ORDER OF THE GENERAL COURT (Third Chamber)
21 October 2013(*)
(Plant varieties – Application for a Community plant variety right for the plant variety SOUTHERN SPLENDOUR – Objections – Rejection of the application by the Board of Appeal of the CPVO – Competence of the CPVO – Taking of evidence – Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)
In Case T‑367/11,
Lyder Enterprises Ltd, established in Auckland (New Zealand), represented by G. J. Pickering, solicitor,
applicant,
v
Community Plant Variety Office (CPVO), represented by A. von Mühlendahl and H. Hartwig, lawyers,
defendant,
the other party to the proceedings before the Board of Appeal of the CPVO, intervener before the Court, being
Liner Plants (1993) Ltd, established in Waitakere (New Zealand), represented by P. S. Jonker, lawyer,
ACTION against the decision of the Board of Appeal of the CPVO of 4 May 2011 (Case A 7/2010), concerning the grant of a Community plant variety right for the plant variety SOUTHERN SPLENDOUR,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 4 July 2011,
having regard to the documents lodged by the applicant at the Court Registry on 9 September 2011 and 22 September 2011,
having regard to the response of the CPVO lodged at the Court Registry on 12 December 2011,
having regard to the response of the intervener lodged at the Court Registry on 9 December 2011,
having regard to the reply lodged by the applicant at the Court Registry on 23 January 2012,
having regard to the rejoinder lodged by the CPVO at the Court Registry on 30 April 2012,
having regard to the rejoinder lodged by the intervener at the Court Registry on 27 April 2012,
having regard to the application for a hearing to be arranged lodged by the CPVO at the Court Registry on 24 May 2012,
makes the following
Order
Facts and background to the dispute
1        On 27 September 2006, Plant Marketing International Ltd (‘PMI’) filed an application for a Community plant variety right at the Community Plant Variety Office (CPVO), pursuant to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1), as amended. The Community right was sought in respect of the plant variety SOUTHERN SPLENDOUR, a member of the species Cordyline Comm. ex R. Br.
2        By letter of 18 October 2006, following a request by the CPVO for clarification concerning, inter alia, the fact that the application form for the Community plant variety right referred to PMI as the party applying for that right and to the applicant, Lyder Enterprises Ltd, as the breeder, PMI stated that the applicant was the owner of the plant variety at issue and should be considered as the party applying for the Community plant variety right and that PMI was its representative.
3        On 11 January 2008, the intervener, Liner Plants (1993) Ltd, submitted to the CPVO a written objection to the grant of the Community plant variety right for the plant variety SOUTHERN SPLENDOUR, pursuant to Article 59 of Regulation No 2100/94.
4        The rights of the original breeder of the plant variety which gave rise to the application for a plant variety right at issue were transferred to a New Zealand company, Duncan and Davies Contracting Ltd (‘DDC’), now Totaranui Management Ltd.
5        To prove that the applicant was the owner of the plant variety SOUTHERN SPLENDOUR, PMI submitted a document to the CPVO entitled ‘deed of assignment and acceptance of agreement micro-propagation and production of weaned plants’ of 10 October 2002 (‘the deed of assignment’), concluded between DDC and the applicant, concerning an agreement of 23 May 2000 on the micro-propagation and production of weaned plants between DDC and Torbay Palm Farm International Ltd.
6        Before the CPVO, the intervener submitted, inter alia, that the deed of assignment did not transfer the ownership of the plant variety SOUTHERN SPLENDOUR and that it was the successor in title to the original breeder.
7        By decision R 972 of 7 December 2009 (‘the refusal decision’), the CPVO accepted the objections raised by the intervener and refused the application for a Community plant variety right for the plant variety SOUTHERN SPLENDOUR, on the grounds, first, that the applicant had not proved that it was the breeder for the purpose of Article 11 of Regulation No 2100/94 and, secondly, that the variety was not novel for the purpose of Article 10 of that regulation.
8        On 21 January 2010, the applicant lodged an appeal against the refusal decision before the Board of Appeal of the CPVO, registered under reference A 7/2010.
