JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 July 2017 (*)
(New varieties of plants — Community plant variety rights — Application for a Community plant variety right for the pear variety Oksana — Objections — Rejection of the application by the Board of Appeal of the CPVO — Article 10 of Regulation (EC) No 2100/94 — Novelty of the candidate variety — Lack of evidence)
In Case T‑767/14,
Boomkwekerij van Rijn-de Bruyn BV, established in Uden (Netherlands), represented by P. Jonker, lawyer,
applicant,
v
Community Plant Variety Office (CPVO), represented by F. Mattina, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of the CPVO, intervening before the General Court, being
Artevos GmbH, established in Karlsruhe (Germany), represented by G. Würtenberger, W.R. Kunze, lawyers, and B. Schnell, Solicitor,
the other party to the proceedings before the Board of Appeal of the CPVO having been
Dachverband Kulturpflanzen- und Nutztiervielfalt eV, established in Bielefeld (Germany),
ACTION against the decision of the Board of Appeal of the CPVO of 2 July 2014 (Case A 007/2013) concerning the grant of a Community plant variety right in respect of pears of the Oksana variety,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,
Registrar: A. Lamote, administrator,
having regard to the application lodged at the Court Registry on 17 November 2014,
having regard to the response of the CPVO lodged at the Court Registry on 9 April 2015,
having regard to the response of the intervener lodged at the Court Registry on 31 March 2015,
having regard to the reply lodged at the Court Registry on 1 September 2015,
having regard to the rejoinder of the CPVO lodged at the Court Registry on 25 November 2015,
having regard to the reassignment of the case to a new Judge-Rapporteur,
having regard to the change in the composition of the Chambers of the General Court and the reassignment of the case to the Sixth Chamber,
having regard to the measures of organisation of procedure of 18 October 2016,
further to the hearing on 12 January 2017,
gives the following
Judgment
Background to the dispute
1        On 8 June 2005, the applicant, Boomkwekerij van Rijn-de Bruyn BV, filed an application with the Community Plant Variety Office(CPVO) for a plant variety right in accordance with Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (‘the application for a plant variety right’). The application for a plant variety right was registered under number 2005/1046. The plant variety in respect of which the application was made is the variety of pears of the species Pyrus communis L._initially named Xenia and subsequently, from 22 October 2010 onwards, Oksana (‘the candidate variety’).
2        The CPVO asked the Bundessortenamt (Federal Plant Variety Office, Germany) to carry out the technical examination in accordance with Article 55(1) of Regulation No 2100/94 (‘the technical examination of the candidate variety’).
3        By email of 24 August 2005 (‘the Bundessortenamt’s email of 24 August 2005’), the Bundessortenamt informed the CPVO that some clarification was needed. In particular, it stated that it appeared from the application for a plant variety right that the candidate variety had been listed in Ukraine and Moldova, but had not been sold. It informed the CPVO that it could not be ruled out that the candidate variety had been sold. It also stated that the candidate variety had been included in its own reference collection for more than 20 years, that it had been sold in Switzerland by a nursery under the name Novembra for approximately 6 years and that other nurseries had informed it of their intention to sell it in Germany.
4        By email of 21 October 2005 from the CPVO to the applicant (‘the CPVO’s email of 21 October 2005’), the CPVO highlighted the reservations which the Bundessortenamt had expressed concerning the novelty of the candidate variety. It stated that the candidate variety had been included in the Bundessortenamt’s reference collection for more than 20 years and that it had been sold in Switzerland for 6 years, which appeared to defeat the requirement of novelty. The CPVO invited the applicant to clarify the point as quickly as possible.
5        By email of 30 November 2005, the applicant answered the CPVO saying that the breeder, the Research Institute for Horticulture, Moldova (‘the breeder’), had assured it that it had not sold the candidate variety for the purposes of its commercial exploitation. It added that, if the candidate variety had been commercially exploited, it was without the breeder’s consent and it would be necessary to check whether this was indeed the same variety. Moreover, the inclusion of a variety in a reference collection several years old did not affect the novelty of that variety.
6        On 22 October 2007, the CPVO received an objection to the application for a plant variety right from the intervener, Artevos GmbH, formerly GEVO GmbH, dated 16 October 2007, on the ground that the candidate variety was not new, within the meaning of Article 10 of Regulation No 2100/94, and had been commercially exploited since the 1990s.
7        By letter of 10 December 2007, the applicant’s representative informed a nursery in Germany that the applicant had been informed that the nursery was selling trees bearing the name Nojabraskaja which belonged to the candidate variety and asked to be kept informed of the number of trees sold.
8        On 18 April 2008, the intervener sent the CPVO two sworn declarations dated 16 April 2008 which, inter alia, attested to the fact that the candidate variety had been on the European market for several years, and in particular since 2000. Those declarations were sent to the applicant on 7 May 2008.
9        By two letters dated 8 August 2008, sent to the director and representative of the intervener (taken together, ‘the two letters from the breeder of 8 August 2008’) the breeder, relying on its ‘copyright’, requested the intervener to cease all production and sale of fruit trees of the Noiabriskaia variety and to withdraw its objection to the application for a plant variety right filed on 16 October 2007. In the letter to the intervener’s representative, the breeder also stated that, at the end of the 1980s, the candidate variety had been sent for research purposes to the Dresden-Pillnitz Institute for Fruit Growing (Germany) (‘the Dresden-Pillnitz Institute’) in the context of a cooperation agreement, concluded for the period between 1975 and 1993 and that ‘unfortunately’ the Dresden-Pillnitz Institute ‘could transmit [the candidate variety] to other federal collections without [its] authorisation’. It emphasised, however, that it had not been asked to conclude any agreement for the sale of the candidate variety.
