JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
29 May 2024 (*)
(Plant varieties – Invalidity proceedings – Grant of a Community plant variety right for the variety Sempervivum Belsemred1 – Novelty of the variety – Distinctness of the variety – Article 20(1)(a) of Regulation (EC) No 2100/94 – Articles 7 and 10 of Regulation No 2100/94 – Burden of proof – Lack of evidence)
In Case T‑77/23,
Jaw de Croon Holding BV, established in Apeldoorn (Netherlands), represented by T. Overdijk, lawyer,
applicant,
v
Community Plant Variety Office (CPVO), represented by M. García-Moncó Fuente, F. Mattina and O. Lamberti, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of the CPVO and intervener before the General Court, being
Belgicactus, established in Westerlo (Belgium), represented by C. van den Heuvel, lawyer,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva and P. Zilgalvis (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular the written questions put by the Court to the parties and their replies to those questions lodged at the Court Registry on 4 and 6 December 2023,
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, Jaw de Croon Holding BV, seeks the annulment of the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 16 December 2022 (Case A 24/2021) (‘the contested decision’).
Background to the dispute
2        On 27 November 2015, the intervener, Belgicactus, filed an application for a Community plant variety right with the CPVO pursuant to 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’) for the variety Belsemred1 (‘the contested variety’) of the species Sempervivum arachnoideum L.  The application for a plant variety right was registered under number 2015/2893.
3        The CPVO asked the Bundessortenamt (Federal Plant Variety Office, Germany) (‘the Examination Office’) to carry out the technical examination in accordance with Article 55(1) of Regulation No 2100/94 (‘the technical examination’ or ‘the DUS examination’). The Examination Office was responsible, in particular, for examining whether the contested variety was distinct from the most similar varieties whose existence was a matter of common knowledge on the date of the application for a Community plant variety right, within the meaning of Article 7(1) of Regulation No 2100/94, including the Silberkarneol variety.
4        On 23 November 2017, the Bundessortenamt sent the CPVO the final technical report.
5        On 19 March 2018, the CPVO granted the intervener the Community plant variety right applied for, registered under number 48565, for the variety Belsemred1.
6        On 28 October 2019, the applicant filed an application for nullity of the Community plant variety right granted to the intervener, pursuant to Article 20 of Regulation No 2100/94, on the ground that the variety Belsemred1 did not fulfil the conditions of distinctness and novelty laid down in Articles 7 and 10 of that regulation. In particular, the applicant claimed that a Sempervivum Red variety, a mutant of the Silberkarneol variety, identical or similar to the contested variety, had existed since 2007 and has been traded in large quantities since approximately 2009/2010. Similarly, it submitted that the technical examination of the contested variety had not been carried out properly in so far as that examination excluded the Sempervivum Red, which was known and the plants of which were marketed at least one year before the application for a plant variety right in respect of the contested variety.
7        On 6 April 2020, the Bundessortenamt submitted observations at the CPVO’s request, stating that the Silberkarneol variety had been part of the technical examination of the contested variety. As regards the Sempervivum Red variety, the Examination Office stated that it could not be found in the sources available, including expert opinions and the internet.
8        By decision of 18 October 2021 (No NN28), the CPVO rejected the application for nullity on the ground that the variety Belsemred1 met the requirements of distinctness and novelty. In essence, the CPVO considered that the evidence provided by the applicant, even considered as a whole, did not appropriately support the applicant’s arguments. While the CPVO considered that the documents submitted were prima facie likely to raise doubts as to the validity of the title granted, the applicant was not able to positively call into question the legality of the right granted to the contested variety.
9        On 17 December 2021, the applicant filed an appeal against the CPVO’s decision.
10      By the contested decision, the Board of Appeal dismissed the appeal on the grounds, first, that the CPVO had not infringed the procedural rules, secondly, that the CPVO had correctly exercised its duty to investigate in the light of its discretion and, thirdly, that the applicant had not been able to sufficiently substantiate the need for a new technical examination.