9        By decision of 18 February 2011 (‘the contested decision’), the Board of Appeal dismissed the applicant’s appeal and affirmed the refusal decision in so far as it was based on the lack of proof that the applicant was the breeder of the plant variety SOUTHERN SPLENDOUR for the purpose of Article 11 of Regulation No 2100/94, but without ruling on the novelty of that variety.
10      On the same date, the Board of Appeal also delivered another decision, concerning other varieties of the species Cordyline Comm. ex R. Br. (‘the other decision of 18 February 2011’), dismissing the applicant’s appeals against decisions R 969, R 970 and R 971 of the CPVO, registered under references A 1/2010, A 5/2010 and A 6/2010. In those decisions, the CPVO had accepted the objections raised by the intervener and refused the applications for Community plant variety rights in respect of the plant varieties CORAL, CANDY CANE and SUNRISE of the species Cordyline Comm. ex R. Br.
11      Subsequent to the contested decision, the applicant brought two actions for a declaratory judgment before the High Court of New Zealand, in order for that court to determine whether, by the deed of assignment, DDC had transferred the property rights in respect of the plant variety SOUTHERN SPLENDOUR to the applicant. The first action bore the reference CIV-2011-404-2969 (‘the first action for a declaratory judgment’). On 11 August 2011, the High Court of New Zealand delivered a declaratory judgment concerning the first action for a declaratory judgment. The second action bore the reference CIV-2012-404-0226 (‘the second action for a declaratory judgment’).
Forms of order sought
12      In its application, the applicant claims, in essence, that the Court should:
–        declare the action admissible and annul the contested decision;
–        stay the proceedings until the High Court of New Zealand rules on the first action for a declaratory judgment.
13      In the documents which it lodged at the Court Registry on 9 September 2011 and in the reply, the applicant claims, in essence, that the Court should:
–        stay the proceedings until the High Court of New Zealand rules on the second action for a declaratory judgment;
–        in the alternative, annul the contested decision and the other decision of 18 February 2011 and ‘reconsider’ them after the High Court of New Zealand has ruled on the second declaratory judgment;
–        uphold the action and refer the case back to the CPVO for re-examination after the High Court of New Zealand has ruled on the second action for a declaratory judgment.
14      The CPVO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
15      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
16      Under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.
17      In the present case, the Court considers that it has sufficient information from the documents before it and decides, pursuant to that article, to give a decision on the action by reasoned order, without taking further steps in the proceedings, even if a party has requested that a hearing be held (see, to that effect, order of 13 September 2011 in Case T‑397/10 ara v OHIM – Allrounder (A), not published in the ECR, paragraph 18).
Admissibility of the additional claim put forward by the applicant in the documents lodged at the Court on 9 September 2011 and in the reply, seeking the annulment of the other decision of 18 February 2011
18      It follows from the provisions of Article 44(1)(c) of the Rules of Procedure that the applicant is required to state the subject-matter of the proceedings in the application, which is the document initiating proceedings (see, by analogy, Case C‑256/98 Commission v France [2000] ECR I‑2487, paragraph 31).
19      Moreover, under Article 44(1)(d) of the Rules of Procedure, the applicant is required to state the form of order sought by it in the application. Thus, only the form of order set out in the application initiating proceedings may be taken into consideration (see, by analogy, Case 83/63 Krawczynski v Commission [1965] ECR 773, paragraph 2) and the substance of the action must be examined solely with reference to the form of order sought in the application initiating proceedings (see, by analogy, Case 232/78 Commission v France [1979] ECR 2729, paragraph 3).
20      Furthermore, Article 48(2) of the Rules of Procedure allows new pleas in law to be introduced on condition that they are based on matters of law or of fact which come to light in the course of the procedure. It is apparent from the case-law that that condition governs a fortiori any amendment to the form of order sought and that, in the absence of matters of law or of fact which come to light in the course of the written procedure, only the form of order sought in the application may be taken into consideration (Case T‑236/07 Germany v Commission [2010] ECR II‑5253, paragraph 28; see also, by analogy, Krawczynski v Commission, cited in paragraph 18 above, paragraph 2).
21      While it has indeed been held that where the initially contested measure has, in the course of the procedure, been replaced by another measure with the same subject‑matter, the latter must be regarded as a new factor which allows the applicant to amend its claims and pleas in law (Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 8, and Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraph 28), in the absence of such a replacement of the initially contested measure, the initial form of order sought may not be amended in the course of the proceedings.
