ORDER OF THE GENERAL COURT (Tenth Chamber)
13 March 2020
(*)
(Action for annulment — Plant varieties — Nullity proceedings — Sugar beet variety M 02205 — Decision to remit the case to the competent body of the CPVO for further action — Article 72 of Regulation (EC) No 2100/94 — No interest in bringing proceedings — Power to alter decisions — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)
In Case T‑278/19,
Aurora Srl, established in Padua (Italy), represented by L.‑B. Buchman, lawyer,
applicant,
v
Community Plant Variety Office (CPVO), represented by M. Ekvad, F. Mattina, M. Garcia Monco-Fuente and A. Weitz, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of the CPVO, intervener before the General Court, being
SESVanderhave NV, established in Tienen (Belgium), represented by P. de Jong, lawyer,
ACTION brought against the decision of the Board of Appeal of the CPVO of 27 February 2019 (Case A 10/2013‑RENV), concerning nullity proceedings between Aurora and SESVanderhave,
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov, President, J. Passer and G. Hesse (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 26 April 2019,
having regard to the plea of inadmissibility raised by the intervener by document lodged at the Court Registry on 19 July 2019,
having regard to the plea of inadmissibility raised by the CPVO by document lodged at the Court Registry on 24 July 2019,
having regard to the applicant’s observations on the pleas of inadmissibility raised by the CPVO and by the intervener, lodged at the Court Registry on 4 September 2019,
makes the following
Order
Background to the dispute
Facts preceding Case T‑140/15
Procedure for the grant of a Community plant variety right
1        On 29 November 2002, the intervener, SESVanderhave NV, applied to the Community Plant Variety Office (CPVO) for a Community plant variety right pursuant to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1). The Community plant variety right was sought for variety M 02205, a sugar beet variety of the species Beta vulgaris L. ssp. Vulgaris var. altissima Döll.
2        The CPVO entrusted the Statens utsädeskontroll (Seed Testing and Certification Institute, Sweden; ‘the Examination Office’) with responsibility for carrying out the technical examination of the candidate variety, in accordance with Article 55(1) of Regulation No 2100/94. The Examination Office was required, inter alia, to examine whether the candidate variety was distinct from the most similar varieties whose existence was a matter of common knowledge on the date of application for a Community plant variety right within the meaning of Article 7(1) of Regulation No 2100/94. The sugar beet variety KW 043 was, inter alia, considered to be one of the varieties most similar to the candidate variety.
3        On 10 December 2004, the Examination Office sent to the CPVO the final technical report, along with the variety description and a document entitled ‘Distinctness Information’ (‘the comparative distinctness report’).
4        On the basis of the final technical report of the Examination Office, on 18 April 2005 the CPVO granted the intervener the Community plant variety right applied for, under Registration No EU 15118, for variety M 02205. Annexed to that decision were the documents supplied by the Examination Office, including the variety description and the comparative distinctness report.
5        On 20 April 2012, the applicant, Aurora Srl, informed the CPVO that an inconsistency had come to light in the certificate of registration for variety M 02205, namely that the states of expression relating to the characteristics ‘leaf blade colour’ and ‘leaf blade: undulation of the margin’, as included in the variety description, did not correspond to the states of expression in the comparative distinctness report.
6        Following a request for clarification from the CPVO on 23 April 2012, the Examination Office confirmed that the comparative distinctness report did contain an error. However, the Examination Office considered that that error did not affect the finding of distinctness as regards the candidate variety.
7        On 4 May 2012, the CPVO forwarded a corrected version of the comparative distinctness report to the applicant, indicating that there had been, in fact, an error in the transcription of the information taken from the official variety description.
8        Subsequently, the applicant informed the CPVO that other errors had come to light in the corrected version of the comparative distinctness report, namely that, in the corrected version of the document, the note corresponding to the ‘leaf blade colour’ characteristic had not been rectified. In that respect, the CPVO confirmed, on 11 May 2012, that the state of expression of variety M 02205 relating to that characteristic was not 5 but 4 — a number identical to that of variety KW 043. The ‘leaf blade colour’ characteristic was removed from the comparative distinctness report since, following the latter correction, that characteristic was no longer relevant for the purpose of distinguishing the candidate variety from variety KW 043, given that their respective states of expression were now identical.
9        In the course of the correspondence exchanged at that time between the Examination Office and the CPVO, the latter also queried whether the state of expression of varieties M 02205 and KW 043 was identical with regard to the ‘germity’ characteristic.
