62024TJ0573
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
29 April 2026 (
*1
)
(Plant varieties – Grant of a Community plant variety right for the potato variety Melrose – Failure to pay the annual fee on time – Cancellation of right – Application for restitutio in integrum – Competence of the Board of Appeal – Concept of ‘particular circumstances’ – Conditions for notification of decisions and communications of the CPVO)
In Case T‑573/24,
Romagnoli Fratelli SpA, established in Bologna (Italy), represented by E. Truffo and A. Iurato, lawyers,
applicant,
v
Community Plant Variety Office (CPVO), represented by M. García‑Moncó Fuente, M. Fortin, A. Christ and A. Pontecorvi, acting as Agents,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of P. Škvařilová‑Pelzl, President, I. Nõmm (Rapporteur) and D. Kukovec, Judges,
Registrar: V. Di Bucci,
having regard to the written procedure, in particular the measure of organisation of procedure of 26 November 2025 and the replies of the applicant and of the CPVO, lodged at the Registry of the General Court on 12 and 11 December 2025 respectively,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1
By its action under Article 263 TFEU, the applicant, Romagnoli Fratelli SpA, seeks annulment of the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 3 August 2024 (Case A001/2023) (‘the contested decision’).
Background to the dispute and events subsequent to the bringing of the action
2
On 10 December 2009, Meranini & C. Srl applied to the 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). That application was registered under number 2009/2240.
3
The plant variety in respect of which the Community plant variety right was sought is the potato variety Melrose, belonging to the species Solanum tuberosum L.
4
By decision of the CPVO of 20 February 2012, the Community plant variety right was granted for the plant variety at issue.
5
As from 24 April 2018 and following a transfer of the Community plant variety right at issue, the applicant became the holder of the Community plant variety right for that plant variety.
6
On 27 October 2021, a debit note relating to payment of the annual fee for the Community plant variety right at issue was issued and sent to the applicant by the CPVO in its user area, known as ‘MyPVR’.
7
As the debit note had not been paid within the time limit set, a formal reminder was sent to the applicant on 10 January 2022, in accordance with Article 83(2) of Regulation No 2100/94, via the MyPVR user area. In the context of that reminder, the CPVO invited the applicant to pay the amount due in respect of the annual fee within one month in order to avoid the cancellation of the Community plant variety right at issue pursuant to Article 21(2)(c) of that regulation.
8
On 16 February 2022, as the documents relating to the annual fee had not been downloaded by the applicant from the MyPVR user area, the CPVO sent the applicant another reminder by email, without however extending the time limit for payment.
9
On 21 March 2022, as the annual fee had not been paid within the time limit set, the CPVO cancelled the Community plant variety right at issue (‘the decision of 21 March 2022’). The decision on that cancellation was served on the applicant on 22 March 2022 and deemed notified on 30 March 2022.
10
On 6 May 2022, the applicant filed an application for restitutio in integrum, pursuant to Article 80 of Regulation No 2100/94, in relation to the time limit for payment of the annual fee referred to above.
11
That same day, the applicant paid the annual fee that had not yet been paid.
12
By decision of 7 November 2022, the CPVO did not grant the applicant’s application for restitutio in integrum (‘the decision of 7 November 2022’).
13
On 5 January 2023, the applicant brought an action before the General Court, registered as Case T‑2/23, against the decision of 7 November 2022.
14
On 6 January 2023, the applicant filed a notice of appeal before the Board of Appeal of the CPVO against the decision of 21 March 2022 by which the CPVO had cancelled the Community plant variety right at issue.
15
Also on 6 January 2023, the applicant filed an application for restitutio in integrum in relation to the time limit for filing a notice of appeal against the decision of 21 March 2022, given that the two-month time limit for bringing an appeal against that decision before the Board of Appeal of the CPVO, laid down in Article 69 of Regulation No 2100/94, had expired.
16
By judgment of 17 April 2024, Romagnoli Fratelli v CPVO (Melrose) (T‑2/23, EU:T:2024:247), the General Court dismissed the action against the decision of 7 November 2022. On 14 June 2024, the applicant brought an appeal against that judgment.