22      In the present case, as the CPVO and the intervener rightly submit, it is undoubtedly clear from a reading of the first page of the application that it seeks only the annulment of the contested decision. That conclusion is not affected by the fact that the applicant annexed to the application, in addition to a copy of the contested decision, a copy of the other decision of 18 February 2011, because it is not for the Court to seek and identify in the annexes the grounds and claims on which it may consider the action to be based, the annexes having a purely evidential and instrumental function (see, to that effect, order of 8 July 2010 in Case T‑212/10 Strålfors v OHIM (IDENTIFICATION SOLUTIONS), not published in the ECR, paragraph 7).
23      The other decision of 18 February 2011, which was taken on the same date as the contested decision, is independent of, and does not replace, the latter. Moreover, as the CPVO submits, without being contradicted by the applicant, the other decision of 18 February 2011 was notified to the applicant on 4 May 2011, before the application initiating proceedings was lodged. In those circumstances, the additional claim, in that it seeks the annulment of the other decision of 18 February 2011, amends the subject-matter of the dispute and the initial form of order. Therefore, in accordance with the case-law cited in paragraphs 18 to 21 above, that claim must be rejected as manifestly inadmissible.
The claims seeking the annulment of the contested decision and the suspension of the proceedings
24      Although no plea in law is formally indicated in the application, the applicant puts forward, in essence, a single plea therein, alleging errors of law made by the Board of Appeal in rejecting the evidence contained in letters that the applicant submitted to the CPVO (‘the disputed evidence’) on the ground that it was not in the form of a sworn affidavit.
25      Moreover, in the documents lodged at the Court Registry on 9 September 2011 and in the reply, the applicant puts forward, in essence, a plea in law alleging the lack of competence of the CPVO and, in particular, of the Board of Appeal, to examine the issue of the identification of the breeder of the plant variety SOUTHERN SPLENDOUR. That plea must be examined before the plea raised in the application.
26      Lastly, in its application, the applicant also puts forward the argument that it follows from the contested decision that, if it could be established subsequent to that decision that the deed of assignment was a valid and binding contract and that the object of that contract was the assignment of the plant variety SOUTHERN SPLENDOUR, its application for a Community plant variety right would have to be upheld, which prompted it to submit the documents lodged at the Court Registry on 9 and 22 September 2011 and to develop some additional arguments in the reply. Those arguments must be examined in conjunction with the line of argument put forward in the application. Furthermore, it is in that context that the applicant set out, as a form of order sought, the claims that the present proceedings be stayed, as can be seen from paragraphs 12 and 13 above.
The plea in law alleging the lack of competence of the Board of Appeal to examine the issue of the identification of the breeder of the plant variety SOUTHERN SPLENDOUR
27      The applicant claims, in essence, that the CPVO and, in particular, the Board of Appeal are not competent to determine whether the applicant is the breeder of the plant variety SOUTHERN SPLENDOUR, on the ground that, according to New Zealand company law, the only court which has jurisdiction over companies established in New Zealand is the High Court of New Zealand. According to the applicant, the Board of Appeal therefore acted ultra vires in adjudicating on the interpretation of a contract concluded between two companies established in New Zealand.
28      As a preliminary, it must be noted that, although that plea was not put forward in the application, the lack of competence of the CPVO and, in particular, of the Board of Appeal should, where appropriate and in any event, be raised by the court of its own motion even if none of the parties have asked it to do so (see, to that effect and by analogy, Joined Cases T‑12/99 and T‑63/99 UK Coal v Commission [2001] ECR II‑2153, paragraph 71 and the case-law cited).
29      It must also be noted that it is clear from Article 12 of Regulation No 2100/94 that any natural or legal person or any body ranking as a legal person under the law applicable to that body may file an application for a Community plant variety right.
30      It was pursuant to that provision that the applicant, which, it is not disputed, is a legal person under the applicable New Zealand law, submitted to the CPVO the application for a Community plant variety right at issue in the present case and that, following the refusal decision, it lodged an appeal before the Board of Appeal in accordance with Article 68 of Regulation No 2100/94.