10      In the corrected version of the comparative distinctness report sent to the CPVO on 27 April 2012, the Examination Office maintained the reference to the ‘germity’ characteristic, while adding to its state of expression a percentage variation, namely 29% for the candidate variety as against 94% for reference variety KW 043.
Nullity proceedings before the CPVO at first instance
11      On 28 August 2012, the applicant lodged a request for a declaration
that the Community plant variety right granted to the intervener was null and void, pursuant to Article 20 of Regulation No 2100/94, on the ground that the successive corrections made to the comparative distinctness report showed that variety M 02205 did not satisfy the ‘distinctness’ requirement, as defined in Article 7(1) of the regulation.
12      On 13 May 2013 — since, following the abovementioned corrections, it became apparent that the distinction between variety M 02205 and variety KW 043
lay, as submitted by the applicant, solely in the difference in percentage relating to the ‘germity’ characteristic — the CPVO contacted the Examination Office requesting that it check whether the ‘germity’ characteristic was the only distinguishing characteristic between those varieties or if other characteristics of that nature had also been observed during the technical examination.
13      On 14 May 2013, the Examination Office issued an updated version of the comparative distinctness report, including new characteristics which the Examination Office considered to be capable of establishing the distinction between the varieties concerned.
14      In the light of those characteristics, on 16 May 2013 the CPVO informed the parties to the nullity proceedings that variety M 02205 was distinct from all varieties that were a matter of common knowledge within the meaning of Article 7 of Regulation No 2100/94. In addition, the CPVO stated that the change in the characteristics that had occurred was due to the fact that the practice of the various Examination Offices varied in respect of both how they draft distinctness reports and how they choose the characteristics deemed relevant for the purpose of establishing the distinctness of a candidate variety. Moreover, according to the CPVO, it had been precisely on the basis that the practice of the various Examination Offices varied that the CPVO had justified its decision to opt for the ‘germity’ characteristic. However, as that characteristic had proved to be incapable of establishing the finding of distinctness, it had finally been removed from the list of characteristics in the final version of the comparative distinctness report, as drawn up on 9 September 2013.
15      As a result of the various corrections to the comparative distinctness report, the applicant — in oral submissions at the hearing before the CPVO — submitted additional arguments with a view to establishing that, at the time the Community plant variety right at issue was granted, variety M 02205 was not distinct from reference variety KW 043.
16      The applicant claimed, in particular, that the last and penultimate versions of the comparative distinctness report showed that the notes of expression that they contained, relating inter alia to reference variety KW 043, did not come from the comparative growing trials that took place in 2003 and 2004 but were sourced from their official variety descriptions, as established at the time a Community plant variety right was granted for each variety.
17      From 23 May 2013, the applicant made a number of requests to the CPVO to provide it with the results of the comparative growing trials carried out in 2003 and 2004. However, those requests were not successful during the administrative procedure before the CPVO, because it was claimed that such data had to be retained by the Examination Office. It was only on 2 March 2015 that the CPVO sent the results of those growing trials to the applicant.
18      By Decision NN 010 of 23 September 2013, the CPVO committee responsible for deciding on matters relating to the nullity and cancellation of Community plant variety rights (‘the committee’) rejected the applicant’s request for nullity under Article 20(1)(a) of Regulation No 2100/94, on the ground that variety M 02205 was clearly distinct from the reference varieties, including KW 043.
Proceedings before the Board of Appeal of the CPVO
19      On 4 October 2013, the applicant filed a notice of appeal with the Board of Appeal of the CPVO, under Articles 67 to 72 of Regulation No 2100/94, against the decision to reject its request for nullity.
20      In the statement of grounds of appeal, the applicant expressed, in particular, concerns about the source of the data relating to reference variety KW 043, as included in the last and penultimate versions of the comparative distinctness report. It indicated that those concerns stemmed in particular from the fact that the notes of expression given to variety KW 043 in the comparative distinctness report were identical to those in the official variety description.
21      By Decision A 010/2013 of 26 November 2014, the Board of Appeal dismissed the applicant’s appeal as unfounded, holding, in particular, that the latter had overestimated the importance of the comparative distinctness report, when, in fact, that document merely contained additional information derived from the results of the comparative growing trials. Accordingly, the fact that the document was corrected three times could not have resulted in the nullity of the Community plant variety right at issue.