17
On 3 August 2024, the Board of Appeal adopted the contested decision. First, it considered that the appeal against the decision of 21 March 2022 was out of time. It pointed out that that decision was deemed to have been notified to the applicant on 30 March 2022, that the time limit for bringing an appeal had therefore expired on 30 May 2022 and that the appeal had been brought more than seven months after that time limit had expired. Secondly, the Board of Appeal of the CPVO considered that it was competent to rule on the application for restitutio in integrum itself. Thirdly, on the substance, it dismissed the application for restitutio in integrum on the ground that the applicant had not shown that it had faced particular circumstances or that it had taken all due care required for the conditions laid down in Article 80(1) of Regulation No 2100/94 to be satisfied. Fourthly and lastly, based on that dismissal, it concluded that the appeal against the decision of 21 March 2022 should be dismissed as inadmissible. On 10 September 2024, the contested decision was notified to the applicant.
18
By judgment of 1 August 2025, Romagnoli Fratelli v CPVO (C‑426/24 P, not published, EU:C:2025:619), the Court of Justice dismissed the appeal against the judgment of 17 April 2024, Melrose (T‑2/23, EU:T:2024:247).
Forms of order sought
19
The applicant claims, in essence, that the General Court should:
–
annul the contested decision;
–
declare the application for restitutio in integrum admissible before the Board of Appeal of the CPVO;
–
restore the Community plant variety right at issue;
–
order the CPVO to pay the costs.
20
The CPVO contends, in essence, that the Court should:
–
dismiss the action as unfounded;
–
order the applicant to pay the costs.
Admissibility of the evidence produced for the first time before the Court
21
The CPVO requests, in essence, that part of Annex 10 as well as Annexes 11 to 14 and 16 to 18 to the application be declared inadmissible on the ground that the applicant did not submit them in the course of the administrative procedure before it.
22
Indeed, Annexes 10 to 14 (with the exception of the applicant’s organisation chart for 2022 on the fourth page of Annex 10) and Annexes 16 to 18 to the application do not appear in the file relating to the proceedings before the CPVO.
23
In that regard, it must be recalled that, according to the case-law, the legality of an EU act is to be assessed in the light of the information available to the institution when it was adopted. In proceedings before the EU judicature, no one, therefore, can rely on matters of fact which were not put forward in the course of the administrative procedure (judgment of 17 April 2024, Melrose, T‑2/23, EU:T:2024:247, paragraph 32; see also, by analogy, judgment of 8 March 2023, Novasol v ECHA, T‑70/22, not published, EU:T:2023:106, paragraph 22).
24
Accordingly, in so far as the annexes mentioned in paragraph 22 above were produced for the first time before the Court, they may not be taken into consideration for the purpose of reviewing the legality of the contested decision and must therefore be disregarded.
Substance
25
As a preliminary point, it should be noted that it is common ground that the appeal brought before the Board of Appeal of the CPVO against the decision of 21 March 2022 was brought more than seven months after the time limit for bringing an appeal had expired. The application for restitutio in integrum filed by the applicant on 6 January 2023 thus sought to restore the applicant’s rights to bring an appeal against the decision of 21 March 2022.
26
In that regard, the Board of Appeal of the CPVO stated, in paragraphs 28 and 29 of the contested decision, that the time limit which had expired and which had given rise to the application for restitutio in integrum concerned a time limit to be observed vis-à-vis the Board of Appeal, and not vis-à-vis the CPVO at first instance. Consequently, it took the view that the appeal against the decision of 21 March 2022 and the application for restitutio in integrum could not be separated and that it was therefore competent to examine that application.
27
That conclusion of the Board of Appeal of the CPVO as to its competence to rule on the application for restitutio in integrum, with which, moreover, the parties agree, must be upheld.
28
In that regard, it should be noted that Chapter VI of Part Four of Regulation No 2100/94 lays down a series of ‘conditions governing proceedings’.
29
Among the conditions referred to in paragraph 28 above is Article 80(1) of Regulation No 2100/94. That article provides that ‘where, in spite of having taken all due care in the particular circumstances, the applicant for a Community plant variety right or the holder or any other party to proceedings before the Office has been unable to observe a time limit vis-à-vis the Office, his rights shall, upon application, be restored if his failure to respect the time limit has resulted directly, by virtue of this Regulation, in the loss of any right or means of redress’.