10      By letter of 8 September 2008, the breeder sent its two letters of 8 August 2008 to the CPVO.
11      By another letter dated 8 August 2008, the breeder notified the CPVO that it disagreed with the illegal production of trees of the Noiabriskaia pear variety in Germany.
12      On 25 September 2008, the CPVO asked the Bundessortenamt to ensure that both the variety Noiabriskaia and the variety Novembra would be used as comparison varieties in the technical examination of the candidate variety. The Bundessortenamt replied on the same day, stating that the variety Nojabrskaja was already included in the trials and that plant material of the variety Novembra had been ordered. It also went on to state that the variety Noiabriskaia was the same variety as the commonly known variety Nojabrskaja, which had been bred in 1962 in Moldova.
13      On 21 December 2010, the CPVO received the technical examination report on the candidate variety, which was sent to the parties on 2 February 2011 for observations. The report of that technical examination concluded that the candidate variety was distinct, uniform and stable and that the variety Gräfin von Paris was the most similar variety.
14      In reply to an email sent by the CPVO on 2 February 2011, the Bundessortenamt confirmed, by email of 9 February 2011, that the plant material submitted for the technical examination was identical to the variety Nojabrskaja. It added that the variety Nojabrskaja had been bred in 1962 in Moldova, disseminated in 1969 and introduced into the reference collection of the Wurzen Testing Station (Germany) (‘the Wurzen collection’) in 1982 from an undetermined source. Plant material of that variety had been propagated in a nursery in Magdeburg (Germany) and commercialised in the former German Democratic Republic since 1985.
15      The CPVO received three further objections on 31 January 2011, 14 March 2011 and 10 November 2011, each arguing that the candidate variety was not new. On 14 December 2011, the CPVO sent an email to all the parties to the proceedings before it, stating that it was sending them a copy of the objections file.By email of 16 February 2012, the applicant sent its observations in reply, emphasising in particular that any growing of the candidate variety since 2000 had been of trees planted for testing and examination purposes only.
16      By email of 26 October 2012, the CPVO requested clarification from the Bundessortenamt concerning the conclusions of its technical examination report, according to which the candidate variety had been found to be distinct, the variety Gräfin von Paris being the most similar variety, which gave the impression that the variety Nojabraskaja had been excluded from the analysis carried out during the technical examination. By email of 7 November 2012, the Bundessortenamt informed the CPVO that it had never been doubted, either by itself or by the applicant, that the candidate variety and the old Moldovan pear variety Nojabrskaja, which had been exploited since the early 1980s, were one and the same. It confirmed that the candidate variety had been found, on completion of the technical examination, to be identical to the variety commonly known as Nojabrskaja. According to the Bundessortenamt, it was not a problem of distinction, but a problem of novelty. It added that it was necessary to compare a variety with the most similar other variety and that the most similar variety was the variety Gräfin von Paris. On 3 December 2012, the Bundessortenamt sent to the CPVO documents attesting to the inclusion of the variety Nojabrskaja in the Wurzen collection since 1982.
17      On 7 December 2012, the CPVO asked the Bundessortenamt to prepare a technical report clearly stating that the candidate variety had been found, on completion of the technical examination, to be the same as the commonly known variety Nojabrskaja, which had been present in the collection at Wurzen since 1982. In the amended final report of the technical examination of the candidate variety, the Bundessortenamt mentioned that the plant material submitted was found to be the same as the variety commonly known as Nojabrskaja, which had been part of the Wurzen collection since 1982. The final amended technical examination report for the candidate variety was sent to the applicant on 23 January 2013. The applicant submitted its observations on 22 February 2013. In particular, it disputed that the variety Nojabrskaja was commonly known and emphasised that the candidate variety had been compared with the variety Gräfin von Paris and found to be different from it.
18      By decision of 29 July 2013, the CPVO rejected the application for a plant variety right (‘the rejection decision’). It emphasised that it was clear from the final technical examination report that the candidate variety was the same as the variety Nojabrskaja and that the latter variety had been present in the Wurzen collection since 1982. It concluded from that that not only was it a commonly known variety but also that it had been sold for a number of years, as was evidenced by the invoices annexed to the objections lodged against the application for a plant variety right. The criterion of novelty stipulated in Article 10 of Regulation No 2100/94 was therefore not fulfilled, and therefore it rejected the application for a plant variety right. The CPVO also upheld the objections lodged against the application for a plant variety right.
19      On 6 September 2013, the applicant brought an appeal against the rejection decision and against the decisions allowing the four objections on the ground, inter alia, that the CPVO had erred in its assessment of the criterion of novelty, referred to in Article 10 of Regulation No 2100/94, with regard to the candidate variety.
20      By email of 3 April 2014, the observations of the CPVO of 28 March 2014 on the applicant’s appeal against the rejection decision and the annexes to those observations were transmitted to the applicant by the Board of Appeal of the CPVO.