22      As regards the issue of comparative growing trials, the Board of Appeal took the view that the applicant had merely argued that no direct comparison had been carried out between the candidate variety and the reference varieties. After characterising the direct comparison of varieties as ‘a basic rule’ in the context of such trials, the Board of Appeal found that such a comparison had been carried out in the present case, as confirmed by the expert from the Examination Office at the hearing before it. In addition, the Board of Appeal stated that the data included in the comparative distinctness report could only have been derived from the results of the comparative growing trials carried out in respect of the candidate variety and those considered to be most similar.
23      With regard to the applicant’s argument alleging that the CPVO failed to communicate to it the recorded results of the comparative growing trials carried out in 2003 and 2004, despite several requests to that effect, the Board of Appeal considered that that data had to be retained by the Examination Office. Accordingly, it concluded that there was no sinister motive behind the refusal to grant access and that it was more likely that
it stemmed from a misunderstanding between the CPVO and the Examination Office.
Case T‑140/15
24      By an application lodged at the Registry of the General Court on 24 March 2015, the applicant brought an action against the decision of the Board of Appeal of the CPVO of 26 November 2014 (Case A 010/2013). In particular, first, the applicant submitted, in the light of the last and penultimate versions of the comparative distinctness report, that the obligation to base the comparison of a candidate variety with reference varieties on data derived from comparative growing trials had been breached in the present case. Secondly, the applicant submitted that the Board of Appeal had failed to carry out the necessary verifications, despite the evidence adduced by the applicant with regard to the errors made by the Examination Office, and had simply accepted the oral statements of the expert from that office, according to which comparative growing trials had taken place in 2003 and 2004.
25      By judgment of 23 November 2017, Aurora v CPVO — SESVanderhave (M 02205) (T‑140/15, EU:T:2017:830), the Court held that the two grounds of challenge put forward by the applicant were well founded and it therefore annulled the contested decision of the Board of Appeal.
26      First, the Court stated that the notes of expression in the comparative distinctness report, on the basis of which the distinctness of a candidate variety is established, had to correspond to the notes collected from comparative growing trials carried out in two independent growing cycles following the application for a Community plant variety right for the candidate variety (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraph 64).
27      Secondly, the Court found that the applicant had adduced, before the Board of Appeal, factual evidence of sufficient substance to raise serious doubts as to whether the data used for reference variety KW 043 had been sourced from its official variety description. Therefore, the Court held that the Board of Appeal was required to verify whether that contention had been well founded and draw the appropriate conclusions for the applicant’s action. It also noted that, in its replies to the written questions put by the Court, the CPVO had recognised that the notes of expression relating to variety KW 043, as included in the last and penultimate versions of the comparative distinctness report, did not correspond to the data collected from the comparative growing trials carried out in 2003 and 2004 but had been sourced from the official variety description for KW 043 (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraphs 68 and 69).
28      Thirdly, the Court verified whether the Board of Appeal had duly fulfilled its obligations in the face of the serious doubts raised by the evidence adduced by the applicant. In that regard, it noted that, in the case at issue, the Board of Appeal had limited itself to stating its view on whether comparative growing trials had taken place in 2003 and 2004 — a fact confirmed, according to the Board of Appeal, at the hearing before it by the expert from the Examination Office. The Court considered that the statements made by that expert had clearly not been sufficient for the Board of Appeal to find that the distinctness requirement had been fulfilled on the basis of data that complied with the applicable technical rules, and dismiss the applicant’s appeal.
It stated that the Board of Appeal was required to ensure that it had, at the time of the adoption of the contested decision, all the relevant information — namely, more specifically, the results of the comparative growing trials carried out in 2003 and 2004 — in order to be able to assess, on the basis of relevant data, whether the assessment of distinctness in respect of variety M 02205, compared with reference variety KW 043, had been carried out in compliance with the technical rules applicable. However, the CPVO admitted at the hearing before the Court that, at the time of adoption of the contested decision, the Board of Appeal did not have those results. The Court concluded that, by failing to carry out a proper examination to ensure that the distinctive character of variety M 02205, compared with the reference varieties, had been established on the basis of data derived from the comparative growing trials of 2003 and 2004, the Board of Appeal had not duly fulfilled its obligations (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraphs 70 to 80).