30
It should be pointed out that, unlike other conditions governing proceedings set out in Chapter VI of Part Four of Regulation No 2100/94, such as Article 77 of that regulation, which distinguish proceedings ‘before the Office’ from proceedings ‘before the Board of Appeal’, Article 80(1) of that regulation gives no indication that the term ‘Office’ contained in that article does not cover the Board of Appeal. Accordingly, as with the scope of Article 75 of Regulation No 2100/94, which provides that ‘decisions of the Office shall be accompanied by statements of the grounds on which they are based’, the scope of Article 80(1) of that regulation may be understood to cover the Board of Appeal.
31
The fact that no provision of Regulation No 2100/94 expressly provides that the Board of Appeal of the CPVO is competent to rule on an application for restitutio in integrum where that application concerns a time limit which an applicant has been unable to observe before that Board of Appeal does not mean that it is not competent to do so.
32
First, it must be pointed out that Article 35 of Regulation No 2100/94, which concerns the internal division of powers with regard to decisions taken by the CPVO, lays down, in paragraph 1 thereof, the principle that the President of the CPVO has competence to take all decisions which do not have to be made by the Boards of Appeal and, in paragraph 2 thereof, that competence is conferred on a committee.
33
Article 81(1) of Regulation No 2100/94 provides that, in the absence of procedural provisions in that regulation or in provisions adopted pursuant to that regulation, the CPVO is to apply the principles of procedural law which are generally recognised in the Member States. As regards restitutio in integrum, the body competent to decide on the application is, as a rule and by virtue of the principle of parallel competence, the body which was competent to find that the time limit had not been observed.
34
A combined reading of Articles 35 and 81 of Regulation No 2100/94 may thus lead to the conclusion that the EU legislature implicitly intended to allow the Board of Appeal of the CPVO to examine an application for restitutio in integrum which concerns a time limit which an applicant has been unable to observe before that Board of Appeal.
35
Secondly, it is true that Article 7 of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the CPVO (OJ 2009 L 251, p. 3) provides that the committees are to deal with the restitutio in integrum pursuant to Article 80 of Regulation No 2100/94. However, Article 7 of Regulation No 874/2009 provides that the restitutio in integrum is to be dealt with in addition to the decisions which the committees take on the basis of the competence conferred on them by Article 35(2) of Regulation No 2100/94. Accordingly, read in the light of the latter provision, Article 7 of Regulation No 874/2009 may be interpreted as conferring competence on committees to rule on questions concerning restitutio in integrum only in areas in respect of which competence has been conferred on them by Article 35(2) of Regulation No 2100/94. Such an interpretation is consistent with the principle that an implementing regulation must be given, if possible, an interpretation consistent with the provisions of the basic regulation (judgments of 24 June 1993, Dr Tretter, C‑90/92, EU:C:1993:264, paragraph 11, and of 10 September 1996, Commission v Germany, C‑61/94, EU:C:1996:313, paragraph 52). According to that interpretation of Article 7 of Regulation No 874/2009, the question of restitutio in integrum relating to a time limit which an applicant has been unable to observe before the Board of Appeal of the CPVO does not fall within the competence of the committees.
36
It should be added that the rationale for Article 7 of Regulation No 874/2009 lies in the need to identify, at the level of the CPVO, the person competent (namely the President or a person under the authority of the President) or committee competent to rule on an application for restitutio in integrum where the failure to observe the time limit has occurred before that body. By contrast, the identification of the competent person or committee in that regulation serves no purpose where an application for restitutio in integrum relating to the failure to observe a time limit before the Board of Appeal of the CPVO is concerned. The Board of Appeal of the CPVO is specifically the only body competent to deal with the matter and therefore does not need to be expressly identified as such in Regulation No 2100/94.