21      By a decision of 2 July 2014 (Case A 007/2013) (‘the contested decision’), following the hearing held that day, the Board of Appeal of the CPVO dismissed the applicant’s appeal. The Board of Appeal held that the candidate variety was not new, within the meaning of Article 10 of Regulation No 2100/94, that it did not therefore meet the conditions laid down in Article 6 of that regulation and that none of the applicant’s arguments was well founded. The Board of Appeal took account of various matters in reaching its conclusion that the candidate variety was not new. Amongst other things, it stated that it was clear from the information on the file that the candidate variety was similar in all its characteristics to the variety called Noja Brskaja, which had been developed between 1962 and 1969 and had been included in the collection at Wurzen in 1982, at the latest, and subsequently also in the Bundessortenamt’s reference collection. It also relied on the fact that the debit notes produced by the intervener, which had lodged one of the objections against the application for a plant variety right, indicated that constituents of the candidate variety had been sold within the European Union earlier than one year prior to the date of the application for a plant variety right. The Board of Appeal also emphasised that the statement which the breeder had made was not sufficient to demonstrate that the transfer had been granted by the latter solely for research purposes. Lastly, it stated that it was clear from the statements made by the breeder that the latter had made the candidate variety available for research purposes to the Dresden-Pillnitz Institute in the late 1980s and that, in the absence of any express stipulation on the breeder’s part, the possessor of the plant material was to be deemed to be authorised to transfer the plant material to third parties with the implied consent of the breeder. In the present case, the applicant had failed to show that the horticulture research institutes to which the candidate variety had been distributed were required to obtain the breeder’s consent before transferring the variety to third parties. According to the breeder itself, the Dresden-Pillnitz Institute could have transferred the candidate variety to other federal collections without its authorisation. Therefore, such transfer had to be deemed to have taken place with the breeder’s consent. Finally, the Board of Appeal held that the question of whether the variety was a commonly known variety was irrelevant.
22      The Board of Appeal of the CPVO therefore dismissed the applicant’s appeal and confirmed the rejection decision and the four decisions upholding the objections lodged against that application.
Forms of order sought
23      The applicant claims that the Court should:
–        annul the contested decision;
–        consequently, uphold its appeal against the rejection decision and uphold its appeals against the decisions of the CPVO upholding the objections lodged against its application, find that the candidate variety is new and grant it a Community plant variety right;
–        order the CPVO and the intervener to pay the costs.
24      At the hearing, the applicant, when questioned as to the scope of its second head of claim, stated that its application sought only the annulment of the contested decision, formal note of which was taken.
25      The CPVO contends that the Court should:
–        dismiss the appeal;
–        order the applicant to pay the costs.
26      The intervener claims that the Court should:
–        dismiss the appeal;
–        order the applicant to pay the costs.
Law
Admissibility
27      First, as regards the plea of inadmissibility raised by the CPVO in respect of the applicant’s request that the Court declare the candidate variety is new and to grant a Community plant variety right, it should be noted that, as already stated in paragraph 24 above, at the hearing, the applicant stated that the only head of claim addressed to the Court was that seeking annulment of the contested decision, formal note of which was taken. It must therefore be held that the applicant has withdrawn its other claims referred to in its second head of claim and that there is therefore no need to rule on the plea of inadmissibility.
28      Secondly, the CPVO, supported by the intervener, argues that Exhibits 11, 12A, 12B, 13 and 14 annexed to the application were not produced in the course of the proceedings before it and are therefore inadmissible. The same applies to the searches carried out using the Google search engine concerning the purported sales of plant material of the variety Nojabraskaja, which were produced for the first time before the General Court.The CPVO adds that the applicant makes contradictory statements in asserting, on the one hand, that the new evidence was furnished by way of example and, on the other, that it might have led to a different outcome. Exhibit 15, adduced with the reply, should also be regarded as inadmissible.
29      For its part, the applicant claims that the new documents in question only serve as a further foundation for its standpoints and throw a different light on the legality of the contested decision.
30      In that regard, it should be pointed out that the Court is called upon to assess the legality of the contested decision by reviewing the Board of Appeal’s application of EU law in the light, in particular, of the facts which were submitted to that board; the Court cannot, however, carry out such a review by taking into account matters of fact newly produced before it (see judgment of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 76 and the case-law cited, and order of 21 October 2013, Lyder Enterprise v CPVO — Liner Plants (1993) (SOUTHERN SPLENDOUR), T‑367/11, not published, EU:T:2013:585, paragraph 59). Likewise, in the context of that review of legality, it is not the Court’s function to review the facts in the light of documents produced for the first time before it (see, by analogy, judgment of 12 March 2014, Tubes Radiatori v OHIM — Antrax It (Radiator), T‑315/12, not published, EU:T:2014:115, paragraph 27 and the case-law cited).
31      In the present case, it is common ground that the documents in question, namely Exhibits 11, 12A, 12B, 13 and 14 annexed to the application and Exhibit 15 annexed to the reply, some of which are subsequent to the contested decision, were not produced in the context of the proceedings before the CPVO.
32      In accordance with the case-law cited above, those documents must therefore be rejected as inadmissible. The fact that that evidence merely supports the applicant’s arguments does not alter that conclusion.
33      The CPVO claims that the same applies to the searches carried out using the Google search engine concerning the purported sales of plant material of the variety Nojabraskaja.