Forms of order sought
11      The appellant claims, in essence, that the Court should:
–        annul or set aside the contested decision;
–        order the CPVO to declare the Community plant variety right granted to the contested variety null and void or, alternatively, order the CPVO to undertake further evidence taking on issues to be identified by the Court;
–        order the CPVO to pay the costs.
12      The CPVO contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
13      The intervener claims that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs of the present proceedings, ‘previous proceedings and all other proceedings, including non-recoverable costs’.
14      In its reply to the questions put by the Court, the applicant withdrew its second head of claim.
Law
Admissibility of Annex A.5 to the application
15      The CPVO contends that the document produced in Annex A.5 to the application should be deemed inadmissible as it was not available to the Board of Appeal at the time of the contested decision and is, in any event, not relevant.
16      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 CPVO Board of Appeal’s application of EU law in the light of, in particular, 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. 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 judgment of 13 July 2017, Boomkwekerij van Rijn-de Bruyn v CPVO – Artevos (Oksana), T‑767/14, not published, EU:T:2017:494, paragraph 30 and the case-law cited).
17      Since the document in Annex A.5 to the application was not produced during the administrative procedure before the Board of Appeal, it is submitted for the first time before the Court and must therefore be declared inadmissible.
Admissibility and scope of the pleas and arguments relied on by the applicant
18      The CPVO points to a lack of precision in the identification of the legal basis and the scope of the grounds relied on by the applicant. The application does not contain any express reference to a legal basis; although it raises two of the grounds referred to in Article 73 of Regulation No 2100/94, namely infringement of an essential procedural requirement and infringement of Regulation No 2100/94, it relied only on legal arguments relating to the alleged infringement of procedural requirements. Similarly, in the CPVO’s view, the application refers to numerous factual issues, tackles rather peripheral circumstances and enters into an unclear assessment of some pieces of evidence analysed in the proceedings before the Board of Appeal. Furthermore, the CPVO contends that the applicant’s use of the wording ‘Sempervivum Red’ could give the impression that it is a prior variety, while the claims refer to generic, poorly described plant material.
19      In the present case, it should be noted, as is apparent from paragraph 6 of the application, that the applicant bases its action on two pleas in law, first, infringement of essential procedural requirements and, second, infringement of Regulation No 2100/94 or of any rule of law relating to its application, including the TEU and the TFEU. At the same time, only the heading ‘infringement of essential procedural requirements’ appears subsequently. Under that heading, the applicant addresses, as the CPVO has pointed out, four topics, namely, first, the facts to be proved and the burden of proof, second, whether the applicant provided sufficient proof of the existence of its variety Sempervivum Red before the date on which the contested variety was filed, third, whether the CPVO should have organised a second DUS examination and, lastly, fourth, issues which are of no or limited relevance in terms of a debate about the giving of evidence. On several occasions, the applicant refers to the infringement of essential procedural requirements in the context of its arguments.
20      In that regard, it should be recalled that Article 177(1)(d) of the Rules of Procedure of the General Court provides that the application must contain ‘the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law’.
21      Similarly, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that same statute, and Article 177(1)(d) of the Rules of Procedure of the General Court, the application must, inter alia, contain a statement summarising the pleas relied on. It must, accordingly, specify the grounds on which the action is based, with the result that a mere abstract statement of the grounds is not sufficient to satisfy the requirements of the Statute of the Court of Justice of the European Union and the Rules of Procedure. Moreover, that summary – albeit concise – must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if an action or, more specifically, a plea in law, is to be admissible – that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (judgment of 4 October 2018, Blackmore v EUIPO – Paice (DEEP PURPLE), T‑344/16, not published, EU:T:2018:648, paragraph 59).
22      Thus, in so far as the applicant alleges ‘an infringement of Regulation No 2100/94 or of any rule of law relating to its assessment, including the TEU and the TFEU’, that plea is inadmissible pursuant to Article 177(1)(d) of the Rules of Procedure because it is imprecise.