37
Thirdly, as is apparent from the twenty-sixth recital of Regulation No 2100/94, ‘the duties and powers of the [CPVO], including its Boards of Appeal, relating to the grant, termination or verification of Community plant variety rights and publications are as far as possible to be modelled on rules developed for other systems, as are also the Office’s structure and Rules of Procedure, the collaboration with the Commission and Member States particularly through an Administrative Council, the involvement of Examination Offices in technical examination and moreover the necessary budgetary measures’.
38
In that connection, the Board of Appeal of the European Union Intellectual Property Office (EUIPO) has been granted competence to decide on an application for restitutio in integrum where the omitted act forming the subject matter of that application concerns an appeal which has been brought before it out of time. Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) provides, in Article 104(4), under the heading ‘Restitutio in integrum’, that ‘the department competent to decide on the omitted act shall decide upon the application’, in accordance with the principle of parallel competence recalled in paragraph 33 above.
39
As such, it is also necessary to interpret, in so far as possible, the powers of the CPVO, including its Boards of Appeal, on the basis of the abovementioned rules established for EUIPO by Regulation 2017/1001, which also suggests that the Board of Appeal of the CPVO should be competent to examine an application for restitutio in integrum concerning a time limit which an applicant has been unable to observe before it.
40
It follows from paragraphs 28 to 39 above that the Board of Appeal of the CPVO was fully entitled to find that it was competent to rule on the application for restitutio in integrum, which was based on the applicant’s failure to observe the time limit for bringing an appeal before it.
41
The action is based on four pleas in law, alleging, first, an incorrect assessment of the existence of a case of force majeure due to the COVID-19 pandemic; secondly, an incorrect assessment of the existence of an excusable error; thirdly, a ‘missed’ or inaccurate interpretation of the evidence; and, fourthly, an infringement of Article 65 of Regulation No 874/2009.
42
The Court considers it appropriate to examine the first three pleas together and then to analyse the fourth plea.
The first, second and third pleas, alleging, respectively, an incorrect assessment of the existence of a case of force majeure due to the COVID-19 pandemic, an incorrect assessment of the existence of an excusable error, and a ‘missed’ or inaccurate interpretation of the evidence
43
By its first, second and third pleas, the applicant claims, in essence, that the Board of Appeal of the CPVO disregarded the fact that the applicant was faced with a case of force majeure caused by the COVID-19 pandemic. It takes the view that the Board of Appeal failed to carry out an assessment based on the facts, but merely deemed the evidence produced to be inconclusive. In the first place, the applicant relies on numerous staff absences on medical grounds. It points in particular to the absence of the only employee responsible for contacts and correspondence with the CPVO. In the second place, it submits that, as a medium-sized agricultural undertaking, any sort of staff shortage amounted to a case of force majeure. In that context, it adds that there were both financial and legal obstacles preventing it from remedying the staff shortage.
44
The CPVO disputes the arguments raised in support of those pleas.
45
According to Article 80(1) of Regulation No 2100/94, where, in spite of having taken all due care in the particular circumstances, the applicant for a Community plant variety right or the holder or any other party to proceedings before the CPVO has been unable to observe a time limit vis-à-vis the CPVO, his or her rights are to be restored, upon application, if that failure to respect the time limit has resulted directly, by virtue of that regulation, in the loss of any right or means of redress.
46
It is apparent from Article 80(1) of Regulation No 2100/94 that restitutio in integrum is subject to two cumulative requirements, the first being that the person in question has taken all due care in the particular circumstances, and the second being that the failure by that person to respect the time limit has the direct consequence of causing the loss of any right or means of redress (see, by analogy, judgment of 15 September 2011, Prinz Sobieski zu Schwarzenberg v OHIM – British-American Tobacco Polska (Romuald Prinz Sobieski zu Schwarzenberg), T‑271/09, not published, EU:T:2011:478, paragraph 53 and the case-law cited).
47
Furthermore, observance of time limits is a matter of public policy and restitutio in integrum is liable to undermine legal certainty. Consequently, the conditions for the application of restitutio in integrum must be interpreted strictly (see, to that effect and by analogy, order of 9 December 2022, AMO Development v EUIPO (Medical instruments), T‑311/22, not published, EU:T:2022:822, paragraph 20 and the case-law cited).