34      It should be noted in that regard that the applicant relies on the argument that the search for the word ‘Nojabrskaja’ using the Google search engine does not yield a single hit predating June 2005 and that such a search can no longer find any trace of the businesses whose invoices dating back to 2000, 2001, 2002 and 2003 had been produced in connection with the objections to the application for a plant variety right. However, no document was produced by the applicant in support of its argument and there is therefore no need at this stage to rule on the plea of inadmissibility concerning the searches carried out using the Google search engine. This is, in fact, evidence adduced in support of a substantive argument as to the novelty of the candidate variety, the probative value of which must, where appropriate, be assessed in the context of the examination of the merits of the present action.
35      It follows from the foregoing that Exhibits 11, 12A, 12B, 13 and 14 annexed to the application and Exhibit 15 annexed to the reply must be declared inadmissible.
Substance
36      The applicant essentially advances two pleas in law. The first plea alleges infringement of Article 75 of Regulation No 2100/94, while the second alleges infringement of Article 10 of that regulation.
The first plea in law, alleging infringement of Article 75 of Regulation No 2100/94
37      The applicant claims that, on the one hand, the email from the Bundessortenamt of 24 August 2005 and, on the other, the two letters from the breeder of 8 August 2008, were not sent to it until 3 April 2014, as an attachment to the email from the Board of Appeal which forwarded the observations of the CPVO concerning its appeal against the decision rejecting the complaint, together with the annexes to those observations. It therefore alleges breach of the principle that proceedings should be adversarial and infringement of Article 75 of Regulation No 2100/94.
38      The CPVO and the intervener dispute the applicant’s arguments.
39      Article 75 of Regulation No 2100/94 states that decisions of the CPVO must be accompanied by statements of the grounds on which they are based and may be based only on grounds or evidence on which the parties to proceedings before the CPVO have had an opportunity to present their comments orally or in writing.
40      Observation of the rights of the defence, a general principle of EU law, compliance with which by the CPVO Article 75 of Regulation No 2100/94 seeks to ensure, means, as a rule, that the parties to proceedings are given the opportunity to comment on the facts and documents on which a judicial decision will be based and to discuss the evidence produced and the observations made to the court as well as the pleas in law on which the court intends to base its decision. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be able to debate the matters of fact and of law which will determine the outcome of the proceedings. In other words, that right must be construed as meaning that it guarantees that the parties will not be confronted with a completely unexpected judicial decision. However, this does not mean that the judge must grant the parties the right to be heard on every point of his legal assessment before delivering his judgment (see 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, paragraphs 180 and 181 and the case-law cited).
41      First, the applicant maintains that the email of 24 August 2005 from the Bundessortenamt was not sent to it until 3 April 2014 and that, if the CPVO had sent it that email as soon as it received it, it would have been able to gather evidence to demonstrate the novelty of the candidate variety and to throw a new light on the facts of the case. However, it had not been in a position to react until the oral part of the procedure before the Board of Appeal. The applicant adds, in its reply, that its email of 30 November 2005 was a reaction to the CPVO’s email of 21 October 2005, not to the email sent by the Bundessortenamt on 24 August 2005, which contained lengthy observations about the novelty of the candidate variety going far beyond those in the CPVO’s email of 21 October 2005.
42      It is apparent from the documents submitted to the Court that, in the email of 24 August 2005 from the Bundessortenamt, it informed the CPVO that some clarification was needed. In particular, the Bundessortenamt stated that it appeared from the applicant’s application that the candidate variety had been listed in Ukraine and Moldova, but had not been sold. It informed the CPVO that it could not be ruled out that the candidate variety had been sold. It stated that the candidate variety, named Xenia at the time, had been included in its own reference collection for more than 20 years, that it had been sold in Switzerland by certain nurseries under the name Novembra for approximately 6 years and that other nurseries had informed it of their intention to sell it in Germany.
43      Although it is true that the email of 24 August 2005 from the Bundessortenamt was not forwarded to the applicant at the time, the fact remains that, in the email of 21 October 2005 from the CPVO (see paragraph 4 above), the latter highlighted the reservations which the Bundessortenamt had expressed concerning the novelty of the candidate variety. More specifically, in that email of 21 October 2005, the CPVO informed the applicant that the candidate variety had been included in the Bundessortenamt’s reference collection for more than 20 years and that it had been sold in Switzerland for 6 years, which appeared to defeat the requirement of novelty. It therefore invited the applicant to submit its observations.
44      It must be considered that, in so doing, in its email of 21 October 2005, the CPVO essentially reproduced the content of the Bundessortenamt’s email of 24 August 2005. The applicant’s assertion that the email of 24 August 2005 from the Bundessortenamt contained lengthy observations about the novelty of the candidate variety going far beyond those in the CPVO’s email of 21 October 2005 must be rejected as unfounded. The elements of the Bundessortenamt’s email of 24 August 2005 not included in the CPVO’s email of 21 October 2005 relate essentially to the names of the nurseries which commercially exploited the candidate variety in Switzerland and the intention of nurseries in Germany to commercialise it. The summary set out in the email of 21 October 2005 from the CPVO must therefore be regarded as reflecting the content of the email of 24 August 2005 from the Bundessortenamt.