23      However, according to the case-law, a party is not required to indicate expressly the provisions on which its pleas are based. It is sufficient for the subject matter of that party’s application and the main points of fact and law on which it is based to be set out sufficiently clearly in the application (see judgment of 23 November 2017, Aurora v CPVO – SESVanderhave (M 02205), T‑140/15, EU:T:2017:830, paragraph 38 and the case-law cited).
24      In the present case, as is apparent from the application, the applicant grouped its arguments under four topics (see paragraph 19 above). Even though, to a large extent, the applicant confines itself to reproducing and commenting on the findings of the Board of Appeal, it nevertheless calls into question the assessments contained in the contested decision relating to the evidence which it adduced to dispute the distinctness and novelty of the contested variety.
25      Thus, it must be held that the arguments put forward by the applicant do not relate solely to procedural aspects and, consequently, cannot be assessed solely in the context of the plea alleging infringement of essential procedural requirements, as the CPVO suggests. Moreover, in its reply to the written questions put by the Court, the applicant disputes the latter assertion of the CPVO and submits that its arguments relate both to compliance with the essential procedural requirements and to the merits of the contested decision.
26      Accordingly, it must be held that the applicant relies, in essence, on two pleas in law alleging, first, infringement of essential procedural requirements and, second, infringement of Articles 7 and 10 of Regulation No 2100/94.
The first plea, alleging infringement of essential procedural requirements
27      The applicant alleges infringement of essential procedural requirements by the Board of Appeal on several occasions. Accordingly, it submits that the Board of Appeal’s reasoning and motivation in the contested decision to explain why the evidence was considered insufficient and unconvincing includes ‘so many flaws that the reasoning of the contested decision should considered to be in breach of essential procedural requirements’.
28      More specifically, the applicant submits that the Board of Appeal could not overlook the undisputed fact that the applicant would never have been able to build up a stock of 50 000 plants in 2018 if it had acquired one or more plants of the contested variety when it was placed on the market by the intervener in 2017. The fact that the Board of Appeal disregarded that fact on the ground that it was irrelevant is another reason why the reasoning and motivation of the contested decision is in breach of essential procedural requirements. In short, it considers that the Board of Appeal’s assessment of the evidence is synonymous with a highly imperfect reasoning and motivation of the contested decision and, as such, is a serious breach of procedural regulations.
29      In addition, the applicant submits that the CPVO’s communications with A are clearly incompatible with essential procedural requirements. In its view, due process implies that if there were doubts concerning the truthfulness or significance of A’s statement, A should have been invited to be heard as a witness, either at first instance or by the Board of Appeal. Similarly, the Board of Appeal’s findings concerning doubts as to the truthfulness of A’s statement constituted a flagrant breach of essential procedural requirements. In its reply to the questions put by the Court, the applicant added that, in so far as it learned of the existence of those communications only during the hearing before the Board of Appeal, it was not in a position to duly respond to the CPVO’s arguments concerning the evidentiary value of that evidence.
30      The CPVO and the intervener dispute the applicant’s arguments.
31      In the present case, it must be pointed out that, in its plea alleging infringement of essential procedural requirements, the applicant alleges, first, breach of the obligation to state reasons and, second, infringement of its rights of defence. In that regard, it should be noted that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU (see judgment of 9 March 2023, Les Mousquetaires and ITM Entreprises v Commission, C‑682/20 P, EU:C:2023:170, paragraph 39 and the case-law cited). Similarly, observance of the rights of the defence is an essential procedural requirement (see judgment of 10 May 2001, Kaufring and Others v Commission, T‑186/97, T‑187/97, T‑190/97 to T‑192/97, T‑210/97, T‑211/97, T‑216/97 to T‑218/97, T‑279/97, T‑280/97, T‑293/97 and T‑147/99, EU:T:2001:133, paragraph 134 and the case-law cited).