48
In the case at hand, in the three pleas raised together, the applicant disputes the assessment made by the Board of Appeal of the CPVO of the first requirement referred to in paragraph 46 above, in so far as the Board concluded that the applicant had not proved that, first, it was faced with particular circumstances and, secondly, it had taken all due care in those circumstances.
49
In the first place, it is necessary to examine the argument based on the absences of members of the applicant’s staff as a result of the COVID-19 pandemic.
50
First, the Board of Appeal was right in finding that the applicant had not put forward any convincing arguments to support the view that the absences at issue explained why the time limit for bringing an appeal before it had not been observed.
51
The applicant does not dispute that it received the decision of 21 March 2022 on 30 March 2022. It was thus for the applicant to demonstrate specifically why it had been unable to observe the time limit for bringing an appeal, which ran from 30 March to 30 May 2022.
52
The applicant has not put forward any evidence to show that the absences of its staff on medical grounds occurred between 30 March and 30 May 2022.
53
Secondly, as regards the more specific argument based on the absence of the only employee who was responsible for correspondence with the CPVO, first of all, it is apparent from the statement of the interested party that the period of absence concerning her related rather to January 2022. The applicant has not submitted any document indicating the period during which that employee, who was responsible for correspondence with the CPVO, was absent and thus unable to carry out the tasks entrusted to her, relating to that correspondence.
54
Therefore, the applicant has not adduced evidence to show that the employee responsible for correspondence with the CPVO had been absent during the period from March to May 2022 and that it had thus faced particular circumstances due to the COVID-19 pandemic which prevented it from observing the time limit for bringing an appeal, before the Board of Appeal of the CPVO, against the decision of 21 March 2022.
55
Next, even if that employee had been absent during the period from 30 March to 30 May 2022, the applicant has not provided any evidence to show that that employee could not be replaced.
56
Lastly, it must be stated that the applicant has not explained the reasons why other possible solutions had not been applied in order to make up for the absence of its employee who was responsible for correspondence with the CPVO. For example, even if the absence of that employee had been proved – which is not the case here – the applicant has completely failed to explain or substantiate with evidence what prevented it from handing over the said employee’s tasks and login details for the MyPVR user area to another member of its staff for the period concerned.
57
In that regard, the Court has already held that, even if it were established, the unavailability of a person, within a company, even if that person was responsible for correspondence with an institution, cannot be regarded as a circumstance extraneous to the applicant (see, to that effect, order of 24 March 2022, Cheers Interactive (India) v EUIPO – Furrion Property (Device of three horizontal black strips), T‑544/21, not published, EU:T:2022:202, paragraph 36).
58
Thirdly, as regards the argument based on the cyberattack suffered by a partner company, of which the applicant was a collateral victim, the applicant has not stated or, a fortiori, demonstrated how a cyberattack which occurred at the end of December 2021 and which was the subject of a complaint to the public prosecutor in Italy on 7 January 2022 could explain the failure to observe a time limit which expired five months later, especially since it is not disputed that the applicant received the decision of 21 March 2022 on 30 March 2022.
59
Fourthly, it is necessary to reject the applicant’s argument that, in essence, the CPVO did not duly inform it of the applicable rules and of how to challenge the decision. First of all, in the decision of 21 March 2022, the CPVO clearly drew the applicant’s attention to the fact that it could bring an appeal against that decision within two months of its entry into force.
60
Next, as the CPVO quite rightly observes, the applicant was clearly informed, by email of 5 May 2022 from the CPVO, of the fact that it could bring an appeal and of the requirements for doing so. The CPVO even specified the requirements for simultaneously bringing an appeal and submitting an application for restitutio in integrum.
61
Lastly, there is no provision requiring the CPVO to inform a party of the procedures available to it, nor, a fortiori, is it incumbent on it to advise that party to pursue any particular legal remedy (see, by analogy, judgment of 4 May 2018, Skyleader v EUIPO – Sky International (SKYLEADER), T‑34/17, not published, EU:T:2018:256, paragraph 43).
62
In the second place, the applicant submits unsuccessfully that, given that it is a medium-sized company, it did not have sufficient financial resources to hire additional staff members to replace those on medical leave. It also relies in vain on the legal obstacles which it claims prevented it from recruiting staff.
