevant period, since the other four growers referred to in paragraph 2 of his statutory declaration were not, in any event, research officers. 129 The CPVO’s argument that the Board of Appeal attributed a secondary role to the requirement of commercial exploitation – in that, in paragraph 70(ii) of the contested decision, it simply assumed commercial exploitation from the fact that other requirements of sales of variety constituents were fulfilled and the consent of the breeder – is not justified in the light of the commercial context of those disposals and of the scale of distribution of plants and propagative material and given there is no evidence of disposals for testing purposes only. 130 In that context, it must be recalled that the analysis which the Board of Appeal was required to carry out was part of the first phase of nullity proceedings, during which the Board of Appeal must confine itself to determining whether there are serious doubts and is not supposed to make any finding on the substance by taking a view on whether the applicant for a declaration of nullity succeeded in proving a lack of novelty. 131 As regards the allegation that Exhibit 15 had been regarded as having no evidential value in the earlier proceedings, it is sufficient to refer to paragraph 47 above. As regards the fact that that declaration deals with facts which occurred more than 30 years earlier, reference should be made to paragraph 57 above. 132 As regards Exhibit 17, the applicant also reiterates the arguments concerning the Court’s findings in the earlier case, which have already been rejected in paragraph 49 above. Similarly, the applicant’s point regarding the interpretation of the various declarations in the light of all the evidence has already been dealt with in paragraph 55 above. 133 As regards Exhibit 19, which contains Mr Atherton’s declaration, the applicant criticises the Board of Appeal for having taken it into account even though it was not relevant, given that the reference to the fact that the Western Australian Department of Agriculture was aware of such plantings and that it used them to demonstrate ‘how the varieties were performing’ is vague, undated and only shows that, if the applicant did have actual knowledge of those plantings under commercial conditions, it used them as another trial location. 134 However, that criticism is not justified. In the first place, in his declaration, Mr Atherton stated that an employee of the applicant, an expert on the subject, had recommended to him, in June 1987, that he plant trees of the two varieties at issue. He stated that he had placed the order for those trees in June 1987, that they had been delivered in July 1988 and that the applicant had knowledge of those plantings. It follows that the events described are precisely dated. In the second place, contrary to what the applicant appears to assert, it does not follow from that declaration that the plantings were carried out for testing purposes. On the contrary, it is apparent that Mr Atherton, a commercial apple-grower, had decided to plant fruit trees and then asked the applicant which varieties it recommended. It follows that the plantings were carried out in Mr Atherton’s commercial interests. Accordingly, the Board of Appeal did not err in finding that Mr Atherton’s declaration was relevant. 135 As regards Exhibits 17 and 19, the CPVO calls into question their evidential value. In that regard, it is sufficient to refer to paragraphs 50 and 59 above. 136 Lastly, it is necessary to reject the applicant’s argument that the Board of Appeal did not refer to the documentary evidence adduced by the applicant in support of the fact that it had consented to the exploitation of the varieties at issue only from 1990, when it added them to its catalogue of recommended varieties. 137 In that regard, while the applicant may recommend certain varieties, the fact that a variety is not found in its catalogue of recommended varieties in no way proves that that variety could not be commercially exploited, but only proves that it was not one of the recommended varieties. The Board of Appeal did not err in not taking that evidence into account, particularly since it was sufficient for it to analyse whether the evidence adduced by the intervener was such as to raise serious doubts. 138 In the light of all the foregoing, it is necessary to reject the third part of the second plea and, therefore, that plea in its entirety. 139 Since none of the pleas raised by the applicant is well founded, the action must be dismissed in its entirety, that is to say, both the first head of claim seeking annulment of the contested decision and the second head of claim seeking alteration of that decision, there being no need to give a ruling on the admissibility of Annex A-1.10. Costs 140 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant and the CPVO have been unsuccessful, the applicant must be ordered to pay the costs, in accordance with the form of order sought by the intervener. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the action; 2. Orders the Western Australian Agriculture Authority (WAAA) to pay the costs of Teak Enterprises Pty Ltdand to bear its own costs; 3. Orders the Community Plant Variety Office (CPVO) to bear its own costs. Škvařilová-Pelzl Steinfatt Kukovec Delivered in open court in Luxembourg on 24 September 2025. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English.