32      As regards, in the first place, the obligation to state reasons, it should be borne in mind that, under the first sentence of Article 75 of Regulation No 2100/94, decisions of the CPVO must state the reasons on which they are based. The obligation to state reasons thus established has the same scope as that under Article 296 TFEU and has the twofold purpose of enabling the parties concerned to know the reasons for the measure adopted in order to be able to defend their rights and of enabling the EU Courts to review the legality of the decision (see judgment of 5 February 2019, Mema v CPVO (Braeburn 78 (11078)), T‑177/16, EU:T:2019:57, paragraph 43 and the case-law cited).
33      Moreover, the obligation to state reasons may be satisfied without it being necessary to respond expressly and exhaustively to all the arguments raised by an applicant, provided that the CPVO sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 5 February 2019, Braeburn 78 (11078), T‑177/16, EU:T:2019:57, paragraph 44 and the case-law cited).
34      In that regard, it must be stated that the Board of Appeal carried out an exhaustive analysis of the evidence submitted by the applicant (see paragraphs 54 to 72 of the contested decision) and explained why, in its view, that evidence was insufficient to call into question legitimately the novelty and distinctness of the contested variety.
35      Consequently, no inadequate statement of reasons can be found in the present case. The reasoning of the Board of Appeal is set out clearly and unequivocally, in such a way as to enable the applicant to ascertain, to the requisite legal standard, the reasons for the measure adopted.
36      As regards the more specific claim that the rejection by the Board of Appeal, as irrelevant, of the fact that the applicant would never have been able to build up a stock of 50 000 plants in 2018 if it had acquired one or more plants of the contested variety when it was placed on the market in 2017 constitutes another reason why the reasoning and motivation would entail an infringement of essential procedural requirements, it must be stated that that claim relates to the substance and not to the statement of reasons.
37      As regards, in the second place, the alleged infringement of the rights of the defence, while it is true that the applicant only learned during the proceedings before the Board of Appeal that the CPVO had contacted A for clarifications, the fact remains that it was in a position to comment on those exchanges at the hearing before that Board of Appeal.
38      In any event, it must be borne in mind that the rights of the defence are infringed by reason of a procedural irregularity only in so far as the irregularity actually has an effect on the ability of the undertakings concerned to defend themselves. Consequently, non-compliance with rules in force, the purpose of which is to protect the rights of the defence, can vitiate the administrative procedure only if it is shown that the procedure could have had a different outcome if the rules had been observed (see judgment of 21 April 2021, Hasbro v EUIPO – Kreativni Dogadaji (MONOPOLY), T‑663/19, EU:T:2021:211, paragraph 123 and the case-law cited).
39      In the present case, the applicant has not put forward any fact or argument capable of showing that, if it had been consulted by the CPVO on the exchanges which the latter had with A, the administrative procedure could have resulted in a different outcome.
40      Consequently, the complaint alleging infringement of the applicant’s rights of defence cannot succeed.
41      In view of the above, the first plea in law, alleging infringement of essential procedural requirements, must be rejected.
The second plea in law, alleging errors of assessment of the novelty and distinctness of the contested variety
42      The applicant’s arguments which it has grouped around four topics constitute the four parts of the present plea.
The first part, relating to the evidence to be proved and the burden of proof
43      The applicant claims that it is apparent from the contested decision that it had, as far as possible, to prove that the conditions laid down in Articles 7 and 10 of Regulation No 2100/94 had not been satisfied at the time of the application for a Community plant variety right for the contested variety. In that regard, it acknowledges having developed, before the Board of Appeal, two arguments to the effect that either the contested variety was identical to that of Sempervivum Red and that there was no other variety of common knowledge, or that those two varieties were both mutants of the free variety Silberkarneol. However, according to the applicant, the identity between the variety Sempervivum Red and the contested variety was already recognised by the holder of the latter, which the Board of Appeal disregarded. Thus, it is no longer necessary to prove that the two varieties are not distinct in that they come from the ‘Silberkarneol’ free variety. Therefore, according to the applicant, the only point to be proven is whether it has adduced sufficient evidence of the existence of the Sempervivum Red variety before the date on which the application for a plant variety right was filed.