63
First, the applicant’s vague line of argument amounts to considering that, for a medium-sized agricultural undertaking, any sort of staff shortage should be regarded as a case of force majeure.
64
Such reasoning cannot be sufficient to demonstrate specifically that the conditions for the application of restitutio in integrum are satisfied and that the CPVO made an error of assessment in that regard. As has been pointed out in paragraph 47 above, it must be borne in mind that those conditions must be interpreted strictly.
65
Secondly, the argument that Italian legislation prevented the applicant from recruiting staff is being put forward for the first time before the Court.
66
The legality of the contested decision must be assessed by the European Union judicature on the basis of the information available to the CPVO when it adopted that decision (see, to that effect, judgment of 24 September 2025, AQ v ECHA, T‑1101/23, not published, EU:T:2025:894, paragraph 33).
67
Moreover, the legislative act on which the applicant bases its reasoning was not annexed to the application. That application only makes a vague reference to a provision of that legislation without contextualising it, and thus does not contain any specific explanation as to whether and how the legislation in question may actually have been applicable in the present case.
68
Accordingly, after having taken into consideration the information which had been provided to it at the time of the application for restitutio in integrum, the CPVO was right to conclude that the applicant had not proved that it had faced particular circumstances or that it had acted with all due care in view of that information.
69
It follows that the first three pleas in law must be rejected as unfounded.
The fourth plea, alleging infringement of Article 65 of Regulation No 874/2009
70
By its fourth plea, in the first place, the applicant submits that it did not receive the reminder sent by the CPVO on 10 January 2022 concerning the unpaid annual fee. It complains that the CPVO infringed Article 65 of Regulation No 874/2009 in that it failed to provide proof of actual notification and receipt of that reminder. In the second place, it disputes, in essence, the fact that the MyPVR user area is deemed an official channel of notification of documents or decisions within the meaning of Regulation No 2100/94 and Regulation No 874/2009 and, consequently, it calls into question the applicability of the Terms and Conditions concerning electronic systems of communication with and by the CPVO (‘the MyPVR terms and conditions’), as defined in the decision of 20 December 2016 of the President of the CPVO.
71
The CPVO disputes the arguments raised in support of that plea.
72
As a preliminary point, it should be noted that the arguments relied on in support of the fourth plea are, in essence, identical to those put forward in the context of the second plea raised in the case which gave rise to the judgment of 17 April 2024, Melrose (T‑2/23, EU:T:2024:247), which was upheld on appeal by the judgment of 1 August 2025, Romagnoli Fratelli v CPVO (C‑426/24 P, not published, EU:C:2025:619). They should be answered in the same way.
73
In the first place, the MyPVR user area constitutes a valid official channel of notification for the debit note of 27 October 2021 and the reminder of 10 January 2022 (judgment of 17 April 2024, Melrose, T‑2/23, EU:T:2024:247, paragraphs 52 to 65).
74
Under Article 79 of Regulation No 2100/94, the CPVO is to effect of its own motion service of all decisions and summonses, and of notifications and communications, from which a time limit is reckoned, or which are required to be served either in pursuance of other provisions of that regulation or by provisions adopted pursuant to the said regulation or by order of the President of the CPVO. Service may be effected through the competent variety offices of the Member States.
75
It should be stated that, in the case at hand, given that the debit note of 27 October 2021 and the reminder of 10 January 2022 both set a time limit to be observed by the applicant, they must be regarded as ‘notifications [or] communications, from which a time limit is reckoned’ within the meaning of Article 79 of Regulation No 2100/94.
76
Under Article 64(4) of Regulation No 874/2009, documents or copies thereof containing actions for which service is provided for in Article 79 of Regulation No 2100/94 are to be served by electronic means to be determined by the President of the CPVO or by postal means by recorded delivery with advice of delivery served.
77
It is apparent from the wording of Article 64(4) of Regulation No 874/2009 that, first, communications and notifications from the CPVO from which a time limit is reckoned, within the meaning of Article 79 of Regulation No 2100/94, may be notified by electronic means and, secondly, the details of such service by electronic means are to be determined by the President of the CPVO.