31      In examining an application for a Community plant variety right, the CPVO is bound by the following provisions.
32      Article 11(1) of Regulation No 2100/94 provides :
‘The person who bred, or discovered and developed the variety, or his successor in title, both – the person and his successor – referred to hereinafter as “the breeder”, shall be entitled to the Community plant variety right.’
33      Under Article 50 of Regulation No 2100/94, one of the conditions to be satisfied by an application for a Community plant variety right is that it contains the name of the breeder and an assurance that, to the best of the applicant’s knowledge, no other persons have been involved in the breeding, or discovery and development, of the variety. That article also provides that if the applicant is not the breeder, or not the only breeder, he is to provide the relevant documentary evidence as to how the entitlement to the Community plant variety right came into his possession.
34      Moreover, Article 53 of Regulation No 2100/94 provides, in relation to the formal examination of the application, that the CPVO is to examine whether the application complies with the conditions laid down in Article 50 of that regulation.
35      As regards the substantive examination of the application, Article 54(1) of Regulation No 2100/94 provides that the CPVO is to examine, inter alia, whether the applicant is entitled to file an application pursuant to Article 12 of the regulation. Article 54(2) provides that the first applicant is to be deemed to be entitled to the Community plant variety right pursuant to Article 11, unless, before a decision on the application is taken, the CPVO is aware, or it is shown by a final judgment delivered with regard to a claim for entitlement, that the entitlement at issue is not or is not solely vested in the first applicant.
36      In the context of the substantive examination, pursuant to Article 76 of Regulation No 2100/94, the CPVO is to make investigations on the facts of its own motion, disregarding facts or items of evidence which have not been submitted within the time limit set by the CPVO.
37      It follows, therefore, from the provisions referred to in paragraphs 32 to 36 above that, where the applicant is not the breeder, Regulation No 2100/94 requires him to provide the CPVO with the relevant documentary evidence indicating how the entitlement to the Community plant variety right came into his possession, including, where appropriate, information establishing the content of the relevant national legislation. In such a case, it is, first, for the competent CPVO bodies to assess the authority and scope of the information submitted by the applicant in that respect and, secondly, for the General Court, in the event of an action brought before it, to conduct a full review of the lawfulness of the CPVO’s assessment of the information in question (see, by analogy, Case C‑263/09 P Edwin v OHIM [2011] ECR I‑5853, paragraphs 50 to 52).
38      Accordingly, contrary to the applicant’s submissions, the CPVO was competent to decide on questions of fact concerning the determination of the status of the party applying for the Community plant variety right, including, inter alia, the interpretation of a contract transferring ownership between two New Zealand companies such as the deed of assignment. That was the case a fortiori since that deed had been submitted to the CPVO by the applicant itself and the intervener had contended, in accordance with Article 59 of Regulation No 2100/94, that the conditions laid down in Article 11 of that regulation had not been complied with, submitting other evidence to that effect.
39      It follows that the CPVO and, in particular, the Board of Appeal were competent to determine whether the applicant was the breeder of the plant variety SOUTHERN SPLENDOUR and, in that respect, to interpret the deed of assignment. The plea must therefore be rejected as manifestly lacking any foundation in law.
The single plea in law set forth in the application, alleging, in essence, errors of law made by the Board of Appeal in rejecting the disputed evidence
40      The applicant sets out a number of complaints in support of its argument that the Board of Appeal erred in law in rejecting the disputed evidence as inadmissible, and in failing to take that evidence into consideration in the contested decision on the ground that it was not in the form of a sworn affidavit, whereas, in the course of the proceedings before the CPVO, the applicant had been informed that the evidence in question was admissible and sufficient and the Board of Appeal had also considered the disputed evidence to be admissible at the hearing.
41      First, it claims that, in view of those circumstances, the contested decision breaches the principle of audi alteram partem. Secondly, by placing the disputed evidence in the file and advising the parties during the hearing that the disputed evidence constituted admissible evidence, but then rejecting that evidence in the contested decision, the Board of Appeal acted ultra vires and showed ‘a total failure to understand the fundamental rules of natural justice’. Thirdly, the Board of Appeal breached essential procedural requirements by failing to indicate that it would accept the evidence only in the form of sworn affidavits. Fourthly, the Board of Appeal breached the principle of equality of treatment.