44      The CPVO and the intervener dispute the applicant’s arguments.
45      As regards, in the first place, the conditions for the grant of a plant variety right, it should be noted that, when an application for a Community plant variety right is filed, the CPVO, carries out, first, a substantive examination, provided for in Article 54 of Regulation No 2100/94, during which it examines, inter alia, whether it is a new variety pursuant to Article 10 of that regulation and, second, a technical examination, provided for in Article 55 of that regulation, which is intended to ensure that compliance with the conditions of distinctness, uniformity and stability laid down in Articles 7 to 9 of that regulation is checked, in at least one of the Member States, by the competent body or bodies (Examination Offices).
46      As regards nullity procedures, it is apparent from Article 20(1)(a) of Regulation No 2100/94 that the CPVO is to declare the Community plant variety right null and void if it is established that the conditions laid down in Article 7 or 10 of that regulation were not complied with at the time of the Community plant variety right.
47      Moreover, under Article 7(1) of Regulation No 2100/94, a variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application determined pursuant to Article 51.
48      As regards the criterion of ‘common knowledge’, Article 7(2) of Regulation No 2100/94 requires a variety of common knowledge to be the object of a plant variety right or an application for a plant variety right. However, these conditions are not exhaustive (see, to that effect, judgment of 19 November 2008, Schräder v CPVO (SUMCOL 01), T‑187/06, EU:T:2008:511, paragraph 99). It is apparent, in particular, from document TGP/3 ‘Varieties of Common knowledge’ (page 5) of the International Union for the Protection of New Varieties of Plants (UPOV), an intergovernmental organisation set up under the International Convention for the Protection of New Varieties of Plants, adopted in Paris (France) on 2 December 1961, to which the European Union has been a party since 29 July 2005, that varieties may be a matter of common knowledge when they are included in publicly accessible plant collections, such as botanical gardens, provided, however, that the material is known and constitutes a variety in accordance with the UPOV definition.
49      As regards novelty, it is apparent from Article 10(1)(a) of Regulation No 2100/94 that a variety is to be deemed new if, within the territory of the European Union, earlier than one year before 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.
50      As regards, secondly, judicial review, Article 73 of Regulation No 2100/94 provides that the General Court is called upon to assess the legality of the decisions of the Boards of Appeal of the CPVO by reviewing the way in which they have applied EU law, specifically in the light of the factual evidence placed before those Boards. Accordingly, the 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 39 and 40 and the case-law cited).
51      As regards the intensity of the judicial review, 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 of assessment (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, paragraphs 59 to 63). That is the case, for example, for the review of the appraisal of the distinctness of a plant variety in the light of the criteria laid down in Article 7(1) of Regulation No 2100/94 (judgment of 19 November 2008, SUMCOL 01, T‑187/06, EU:T:2008:511, paragraph 63).
52      By contrast, 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). Accordingly, it has been held that the examination of the question of the novelty of the candidate variety does not require particular expertise or technical knowledge (judgment of 13 July 2017, Oksana, T‑767/14, not published, EU:T:2017:494, paragraph 72). The same applies to the assessment of the existence of a variety which is a matter of common knowledge, in the light of the criteria set out in Article 7(2) of Regulation No 2100/94, which does not require expertise or special technical knowledge and is not of a complexity such as to justify a limit to the scope of judicial review (judgment of 19 November 2008, SUMCOL 01, T‑187/06, EU:T:2008:511, paragraph 65).
53      As regards, thirdly, the burden of proof, it must be borne in mind that, in accordance with Article 53a(2) 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), the request to the CPVO to open proceedings on nullity, as referred to in Article 20 of Regulation No 2100/94, is to be accompanied by evidence and facts raising serious doubts as to the validity of the title.