78
In accordance with Article 64(4) of Regulation No 874/2009, on 20 December 2016, the President of the CPVO adopted a decision concerning electronic communication with and by the CPVO.
79
The first paragraph of Article 3 of the decision of 20 December 2016 of the President of the CPVO provides that the CPVO will make available, on its website ‘www.cpvo.europa.eu’, an electronic communication area that will enable users to receive, view, print and save all electronically available documents and notifications sent to them by the CPVO as well as reply to such notifications and file requests and other documents. That electronic communication area (or ‘user area’) is a restricted system and will be referred to as ‘MyPVR’.
80
The fourth paragraph of Article 3 of the decision of 20 December 2016 of the President of the CPVO provides that, once its implementation has been completed, MyPVR will offer the option of receiving all communications from the CPVO electronically. If the user chooses that option, the CPVO will send all notifications electronically via that user area, unless that is impossible for technical reasons.
81
According to the first paragraph of Article 4 of the decision of 20 December 2016 of the President of the CPVO, once the user has activated the option of communicating with the CPVO electronically, all electronically available official notifications from the CPVO will be made via MyPVR. The service of documents containing actions for which Article 79 of Regulation No 2100/94 provides for automatic service will be done via MyPVR.
82
According to Article 6 of the decision of 20 December 2016 of the President of the CPVO, ‘the Terms and Conditions concerning electronic communication with and by the [CPVO] within MyPVR available on the [CPVO’s] website will further specify the e-actions, the requirements thereof and the technical conditions under which electronic notifications and/or communications with and by the [CPVO] can be made, as well as the standard undertakings that have to be signed by the users’.
83
It is apparent from the first and fourth paragraphs of Article 3 and from the first paragraph of Article 4 of the decision of 20 December 2016 of the President of the CPVO, referred to in paragraphs 79 to 81 above, that all communications and notifications, including those covered by Article 79 of Regulation No 2100/94, may be made via the MyPVR user area, provided that the user has activated the option enabling the CPVO to communicate with him or her electronically.
84
In addition, Article 6 of the decision of 20 December 2016 of the President of the CPVO, referred to in paragraph 82 above, provides that the MyPVR terms and conditions are to specify further the e-actions, the requirements thereof and the technical conditions under which electronic notifications and/or communications from the CPVO can be made. Consequently, the applicability of those terms and conditions cannot be called into question, either.
85
Furthermore, point 4(b) of version 3.0 of the MyPVR terms and conditions reaffirms that, where the user has opted for electronic communication, the CPVO will validly notify him or her of decisions, communications and other documents electronically via the user area, unless that proves impossible for technical reasons or in cases where certain functionalities of that area are under development. In such cases, electronic communications via email or other valid means of communication would be allowed as an approved notification tool.
86
Therefore, the complaint relating, in essence, to the unlawfulness of the MyPVR user area as one of the official channels of notification cannot succeed.
87
However, it is apparent from the fourth paragraph of Article 3 and from the first paragraph of Article 4 of the decision of 20 December 2016 of the President of the CPVO as well as from point 4(b) of version 3.0 of the MyPVR terms and conditions that the use of MyPVR as an official channel of notification is subject to the condition that the user has activated the option enabling the CPVO to communicate with him or her electronically.
88
In that regard, it is appropriate to note that the applicant does not dispute that it had opted for electronic communication via MyPVR, within the meaning of the provisions mentioned in paragraph 87 above, and that it had accepted version 3.0 of the MyPVR terms and conditions, thereby confirming its decision to opt for electronic communication.
89
According to point 2 of version 3.0 of the MyPVR terms and conditions, users undertake to use the user area to, inter alia, receive notifications and documents sent by the CPVO. Electronic communications via email can only be allowed as an approved communication tool in cases where the platform is not appropriate. In addition, the second subparagraph of point 2 of version 3.0 of the MyPVR terms and conditions provides that, by using the user area, the user undertakes to comply with the obligations set out in the first subparagraph of point 2 of those terms and conditions.
90
There can therefore be no doubt that, by using the user area and accepting the MyPVR terms and conditions, the applicant agreed to receive communications and notifications from the CPVO via the MyPVR user area.