45      Furthermore, in accordance with the CPVO’s request to clarify the question of the Bundessortenamt’s reservations concerning the novelty of the candidate variety, the applicant submitted its observations by email of 30 November 2005, also referring to a telephone conversation which it had with the services of the CPVO. In its observations, it stated that the breeder had assured it that it had not sold the candidate variety for the purposes of its commercial exploitation. The applicant added that the inclusion of a variety in a reference collection several years old did not affect the novelty of the candidate variety.
46      It follows from all of those considerations that, contrary to what the applicant maintains, it was duly informed of the contents of the email of 24 August 2005 from the Bundessortenamt and could submit its observations concerning the novelty of the candidate variety. The applicant’s argument that its email to the CPVO of 30 November 2005 sought to reply to the email from the CPVO of 21 October 2005 and not to the email of 24 August 2005 from the Bundessortenamt does not alter that conclusion.
47      Lastly, the email of 24 August 2005 from the Bundessortenamt was, in any event, communicated to the applicant on 3 April 2014, as the applicant submits. On that date, the hearing before the Board of Appeal had not yet taken place and the email of 24 August 2005 from the Bundessortenamt could therefore still be the subject of observations by the applicant on that occasion.
48      It follows that, as regards the email of 24 August 2005 from the Bundessortenamt, the adversarial principle and the rights of the defence have been respected.
49      Secondly, the applicant maintains that the two letters from the breeder of 8 August 2008 were not sent to it until 3 April 2014, that is, too late having regard to the adversarial principle and infringement of Article 75 of Regulation No 2100/94.
50      It must be pointed out that the two letters from the breeder of 8 August 2008 are addressed to the administrator and the representative of the intervener. In those letters, the breeder states that, at the end of the 1980s, the candidate variety, of which it is the breeder, had been sent for research purposes to the Dresden-Pillnitz Institute in the context of a cooperation agreement, and that the Dresden-Pillnitz Institute might have transferred that variety to other collections without its authorisation. However, relying on its copyright, it requested the intervener, inter alia, to cease all production and sale of fruit trees of the candidate variety and to withdraw its objection to the application for a plant variety right filed on 16 October 2007. Those letters were sent by the breeder to the CPVO, which received them on 8 September 2008.
51      The parties disagree as to the date on which the applicant became aware of the two letters from the breeder of 8 August 2008. The applicant claims that it became aware of it only on 3 April 2014, whereas the CPVO contends that it was aware of it before, through the breeder, and that, furthermore, those letters had been sent on 14 December 2011, when the file concerning the objections was forwarded.
52      It should be noted that, contrary to what the CPVO contends, it is not apparent from the documents in the case file that it was the breeder that brought to the attention of the applicant the two letters from the breeder of 8 August 2008. Clearly, that is possible in view of their contractual relationship, since the breeder transferred its rights in respect of the candidate variety to the applicant. However, the reasoning of the CPVO, which seeks to deduce from the contact between the breeder and the applicant that it would seem logical that the applicant had been informed of the letters in question, is not sufficient to prove that those letters were communicated to it by the breeder. Moreover, as the CPVO pointed out, the two letters from the breeder of 8 August 2008 were not raised by the applicant in the written procedure before the CPVO.
53      Nor is it apparent from the evidence in the file that the CPVO had, as it contends, communicated to the applicant, on 14 December 2011, the two letters from the breeder of 8 August 2008.
54      In response to a measure of organisation of procedure on that issue, the CPVO submitted certain documents which do not reveal any evidence in that regard. The email of 14 December 2011, addressed in particular to the applicant (see paragraph 15 above), merely mentions that it is sending a copy of the file concerning the objections received by the CPVO, without establishing that the two letters from the breeder of 8 August 2008 were included in that file. When questioned on this point at the hearing, the CPVO admitted that it was unable to produce evidence that the two letters from the breeder of 8 August 2008 were attached to the email of 14 December 2011.
55      The CPVO also produces the letter of 8 August 2008 sent to it by the breeder (see paragraph 11 above), in which the latter refers to its disagreement with the illegal production of trees of the Noiabriskaia variety of pears in Germany and refers to the submissions of the intervener’s lawyer. The CPVO also refers to the letter of 18 April 2008 from the intervener’s lawyer, in which it refers to the applicant’s actions and forwards two sworn statements (see paragraph 8 above). Finally, the CPVO refers to its letter of 7 May 2008 transmitting those sworn statements to the applicant.
56      However, none of the documents referred to in paragraph 55 above prove that the two letters from the breeder of 8 August 2008 had been forwarded.
57      It must therefore be held that communication to the applicant, before the 3 April 2014, of the two letters from the breeder of 8 August 2008 has not been proven.
58      However, even if the applicant only became aware of the two letters from the breeder of 8 August 2008 on 3 April 2014, as it claims, that does not demonstrate in what way such a circumstance infringed its rights of defence.
59      First, on that date, the hearing before the Board of Appeal had not yet taken place and the two letters from the breeder of 8 August 2008 could therefore still be discussed on that occasion before the Board of Appeal.