29      Fourthly, the Court held that that conclusion was not put in question by the arguments raised by the CPVO, in particular the argument that, in any event, varieties M 02205 and KW 043 were distinct, on the basis of the results from the comparative growing trials carried out in 2003 and 2004, in view of the ‘leaf blade colour’ characteristic. First of all, the Court recalled that the ‘leaf blade colour’ characteristic had not been one of the matters of fact on the basis of which the Board of Appeal had adopted its decision and that it could not be required of it to replace the grounds on which that decision was based. Subsequently, it stated that, since the Board of Appeal had made no finding in respect of the results from the comparative growing trials carried out in 2003 and 2004, it was not for the Court to assess those arguments when exercising its power to alter decisions. Finally, it noted that, in any event, the argument of the CPVO derived from the ‘leaf blade colour’ characteristic contradicted its own previous finding that that characteristic was not relevant for the purpose of establishing the distinctness requirement of the candidate variety (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraphs 81 to 84).
30      Fifthly, as regards the applicant’s request seeking alteration of the contested decision, the Court held that the conditions for the exercise of its power to alter decisions were not met. In that regard, it stated that the Board of Appeal had failed to examine the applicant’s contention that the distinctive character of variety M 02205 had been established on the basis of data in respect of reference variety KW 043 sourced from its official variety description, and not on the basis of results from the comparative growing trials carried out in 2003 and 2004. The Court concluded from that that it was not required to make such an assessment. Consequently, it held that the case must be remitted to the Board of Appeal in order to allow the latter to rule on the applicant’s appeal against the CPVO’s decision rejecting its request for nullity (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraphs 89 to 93).
The contested decision
31      By decision of 27 February 2019 (Case A 010/2013 — RENV; ‘the contested decision’), the Board of Appeal of the CPVO — with a different membership
from that which delivered the decision of 26 November 2014 (Case A 010/2013) — first of all annulled Decision NN 010 of 23 September 2013.
32      Thus, it held that the committee had been manifestly incapable of carrying out its obligation to conduct a complete analysis of the evidence, in particular the assessment of the technical data held by the Examination Office. According to the Board of Appeal, it was clear from the proceedings before the Court that the committee had not had the technical data provided by the Examination Office when the contested decision had been adopted. Therefore, the Board of Appeal concluded, on the basis of the case file before it, that the finding made by the committee in paragraph 10 of Decision NN 010 of 23 September 2013 that the Community plant variety right at issue was ‘clearly distinct from all other known sugar beet varieties for a number of characteristics of which only a selected few [had been] presented in the distinctness information section’ was patently incorrect (paragraphs 32 and 33 of the contested decision).
33      In that regard, it held, first, that the fact that the notes of expression of the variety KW 043 in the comparative distinctness report were identical to those contained in the official variety description reinforced the applicant’s argument in that respect; secondly, that since the results of the growing trials had not been made available to the applicant or the committee, the latter had not been in a position to rule on the nullity request on the basis of a correctly completed technical and scientific file or to determine whether the notes of expression corresponding to the characteristics enumerated in that report were reliable; and, thirdly, that the fact that the Examination Office had been aware of the correct notes of expression for all characteristics of the candidate variety was not, contrary to what the committee considered, relevant, as it was for the latter to examine and verify the data on the basis of which it adopted its decision. It added that the committee had not responded, and had been at fault for not doing so, to the applicant’s arguments. The Board of Appeal concluded that the proceedings before the committee and its conclusions had been legally flawed (paragraphs 34 to 39 of the contested decision).
34      Subsequently, the Board of Appeal raised the question of which body should conduct the required re-examination regarding the validity of the Community plant variety right at issue, in the light of Article 72 of Regulation No 2100/94.
35      In that regard, the Board of Appeal considered that, since the committee had not fulfilled its obligation to conduct a comprehensive factual examination of the entire technical file involving the Examination Office, it would be not only inappropriate from an institutional point of view, but also unduly cumbersome from procedural angle to have this task performed by the Board of Appeal (paragraph 44 of the contested decision).
36      The Board of Appeal took the view that, due to the numerous technical criteria and conditions governing the test of distinctness of a variety, the committee was better equipped to address the serious doubts recognised by the Court in paragraph 68 of its judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830), and to ascertain whether or not the distinctive character of the variety M 02205 had been properly established in compliance with the generally applicable technical rules and on the basis of a correct assessment of the results derived from the growing trials carried out in 2003 and 2004 in particular (paragraph 80 of that judgment). It noted that, when that committee had adopted the decision, it had not had all the relevant data it should have had at its disposal and that, before the Court, the CPVO had raised other grounds in an attempt to demonstrate the distinctiveness of the plant variety at issue, which it had not assessed. The Board of Appeal also stated that the applicant had also put forward arguments as to the proper functioning of Examination Office operations (paragraphs 45 to 48 of the contested decision).