42      The CPVO and the intervener dispute the applicant’s complaints.
43      The applicant’s complaints concern, in essence, the Board of Appeal’s analysis, set forth in page 12 of the English version of the contested decision. Having examined the evidence submitted by the intervener as regards the alleged transfer of ownership to it of the plant variety SOUTHERN SPLENDOUR, the Board of Appeal stated the following in relation to the disputed evidence:
‘As for [the disputed evidence], it only consists of letters …
Nothing in these letters shows that they are “sworn affidavits”, within the meaning of Article 78(g) of [Regulation No 2100/94]. Indeed, these letters are considered as mere “unsworn declarations” since nothing indicates that they have been given under oath.
Whilst an unsworn declaration may be adduced as evidence of the facts alleged therein, if unsupported by other evidence from independent, external sources, its probative value is limited. In the present case, all the “unsworn declarations” claim that the deed [of assignment] transferred the ownership of the varieties to [the applicant]. However, as seen above, the deed itself contradicts that claim and these affirmations are not supported by any other independent evidence.
In order to be regarded as conclusive evidence, an affidavit issued by managers or employees of affiliated companies of the [applicant] or by guarantors in favour of the [applicant] … ought to be corroborated by other independent documentary evidence unrelated to the interested party [see, by analogy, judgment of 13 May 2009 in Case T‑183/08 Schuhpark Fascies v OHIM – Leder & Schuh (jello SCHUHPARK), not published in the ECR, paragraphs 38 and 39]. In the present case, the [applicant] failed to submit further evidence to the affidavits.
In conclusion, none of the [letters that constitute the disputed evidence] are capable of proving, either by themselves or in combination with each other, that the ownership of the varieties has been transferred to [the applicant].’
44      It is clear that the applicant’s arguments are based on a misreading of the contested decision. As can be seen from the relevant passage of the contested decision, quoted in paragraph 43 above, the Board of Appeal took the disputed evidence adduced by the applicant into consideration.
45      The Board of Appeal first found that the letters that constitute the disputed evidence consisted of unsworn declarations, which the applicant does not dispute. It nevertheless took those letters into consideration as evidence, while noting that their probative value was limited in the absence of other evidence from independent external sources to corroborate them.
46      Moreover, contrary to what the applicant seems to claim, the Board of Appeal did not err in law in taking that approach.
47      As noted above, under Article 76 of Regulation No 2100/94, the CPVO is, in proceedings before it, to investigate the facts of its own motion, to the extent that they come under the substantive examination of the application.
48      Sworn affidavits are referred to in Article 78(1)(g) of Regulation No 2100/94 as one of the means of giving or obtaining evidence in any proceedings before the CPVO.
49      According to the case-law, in order to assess the evidential value of a document, regard should be had, first, to the credibility of the account it contains. It is then necessary to take account of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable (see, by analogy, Case T‑303/03 Lidl Stiftung v OHIM – REWE-Zentral (Salvita) [2005] ECR II‑1917, paragraph 42, and judgment of 18 January 2011 in Case T‑382/08 Advance Magazine Publishers v OHIM – Capela & Irmãos (VOGUE), not published in the ECR, paragraph 43). Furthermore, a declaration made by persons linked to the applicant, even where it is made in accordance with Article 78(1)(g) of Regulation No 2100/94, can be considered as having evidential value only if it is corroborated by further evidence (see, to that effect, Salvita, paragraph 43, and jello SCHUHPARK, cited in paragraph 43 above, paragraph 39).
50      In the present case, besides the fact that the disputed evidence consists of unsworn declarations, the applicant does not contest the Board of Appeal’s assessment that those declarations do not originate from independent sources.
51      In those circumstances, the Board of Appeal cannot be criticised for taking into account the fact that the deed of assignment contradicted the statement in the disputed evidence that that deed had transferred the ownership of the plant variety SOUTHERN SPLENDOUR to the applicant, and for concluding, consequently, that none of the letters that constitute the disputed evidence were capable of proving, either by themselves or in combination with each other, that the ownership of the variety had been transferred to the applicant.