60      Secondly, the applicant has not established how the allegedly late production of the two letters from the breeder of 8 August 2008 adversely affected it, that is to say, how its defence might have been better assured had those letters been available to it earlier (see, to that effect, judgment of 2 October 2003, Corus UK v Commission, C‑199/99 P, EU:C:2003:531, paragraph 20). In that regard, its argument that the documents at issue were decisive has not been substantiated. The applicant states that the Board of Appeal referred to the two letters from the breeder of 8 August 2008 to confirm that the commercially exploited varieties Nojabrskaja and Nojabraskaja Novembra were the same variety as the candidate variety, which it disputes. However, that point was already in dispute and had been discussed on several occasions by the applicant before the CPVO, in particular in the context of its observations concerning the objections raised against the application for a plant variety right. Moreover, the two letters from the breeder of 8 August 2008 appear to be favourable to the applicant’s argument concerning the novelty of the candidate variety and the lack of consent of the breeder, which was also in dispute during the procedure before the CPVO.
61      Consequently, the applicant has wholly failed to demonstrate that the two letters from the breeder of 8 August 2008 constituted decisive documents, the allegedly late production of which infringed its rights of defence.
62      In view of the above, the first plea in law, alleging infringement of Article 75 of Regulation No 2100/94, must be rejected.
The second plea in law, alleging a breach of Article 10 of Regulation No 2100/94
63      The Board of Appeal rejected the application for a plant variety right on the ground that the candidate variety was not new within the meaning of Article 10 of Regulation No 2100/94. It considered, first, that the candidate variety and the variety known as Nojabrskaja or Nojabrskaja Novembra were similar and, secondly, that the candidate variety was not new in so far as constituents of that variety had already been sold in the years 2000 to 2003, as evidenced by invoices produced by the objectors to the application for a plant variety right.
64      The applicant disputes the Board of Appeal’s assessment on two points. First, it alleges that the plant material sold under the name Nojabrskaja or Nojabrskaja Novembra did not belong to the candidate variety and, secondly, that the candidate variety was new within the meaning of Article 10 of Regulation No 2100/94.
65      The CPVO and the intervener dispute the applicant’s arguments.
66      As a preliminary point, it should be noted that Article 6 of Regulation No 2100/94 provides that Community plant variety rights are to be granted for varieties that are distinct, uniform, stable and new.
67      When an application for a Community plant variety right is lodged, the CPVO first carries out a substantive examination, provided for by Article 54 of Regulation No 2100/94, as to whether, inter alia, the variety is new pursuant to Article 10 of that regulation. It also carries out a technical examination, provided for in Article 55 of Regulation No 2100/94, which seeks to ensure that compliance with the conditions of distinction, uniformity and stability laid down in Articles 7 to 9 of that regulation is monitored, in at least one of the Member States, by the competent office or offices.
68      Article 10 of Regulation No 2100/94, relating to the criterion of novelty, states as follows:
‘1. A variety shall be deemed to be new if, at the date of application determined pursuant to Article 51, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder within the meaning of Article 11, for purposes of exploitation of the variety:
(a)      earlier than one year before the abovementioned date, within the territory of the [European Union];
(b)      earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the [European Union].
2. The disposal of variety constituents to an official body for statutory purposes, or to others on the basis of a contractual or other legal relationship solely for production, reproduction, multiplication, conditioning or storage, shall not be deemed to be a disposal to others within the meaning of paragraph 1, provided that the breeder preserves the exclusive right of disposal of these and other variety constituents, and no further disposal is made. However, such disposal of variety constituents shall be deemed to be a disposal in terms of paragraph 1 if these constituents are repeatedly used in the production of a hybrid variety and if there is disposal of variety constituents or harvested material of the hybrid variety.
...’
69      Pursuant to Article 73 of Regulation No 2100/94, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal of the CPVO by reviewing their application of EU law, having regard, in particular, to the facts which were submitted to them. Accordingly, the General Court may carry out a full review of the legality of decisions of the Boards of Appeal of the CPVO, if necessary examining whether the Board of Appeal concerned made a correct legal characterisation of the facts of the dispute or whether its appraisal of the facts placed before it was flawed (see judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑534/10 P, EU:C:2012:813, paragraphs 38 to 40 and the case-law cited).
70      It is apparent from case-law that, where the factual findings and assessments made by the Board of Appeal are the result of complex assessments in the botanical or genetics field, requiring expert or specific scientific or technical knowledge, the review carried out by the General Court is limited to ascertaining whether there has been a manifest error (judgments of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77, and of 19 November 2008, Schräder v CPVO (SUMCOL 01), T‑187/06, EU:T:2008:511, paragraphs 59 to 63). That is true, for example, of the assessment of the distinctive character of a variety, in the light of the criteria set out in Article 7(1) of Regulation No 2100/94.
71      On the other hand, as regards factual assessments which are not of a specific technical or scientific complexity, it is apparent from the case-law that the General Court carries out a full review of legality (judgments of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77, and of 19 November 2008, SUMCOL 01, T‑187/06, EU:T:2008:511, paragraph 65).
72      In so far as examination of the question of the novelty of the candidate variety at issue in the present case does not require particular expertise or technical knowledge, it is necessary to examine the applicant’s claims by carrying out a comprehensive judicial review.
73      Furthermore, as regards the burden of proof, Article 76 of Regulation No 2100/94 provides that, in proceedings before it, the CPVO is to make investigations on the facts of its own motion, to the extent that they come under the examination pursuant to Articles 54 and 55 of that regulation. It is to disregard facts or items of evidence which have not been submitted within the time limit set by the CPVO. That provision applies to proceedings before the Board of Appeal (judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraph 46).