37      The Board of Appeal concluded, in the light of the aforementioned considerations, that the committee was the most suitable forum to review whether the technical and scientific procedures for determining distinctness had been properly followed by the CPVO when it had granted the Community plant right to variety M 02205. It therefore remitted the matter to that body (paragraphs 49 and 50 of the contested decision).
38      The Board of Appeal stated that, in order to make an impartial determination as to the distinctive character of the variety in question, the committee was required to share all factual and technical elements at its disposal with the interested parties (paragraph 51 of the contested decision). As regards the burden of proof in the new proceedings before the committee, the Board of Appeal recalled that, during the hearing before it, the CPVO had acknowledged that it was for the latter to establish positively the validity of the Community plant variety right
at issue and to prove that all conditions set out in Articles 7 to 9 of Regulation No 2100/94 had been met, in particular the requirement that the variety at issue was ‘clearly distinguishable’, by reference to the expression of the characteristics, from any other variety (paragraph 52 of the contested decision). The Board of Appeal stated that, given the nature of the present dispute, the committee had to examine specifically whether the visually observed characteristic ‘leaf blade colour’ could be considered a distinguishing element of the variety at issue. It stated in that regard that, in paragraph 84 of the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830), the Court had held that the position of the CPVO as to the relevance (or otherwise) of the characteristic ‘leaf blade colour’ for the purpose of establishing the distinctiveness requirement of the candidate variety had been contradictory (paragraphs 53 and 54 of the contested decision).
39      Furthermore, when questioned on that subject during the hearing before the Board of Appeal, the CPVO stated that the ‘leaf blade colour’ characteristic was now the only relevant characteristic to be considered in order to establish or deny the distinctness of the variety in question. It followed, according to the Board of Appeal, that the committee was required to carry out a full examination and analysis to verify the accuracy of the notes relating to the ‘leaf blade colour’ characteristic. It was also incumbent upon the committee to examine whether this characteristic was sufficiently stable and reliable to be taken into account in the determination as to whether the variety at issue was capable of being classified as ‘clearly distinguishable’ from other varieties
within the meaning of
Article 7 of Regulation No 2100/94 (paragraphs 55 and 56 of the contested decision).
40      Finally, the Board of Appeal rejected the applicant’s claim for damages on the ground that it was premature and unsubstantiated (paragraph 57 of the contested decision).
Forms of order sought
41      In the application, the applicant claims that the Court should:
–        declare that the contested decision is a misapplication of the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830);
–        alter the contested decision, vary
Decision NN 010 of the CPVO of 23 September 2013 and uphold the challenge to the validity of Community plant variety right EU 15118 raised by the applicant on 28 August 2012;
–        consequently, declare that the Community plant variety right EU 15118 is null and void;
–        consequently, order CPVO to pay the costs incurred by the applicant and by any intervening parties.
42      In its plea of inadmissibility, the CPVO claims that the Court should:
–        dismiss the application as inadmissible;
–        in the alternative, should the Court reject the claim
alleging that the application is inadmissible or reserve its decision until it rules on the substance of the case, pursuant to Article 130(8) of its Rules of Procedure, set a new time limit for the submission of the response on the substance of the application;
–        order the applicant to pay the costs incurred by the CPVO.
43      In its plea of inadmissibility, the intervener contends that the Court should:
–        primarily, dismiss the application as inadmissible and order the applicant to pay the costs incurred by it;
–        in the alternative, should the Court consider the application admissible or decide to reserve its decision, set new time limits for the next stages of the proceedings in order to allow the intervener to respond as regards the substance of the action, and reserve its decision on the costs.
44      In its observations on the pleas of inadmissibility raised by the CPVO and the intervener, the applicant claims that the Court should reject those pleas and, in the alternative, reserve making a decision on them for the final judgment.
Law
45      Under Article 126 of the Rules of Procedure, where an action is manifestly lacking any foundation in law, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
46      In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided to give a decision without taking further steps in the proceedings.
The first head of claim
47      By its first head of claim, the applicant requests the Court to
‘declare that the [contested] decision misapplied the judgment … of 23 November 2017[, M 02205 (T‑140/15, EU:T:2017:830)]’. If it were to be interpreted as seeking a declaratory judgment from the Court, that request would have to be refused as manifestly inadmissible, as submitted by the CPVO and the intervener.
48      Nevertheless, in the body of the application, the applicant expressly stated that it was applying, under Article 263 TFEU and Article 73 of Regulation No 2100/94, for annulment of the contested decision. Therefore, in the light of the principle that the heads of claim must be interpreted in a purposive manner, the first head of claim must be interpreted as containing a request that the Court annul the contested decision.