91
In the light of the foregoing, the complaint relating to the unlawfulness of MyPVR as an official channel of notification in respect of the applicant must be rejected.
92
In the second place, as regards the complaint alleging infringement of Article 65 of Regulation No 874/2009 in that the CPVO did not provide proof of actual notification and of receipt of the reminder sent on 10 January 2022, it should be rejected on the same grounds as those set out in the judgment of 17 April 2024, Melrose (T‑2/23, EU:T:2024:247, paragraphs 71 to 77).
93
It should be pointed out that the reminder of 10 January 2022 was sent via MyPVR. Therefore, Article 65 of Regulation No 874/2009, relating to service effected by post, cannot apply in this case. In that regard, reference should be made to Article 64a of Regulation No 874/2009, relating to service by electronic means or any other technical means.
94
Article 64a(1) of Regulation No 874/2009 provides that service by electronic means is to be made by transmitting a digital copy of the document to be notified. Service is deemed to have taken place on the date on which the communication was received by the recipient. The President of the CPVO is to determine the details of service by electronic means. According to Article 64a(3) of the regulation, the President of the CPVO is to determine the details of service by other technical means of communication.
95
As has already been stated in paragraphs 88 to 90 above, the applicant does not dispute that it agreed to receive communications and notifications from the CPVO via MyPVR. In that regard, it should also be recalled that, according to the first paragraph of Article 4 of the decision of 20 December 2016 of the President of the CPVO, once the user has activated the option of communicating with the CPVO electronically, all electronically available official notifications from the CPVO, including documents containing actions for which service is provided for in Article 79 of Regulation No 2100/94, will be made via MyPVR. MyPVR should therefore be regarded as the only official channel for communicating official notifications, including those provided for in Article 79 of Regulation No 2100/94.
96
Consequently, pursuant to the first paragraph of Article 4 of the decision of 20 December 2016 of the President of the CPVO, the CPVO notified to the applicant via MyPVR, in the first place, on 27 October 2021, a debit note relating to payment of the annual fee, followed, on 28 October 2021, by an automatic email, and, in the second place, on 10 January 2022, the reminder in question inviting it to pay the unpaid fee in accordance with Article 83(2) of Regulation No 2100/94, followed, on 11 January 2022, by an automatic email.
97
As far as actual notification of the reminder of 10 January 2022 is concerned, the fourth paragraph of Article 4 of the decision of 20 December 2016 of the President of the CPVO states that a decision or other document is deemed to have been notified on the expiry of the seventh day following the day on which an email was sent to the user informing him or her that the digital copy of the decision or document was placed by the CPVO to the user area. In the case at hand, it follows that the reminder of 10 January 2022 must be regarded as having been notified on 18 January 2022, namely the seventh day following 11 January 2022, the date of the automatic email informing the applicant of the uploading of the document at issue to the MyPVR user area.
98
Furthermore, in accordance with the fifth paragraph of Article 4 of the decision of 20 December 2016 of the President of the CPVO, if users cannot access a decision or any other documents, they should inform the CPVO of it immediately. It must be pointed out that, in the case at hand, the applicant did not inform the CPVO of any problems accessing the documents at issue.
99
Consequently, the CPVO cannot be criticised for not having notified the reminder of 10 January 2022. In the absence of evidence to the contrary from the applicant, the reminder at issue is deemed to have been received by it on 18 January 2022. Therefore, that complaint must also be rejected as unfounded.
100
In the light of the foregoing, the fourth plea in law must be rejected and, accordingly, the action must be dismissed in its entirety as unfounded, without there being any need to rule on the applicant’s second head of claim, requesting, in essence, that the Court grant the application for restitutio in integrum examined by the Board of Appeal, or on the applicant’s third head of claim, requesting that the Court restore the Community plant variety right at issue.
Costs
101
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
102
Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the CPVO.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Romagnoli Fratelli SpA to pay the costs.
Škvařilová-Pelzl
Nõmm
Kukovec
Delivered in open court in Luxembourg on 29 April 2026.
V. Di Bucci
Registrar
S. Papasavvas
President
(
*1
)	Language of the case: English.