74      Furthermore, in the procedure for granting Community plant variety rights, the candidate plant variety, under Articles 54 and 55 of Regulation No 2100/94, must undergo a substantive examination and a thorough and complex technical examination. In that context, the applicant, which disputes the result of those examinations, must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the decision adopted following those examinations (see, to that effect and by analogy, judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraphs 55 and 57).
75      It is in the light of those principles that the applicant’s two complaints must be examined.
–       The first complaint, alleging that the Board of Appeal erred in its assessment that the plant material sold belongs to the candidate variety
76      The applicant maintains that the Board of Appeal merely considers it likely, without proving it, that the plant material sold under the name Nojabrskaja or Nojabrskaja Novembra belonged to the candidate variety.
77      The CPVO and the intervener dispute the applicant’s arguments.
78      On that point, it should be noted that, contrary to the applicant’s submission, the Board of Appeal relied on several factors, which were not contradicted by the applicant, to conclude, in the contested decision, that the candidate variety was the same as the variety called Noiabriskaia.
79      In the first place, the Board of Appeal stated that the similarity between the candidate variety and the variety Nojabrskaja had been clearly pointed out by the Bundessortenamt. At the request of the CPVO of 2 February 2011, the Bundessortenamt indicated, by email of 9 February 2011 (see paragraph 14 above), that the plant material submitted for the technical examination of the candidate variety was identical to the variety Nojabrskaja, obtained in 1962 in Moldova, disseminated in 1969 and introduced into the collection in Wurzen in 1982 from an unknown source. It added that plant material of that variety had been propagated in a nursery in Magdeburg and sold in the former German Democratic Republic since 1985.In the email sent to the CPVO on 7 November 2012 (see paragraph 16 above), the Bundessortenamt reaffirmed that there was no doubt that the candidate variety and the variety Nojabrskaja were the same variety. It added that the problem was therefore more an issue of novelty than of distinctiveness.
80      In the second place, the Board of Appeal relied on the fact that the similarity between the candidate variety and the variety Nojabrskaja was confirmed by the two letters from the breeder of 8 August 2008, which were sent to the CPVO on 8 September 2008. As the Board of Appeal stated, the breeder, relaying on its copyright, asked the intervener and its representative to cease all production and sale of fruit trees of the variety Noiabriskaia and to withdraw the objection of 16 October 2007. It follows implicitly, therefore, that the breeder itself admits that the variety sold by the intervener, who is the objector, is identical to the candidate variety, which is the subject of the application for a plant variety right.
81      In the third place, as the Board of Appeal pointed out, the applicant itself sent a letter of 10 December 2007 to a nursery established in Germany, informing it that it was selling trees bearing the name of Nojabraskaja belonging to the candidate variety and requesting to be kept informed of the number of trees sold. That letter confirms that the applicant itself considers that the variety Nojabraskaja is a plant material belonging to the candidate variety.
82      It follows from these considerations that the applicant is wrong in asserting that the Board of Appeal did not demonstrate that the candidate variety and the variety Nojabrskaja were identical.
83      Moreover, contrary to what the applicant submits, the Board of Appeal did not rely solely on the two letters from the breeder of 8 August 2008, but also on evidence provided by the Bundessortenamt, which the CPVO had requested to clarify its position in that regard.
84      Furthermore, the applicant, who also mentioned in the application for a plant variety right that the candidate variety was designated by the breeder under the name Noiabriskaia, did not submit any evidence that the Board of Appeal’s assessment was wrong that regard.
85      It was, therefore, without any error of assessment that the Board of Appeal found that the candidate variety and the variety Nojabrskaja were identical.
86      The applicant’s first head of claim must therefore be rejected.
–       The second complaint, alleging that the Board of Appeal erred in its assessment concerning the novelty of the candidate variety
87      The applicant disputes the lack of novelty of the candidate variety. It argues that, in the late 1980s, the Dresden-Pillnitz Institute received plant material of the candidate variety purely for research purposes and was not permitted to make that material available to third parties without the consent of the breeder. According to the applicant, although the text of the agreement between the breeder and the Dresden-Pillnitz Institute can no longer be submitted, the fact remains that, at the time, it was forbidden to sell, give away, transfer or distribute plant material without the consent of the breeder, as evidenced by agreements concerning other varieties. It therefore argues that the breeder never gave its consent to the transfer of plant material of the candidate variety for the purposes of its exploitation, within the meaning of Article 10 of Regulation No 2100/94, prior to the date of the application for a plant variety right. Any transfer for research purposes does not affect the novelty of the candidate variety. The applicant concludes that the candidate variety is sufficiently new to warrant protection.
88      The CPVO and the intervener dispute the applicant’s arguments.
89      In the first place, it should be noted that the applicant stated, in the application for a plant variety right, that the breeder had transferred its rights to the candidate variety to the applicant under a contract, which it annexed, and indicated that the candidate variety had not been sold or exploited previously.
90      It is apparent from several documents in the case file that constituents of the candidate variety had previously been sold to third parties and commercially exploited.
91      As was stated in paragraph 25 of the contested decision, the candidate variety was present in the collection at Wurzen at the latest in 1982 and subsequently in the reference collection of the Bundessortenamt.