49      That being said, it follows from settled case-law that the applicant must have an interest in the contested measure being annulled. Such an interest can be present only if the annulment of the measure is of itself capable of having legal consequences (judgment of 3 May 2018, CeramTec v EUIPO — C5 Medical Werks (Shape of a part of a prosthetic hip and others), T‑193/17 to T‑195/17, EU:T:2018:248, paragraph 22 and the case-law cited). That interest must be vested and present (judgment of 3 May 2018, Shape of a part of a prosthetic hip and others, T‑193/17 to T‑195/17, EU:T:2018:248, paragraph 31).
50      In the present case, it follows from the operative part of the contested decision that the Board of Appeal, first, annulled Decision NN 010 of the CPVO of 23 September 2013, upholding the applicant’s appeal, and, secondly, remitted the case to the competent CPVO body. It is clear that the contested decision is favourable to the applicant in so far as it annuls, at its request, the contested decision. As regards the remittance of the case in the contested decision to the competent body of the CPVO, it is common ground that, at this stage of the proceedings, the CPVO has not in any way ruled on the request for nullity of the Community plant variety right at issue, so that the applicant’s interest in having the contested decision annulled in that respect cannot be regarded as vested and present.
51      In those circumstances, the first head of claim, seeking the nullity of the contested decision, must be dismissed as being manifestly inadmissible.
52      Furthermore, the Court notes that the first head of claim, seeking the annulment of the contested decision, also manifestly lacks any foundation in law, as is apparent from the examination of the two pleas in law put forward in support of that head of claim.
Infringement of Article 72 of Regulation 2100/94
53      In essence, the applicant submits that, since there were no technical issues left to be determined, the Board of Appeal had the power, pursuant to Article 72 of Regulation No 2100/94, to directly decide itself the question as to whether or not to annul Decision NN 010 of the CPVO of 23 September 2013 and to declare the grant of the Community plant variety right to M 02205 null and void. According to the applicant, by failing to exercise its powers, the Board of Appeal is prolonging the final adjudication of the dispute which started in 2012 and exposing the applicant to further costs. The applicant also expresses doubts as to the independence, reliability and impartiality of the committee to which the Board of Appeal remitted the case. It submits that the contested decision thus amounts to a dereliction of duty on the part of the CPVO and a denial of justice.
54      In that regard, it must be recalled that, according to the clear wording of Article 72 of Regulation No 2100/94, the Board of Appeal may either exercise any power which lies within the competence of the CPVO or remit the case to the competent body of the CPVO for further action. It follows that the Board of Appeal enjoys broad discretion as to whether it is appropriate to rule itself on the application or to remit the case to the competent body of the CPVO (judgment of 8 June 2017, Schniga v CPVO, C‑625/15 P, EU:C:2017:435, paragraph 84).
55      In the present case, by deciding to remit the case to the competent body of the CPVO for further action, as it did in paragraphs 43 and 50 of the contested decision, the Board of Appeal exercised that discretion. There is no indication that it went beyond the discretion it enjoys under Article 72 of Regulation No 2100/94.
56      Moreover, it is clear that the applicant’s criticism on that subject is based on a manifestly incorrect premiss that there were no technical issues left to be determined in the case before the Board of Appeal.
57      As noted by the Board of Appeal, the Court found, in the case giving rise to the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830), that the applicant had adduced factual evidence of sufficient substance to raise serious doubts as to whether the data used for reference variety KW 043 had been sourced from its official variety description. It must be verified whether that contention is well founded and the appropriate conclusions must be drawn for the applicant’s action (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraph 68). As held by the Board of Appeal, it must also be determined whether the distinctive character of variety M 02205 had been correctly established in accordance with the generally applicable technical rules and on the basis of all the relevant data, in particular a proper assessment of the results of the growing trials carried out in 2003 and 2004 (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraph 80). Furthermore, the Board of Appeal was correct to point out that not only had the CPVO raised, before the Court, other factors allegedly showing the distinctness of the variety at issue, which had not been assessed by the committee, but the applicant had also put forward arguments before the Board of Appeal as to the proper functioning of Examination Office operations (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraph 82; see, also, the observations of the applicant to the Board of Appeal of 27 March 2018). In addition, in the light of the following analysis of the first plea in law, the question as to whether the ‘leaf blade colour’ characteristic is relevant for the purpose of distinguishing the variety at issue must be examined.