52      It follows that the applicant has failed to establish that the Board of Appeal erred in law in examining the evidence submitted by the applicant and the intervener in their entirety, and, moreover, that none of the applicant’s other arguments referred to in paragraph 41 above can succeed. Besides the fact that those complaints are limited to mere statements of principle devoid of any supporting arguments, with the result that they are inadmissible under Article 44(1)(c) of the Rules of Procedure, those complaints must, in any event, be rejected as manifestly lacking any foundation in law, since they are based on the premise that the Board of Appeal declared the disputed evidence inadmissible and did not take it into consideration in its analysis, whereas it is clear from an examination of the contested decision that the Board of Appeal took account of that evidence in its examination of all of the evidence before it.
53      Consequently, the plea in law must be rejected as manifestly lacking any foundation in law.
54      Lastly, the arguments set forth in the reply concerning alleged errors made by the Board of Appeal in its analysis of the evidence submitted by the intervener to prove the transfer of ownership to it of the plant variety SOUTHERN SPLENDOUR by DDC constitute a new plea in law, which is manifestly inadmissible in accordance with the case-law mentioned in paragraph 20 above.
The documents intended to establish the rights of the applicant subsequent to the contested decision and the related arguments and claims
55      As indicated in paragraph 26 above, the applicant seems to be of the view that it follows from the contested decision that, if it could be established subsequent to that decision that the deed of assignment was a valid and binding contract and that the subject-matter of that contract was the assignment to the applicant of the plant variety SOUTHERN SPLENDOUR, its application for a Community plant variety right would have to be upheld. In accordance with that argument, it made the claims, referred to in paragraphs 12 and 13 above, that the Court should stay the proceedings, and lodged documents at the Court Registry on 9 and 22 September 2011. Those documents include, besides the judgment of the High Court of New Zealand of 11 August 2011 concerning the first action for a declaratory judgment, various sworn declarations from several persons made subsequent to the contested decision and demonstrating the transfer of ownership of the plant variety SOUTHERN SPLENDOUR to the applicant. They also concern an affidavit made by Mr K., a scientist, confirming, besides the applicant’s property rights in respect of the plant variety SOUTHERN SPLENDOUR, the novelty of that variety.
56      It is evident that the applicant’s analysis arises not only from a misreading of the contested decision, but also from a failure to take account of the procedure for processing applications for Community plant variety rights as laid down in Regulation No 2100/94.
57      Under Article 73 of Regulation No 2100/94, actions may be brought before the Court against decisions of the Board of Appeal on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of Regulation No 2100/94 or of any rule of law relating to their application, or misuse of power.
58      It follows, in particular, from that provision that the Court may annul or alter a decision against which an action has been brought only if, at the time the decision was adopted, it was vitiated by one of those grounds for annulment or alteration. By contrast, the Court may not annul or alter that decision on grounds which come into existence subsequent to its adoption (see, by analogy, Case C-29/05 P OHIM v Kaul [2007] ECR I‑2213, paragraph 53 and the case-law cited).
59      Moreover, in that regard, according to the case-law, facts not submitted by the parties before the CPVO cannot be submitted at the stage of the action brought before the Court. The Court is called upon to assess the lawfulness of the decision of the Board of Appeal by reviewing the application of European Union law made by that board, particularly in the light of the facts which were submitted to it, but the Court cannot carry out such a review by taking into account matters of fact newly produced before it (see Case C‑38/09 P Schräder v CPVO [2010] ECR I‑3209, paragraph 76 and the case-law cited).
60      Accordingly, contrary to what the applicant seems to believe, it is not for the Court to re-examine whether its application for a Community plant variety right met the conditions laid down in Article 11 of Regulation No 2100/94 on the basis of evidence that was not submitted before the Board of Appeal. It follows that all of the evidence referred to in paragraph 55 above and the related arguments must be rejected as manifestly inadmissible and that, consequently, it is not necessary to grant the applicant’s requests for the proceedings to be stayed.
61      It follows from all of the foregoing that the action must be dismissed as in part manifestly inadmissible and in part lacking any foundation in law.
Costs
62      Under Article 87(2) 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 has been unsuccessful, it must be ordered to bear its own costs and to pay those of the CPVO and the intervener, in accordance with the form of order sought by them.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1.      The action is dismissed.
2.      Lyder Enterprises Ltd shall pay the costs.
Luxembourg, 21 October 2013.
E. Coulon
O. Czúcz
Registrar
President
* Language of the case: English.