92      It must also be noted that invoices were submitted by the objectors to the application for a plant variety right and that those invoices attest to the fact that constituents of the candidate variety had already been sold in the years 2000 to 2003. As was stated in paragraph 26 of the contested decision, those invoices relate to sales of plant material belonging to the Nojabrskaja variety between 2000 and 2003. Since that variety is the same as the candidate variety, those invoices must be regarded as relating to plant material of the candidate variety.
93      It is also clear from the two sworn statements of 16 April 2008, sent by the intervener to the CPVO (see paragraph 8 above), that the candidate variety had been present on the European market for several years.
94      Finally, the breeder itself stated in one of its two letters of 8 August 2008 (see paragraph 9 above) that the candidate variety had been sent for research purposes to the Dresden-Pillnitz Institute in the context of a cooperation agreement and that, ‘unfortunately’, that institute ‘could transmit the [candidate variety] to other federal collections’ without its authorisation.
95      It must therefore be held that, in the present case, a transfer of the candidate variety by the breeder occurred before the date of the application for a plant variety right.
96      In the second place, the applicant maintains that the transfer to the Dresden-Pillnitz Institute was solely for research purposes, which would not affect the novelty of the candidate variety within the meaning of Article 10 of Regulation No 2100/94.
97      In that regard, first, the cooperation contract concluded between the breeder and the Dresden-Pillnitz Institute, the transferee of the variety, was not produced before the CPVO.
98      Secondly, as the Board of Appeal pointed out in paragraph 27 of the contested decision, the declaration by the breeder claiming that it transferred the candidate variety solely for research purposes does not, on its own, constitute sufficient evidence to establish that the candidate variety was transferred only for research purposes.
99      The case-law makes it clear that, 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. Furthermore, even where an affidavit has been drawn up in accordance with Article 78(1)(g) of Regulation No 2100/94, it cannot be attributed probative value, where it has been drawn up by persons associated with the applicant, unless it is supported by other evidence (see order of 21 October 2013, SOUTHERN SPLENDOUR, T‑367/11, not published, EU:T:2013:585, paragraph 49 and the case-law cited).
100    In the present case, the declaration by the breeder, that the candidate variety had not been transferred for the purposes of its exploitation prior to the application for a plant variety right cannot, in itself, be regarded as sufficient evidence. The breeder is associated with the applicant under the contract transferring the breeder’s rights over the candidate variety to the applicant. Such a declaration should therefore be supported by other evidence.
101    Thirdly, it is true that, in its two letters of 8 August 2008, the breeder invoked the protection of its copyright in order to request the intervener to cease all production and sale of fruit trees of the variety Noiabriskaia and to withdraw its objection of 16 October 2007.
102    However, when questioned in this regard under a measure of organisation of the procedure, the applicant stated that it had not been associated with those actions of the breeder and did not provide any specific information concerning the follow-up on those actions. Furthermore, it did not produce any evidence to support the existence of an exclusive right of disposal allegedly held by the breeder over the candidate variety. The applicant merely stated that the breeder had repeatedly declared that it had never authorised the reproduction or sale by third parties of the variety Noiabriskaia. The applicant did, however, produce a letter dated 7 March 2006 that the breeder had sent to it to that effect. However, such a letter is not sufficient to prove the existence of an exclusive right to transfer the candidate variety.
103    Fourthly, the applicant maintains that, at the time of the transfer to the Dresden-Pillnitz Institute, it was forbidden to sell, give away, transfer or distribute plant material without the breeder’s consent, as evidenced by agreements concerning other varieties.
104    However, the agreements in question, dating from 2000 and 2002, are set out in Exhibits 12A and 12B annexed to the application, which were previously declared inadmissible (see paragraphs 31 and 32 above). In any event, these agreements do not concern the candidate variety and the argument based on those agreements is therefore ineffective.
105    Fifthly, the applicant claims that the search for the term ‘Nojabrskaja’ using the Google search engine does not yield a single hit predating June 2005 and that such a search can no longer find any trace of the businesses whose invoices, dating back from 2000 to 2003, had been produced to support the objections to the application for a plant variety right lodged with the CPVO (see paragraph 34 above).
106    However, that assertion by the applicant is not substantiated in any way. Moreover, and in any event, such an argument is irrelevant to the assertion that the transfer by the breeder was for research purposes only and therefore does not demonstrate in any way the existence of such a transfer in the present case.
107    Consequently, the evidence produced by the applicant is not sufficient to demonstrate that the breeder had transferred the candidate variety for research purposes only and cannot give rise to serious doubts as to the legality of the contested decision, within the meaning of the case-law cited above (see paragraph 74 above).
108    In the light of all the foregoing, it must be held that the Board of Appeal of the CPVO was fully entitled to conclude that the candidate variety was not new within the meaning of Article 10 of Regulation No 2100/94.
109    It follows that the second claim must be rejected and, therefore, that the second plea in law must be dismissed in its entirety.
110    It follows from all of the foregoing that the present action must be dismissed in its entirety.
Costs
111    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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the CPVO and the intervener.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Boomkwekerij van Rijn-de Bruyn BV to pay the costs.
Berardis
Spielmann
Csehi
Delivered in open court in Luxembourg on 13 July 2017.
E. Coulon
S. Frimodt Nielsen
Registrar      President
*      Language of the case: English.