58      As regards the impartiality of the committee to which the Board of Appeal remitted the case, it must be noted that, as observed by the applicant in paragraph 59 of the application, Article 41(1) of the Charter of Fundamental Rights of the European Union, on the right to good administration, provides that ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’.
59      In that regard, the Court has previously held that there is no rule of law or principle which prevents an administration from entrusting to the same officials the re-examination of a case in compliance with a judgment annulling a decision, and that it cannot be stated as a general rule resulting from the obligation to be impartial that an administrative or judicial authority is bound to send the case back to a different authority or to a differently composed branch of that authority (judgment of 16 February 2017, Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators for heating), T‑828/14 and T‑829/14, EU:T:2017:87, paragraph 39 and the case-law cited).
60      Therefore, it must be concluded that the remittance by the Board of Appeal of the case at issue to the competent body of the CPVO, in accordance with Article 72 of Regulation No 2100/49, does not infringe the administration’s duty of impartiality under Article 41(1) of the Charter of Fundamental Rights.
61      Moreover, in the present case, it must be stated that, in order to ensure that the assessment of the distinctness of the variety at issue was carried out impartially, the Board of Appeal required the committee to share all factual and technical evidence at its disposal with the interested parties. It may also be noted that, as regards the burden of proof in the new proceedings before the committee, it will be for the CPVO to positively establish the validity of the Community plant variety right at issue and to prove that all the conditions set out in Articles 7 to 9 of Regulation No 2100/94 have been met (paragraphs 51 and 52 of the contested decision).
62      In those circumstances, the applicant’s
argument based on an alleged lack of independence, reliability and impartiality on the part of the committee is therefore manifestly unfounded.
63      As regards the argument that the remittance of the case to the committee would prolong the final adjudication of the dispute, which started in 2012, it must be noted that that fact alone is not capable, in the present case, of calling into question the decision taken in that respect by the Board of Appeal, in accordance with Article 72 of Regulation No 2100/94. As regards a potential disagreement on the part of the applicant with the assessment of the committee to which the case has been remitted in respect of the ‘leaf blade colour’, which would require it to lodge a new appeal, which it mentions in paragraph 16 of its observations on the plea of inadmissibility lodged by the intervener, it is clear that that argument is based on assumptions as to a future and hypothetical situation. It must therefore be rejected.
64      Consequently, all of the applicant’s arguments raised in the second plea in law are manifestly unfounded and must be rejected.
The misapplication of the judgment of 23 November 2017, M 02205 (T‑140/15)
65      In essence, the applicant submits that the contested decision does not take into account the findings contained in paragraphs 8, 84 and 93 of the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830),
to the effect that the CPVO’s arguments with regard to the ‘leaf blade colour’ characteristic must be rejected. It maintains that, by failing to take those findings into account, the Board of Appeal infringed the principles of legal certainty and legitimate expectations. The applicant also complains that the contested decision does not contain any ratio decidendi by which the committee will be bound.
66      In that regard, it must be recalled that, under Article 72 of Regulation 2100/94, where the Board of Appeal remits a case to the competent CPVO body for further action, that body is bound by the ratio decidendi of the Board of Appeal, in so far as the facts are the same.
67      In the present case, contrary to the submission of the applicant in paragraph 43 of the application, it does not follow from the scheme of the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830), that the Court ‘expressly excluded [“leaf blade colour”] as a suitable characteristic’.
68      It must be stated that, on reading paragraphs 8, 84 and 93 of the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830), as rightly observed by the Board of Appeal in paragraph 54 of the contested decision, the Court confined itself to stating, in the alternative, that the position of the CPVO as to the relevance (or otherwise) of the ‘leaf blade colour’ characteristic for the purpose of establishing the distinctness of the variety at issue had been contradictory.
69      The applicant thus cannot validly rely on the claim that the Court held that the ‘leaf blade colour’ was not a suitable characteristic in support of the alleged infringements of the principles of legitimate expectations and legal certainty.
70      Furthermore, it is apparent from paragraph 43 of the application that, by its argument that the contested decision does not contain the ratio decidendi by which the committee will be bound, the applicant in fact claims that the Board of Appeal should have instructed the committee to exclude ‘leaf blade colour’ from the characteristics to be examined in determining whether the variety at issue is distinctive, in order to comply with the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830).
71      It is clear that that argument is derived from a manifestly erroneous reading of that judgment and the contested decision.
72      In the judgment of 23 November 2017, M 02205 (T‑140/15, EU:T:2017:830), the Court stated that the CPVO, as a body of the European Union, was subject to the principle of sound administration, in accordance with which it must examine carefully and impartially all the relevant particulars of an application for a Community plant variety right and gather all the factual and legal information necessary to exercise its discretion. In other words, in the present case, it is for the CPVO to ensure that it has, at the time the decision to be taken is adopted, all the relevant information — in particular, the results of the comparative growing trials carried out in 2003 and 2004 — in order to be able to assess, on the basis of relevant data, the distinctness of variety M 02205, compared with reference variety KW 043, in compliance with the technical rules applicable (judgment of 23 November 2017, M 02205, T‑140/15, EU:T:2017:830, paragraphs 71 and 78).
73      It must be recalled that the Court also found that the position of the CPVO as regards the relevance of the ‘leaf blade colour’ characteristic had been contradictory. Subsequently, the CPVO stated, at the hearing before the Board of Appeal on 30 November 2018, that the only characteristic capable of distinguishing the variety at issue from variety KW 043 was that of ‘leaf blade colour’.
74      In the present case, since the body called on to hear the dispute cannot ignore the aforementioned factors in its assessment, the Board of Appeal rightly found that the committee to which it remitted the case must examine whether the ‘leaf blade colour’ characteristic was relevant for the purpose of distinguishing the variety at issue from any other variety. To that end, in the light of the judgment of 23 November 2017, M 02205
(T‑140/15, EU:T:2017:830), and in accordance with Regulation No 2100/94, the Board of Appeal rightly required the committee, first, to carry out a complete examination and analysis to verify the accuracy of the notes relating to the ‘leaf blade colour’ characteristic, and, secondly, to examine whether that characteristic was sufficiently stable and reliable to be taken into account for the purpose of
determining whether the variety at issue could be classified as ‘clearly distinguishable’ from any other variety.
75      It follows from all of the foregoing that the arguments submitted by the applicant in the first plea are manifestly unfounded and must be rejected. It follows that the first head of claim must also be rejected as manifestly lacking any foundation in law.
The second and third heads of claim
76      As a preliminary point, it should be noted, as observed by the intervener, that the applicant’s second and third heads of claim are, in fact, one and the same head of claim. The third head of claim merely specifies the conclusion that the applicant wishes to be drawn from the second head of claim.
77      It must therefore be concluded that, by those heads of claim, the applicant is requesting, in essence, that the Court alter the contested decision by adopting the decision which, in its view, the Board of Appeal ought to have taken, namely a decision finding that the conditions for declaring the Community plant variety right at issue to be null and void were met.
78      In that regard, it must be recalled that, in accordance with Article 73(3) of Regulation No 2100/94, the Court has jurisdiction not only to annul, but also to alter, the contested decision.
79      The power of the Court to alter decisions does not have the effect of conferring on it the power to substitute its own assessment for that of a Board of Appeal of the CPVO, or of carrying out an assessment on which that board of appeal has not yet adopted a position (see, by analogy, judgment of 21 July 2016, Apple and Pear Australia and Star Fruits Diffusion v EUIPO, C‑226/15 P, EU:C:2016:582, paragraph 67 and the case-law cited).
80      Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the Board of Appeal’s reasoning, is in a position to determine, on the basis of the matters of fact and law as established, what decision the Board of Appeal was required to take (see, to that effect, judgment of 18 September 2012, Schräder v CPVO — Hansson (LEMON SYMPHONY), T‑133/08, T‑134/08, T‑177/08 and T‑242/09, EU:T:2012:430, paragraph 250).
81      In the present case, the Board of Appeal decided to remit the case to the committee without assessing the validity of the Community plant variety right at issue. Therefore, any request that the Court carry out such an assessment must be rejected as manifestly lacking any foundation in law.
82      In the light of the foregoing, the action must be dismissed in its entirety as manifestly inadmissible and manifestly lacking any foundation in law.
Costs
83      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. However, pursuant to Article 135(1) of those rules, the Court may, if equity so requires, decide that an unsuccessful party is to bear its
own costs, but is to pay only part of the costs incurred by the other party, or even that it
is not to be ordered to pay any costs.
84      In the present case, it is true that the applicant has been unsuccessful in its claims. However, in the light of the circumstances giving rise to the dispute, Article 135(1) of the Rules of Procedure must be applied and each party ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
1.      The action is dismissed.
2.      Aurora Srl, the Community Plant Variety Office (CPVO) and SESVanderhave NV shall bear their own costs.
Luxembourg, 13 March 2020.
E. Coulon
A. Kornezov
Registrar
President
*      Language of the case: English.