54      Thus, the party seeking a declaration of nullity in respect of a Community plant variety right must adduce evidence and facts of sufficient substance to give rise to serious doubts as to the legality of the plant variety right granted following the examination provided for in Articles 54 and 55 of Regulation No 2100/94 (see judgment of 24 September 2019, Pink Lady America v CPVO – WAAA (Cripps Pink), T‑112/18, EU:T:2019:679, paragraph 48 and the case-law cited).
55      Consequently, in an action brought against the contested decision, it is for the appellant to demonstrate, on the facts and evidence relating to the substantive and technical examination which he or she adduced before the CPVO, that the CPVO was required to carry out the review provided for under Article 20(1)(a) of Regulation No 2100/94 (judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraph 58).
56      The fact remains that 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 it.
57      That provision is an expression of the duty of sound administration, under which the Board of Appeal is required to examine carefully and impartially all the relevant factual and legal aspects of the individual case (see judgment of 11 April 2019, Kiku v CPVO – Sächsisches Landesamt für Umwelt, Landwirtschaft und Geologie (Pinova), T‑765/17, not published, EU:T:2019:244, paragraph 32 and the case-law cited).
58      Moreover, the CPVO has a wide discretion concerning annulment of a plant variety right for the purposes of Article 20 of Regulation No 2100/94, in so far as the protected variety underwent the examination set out in the previous paragraph. Therefore, only where there are serious doubts that the conditions laid down in, inter alia, Article 10 of that regulation, had been met on the date of the examination provided for under Articles 54 and 55 of that regulation can a re-examination of the protected variety by way of nullity proceedings under Article 20 of Regulation No 2100/94 be justified (see judgment of 11 April 2019, Pinova, T‑765/17, not published, EU:T:2019:244, paragraph 33 and the case-law cited).
59      The applicant’s arguments must be examined in the light of those principles.
60      First of all, it must be determined whether the applicant has adduced evidence, which is incumbent on it under the case-law referred to in paragraph 54 above, of the existence of serious doubts as to the legality of the Community protection granted to the contested variety and whether, if so, the CPVO has fulfilled its obligation to investigate the facts of its own motion.
61      In that regard, it should be noted that, after the evidence adduced by the applicant in support of the application for nullity of the contested variety gave rise to serious doubts as to the validity of that variety, the CPVO also fulfilled its obligation to investigate the facts of its own motion, as is apparent from paragraphs 40 to 53 of the contested decision.
62      The CPVO contacted the Examination Office, which explained the circumstances of the technical examination of the contested variety by stating that the Silberkarneol variety had been included in the DUS examination of the contested variety, but that the latter had been considered to be distinct from the Silberkarneol variety. As regards the Sempervivum Red variety, the expert from the Examination Office stated that it had not been included in the examination since such a variety could not be found on the internet and was not mentioned by the Sempervivum variety specialists. In addition, the CPVO also contacted A to obtain further clarifications.
63      Furthermore, although it concerns other procedures, namely the technical examination of similar varieties in the context of applications for protection Nos 2019/3083 and 2019/3271, the contested decision points out that the applicant was requested to submit to the Examination Office ‘all its varieties’. Even though account must be taken of the existence of a misunderstanding between the owner, the applicant’s director and the expert from the Examination Office, the Sempervivum Red variety was not among the 17 varieties submitted. Finally, the applicant’s owner and director were authorised to attend DUS examination of the varieties requested in procedures Nos 2019/3083 and 2019/3271.
64      It should be added that although the existence of serious doubts as to the legality of the Community plant variety right granted to the contested variety justified a re-examination of that variety in the context of the nullity proceedings, that fact does not affect the ability of the CPVO or the Board of Appeal to reject the nullity application (see, to that effect, judgment of 24 September 2019, Cripps Pink, T‑112/18, EU:T:2019:679, paragraph 50).
65      In the light of all the foregoing, the CPVO has fulfilled its procedural obligation.
66      Secondly, it is necessary to identify the evidence that the applicant had to produce in support of the grounds for nullity relied on.
67      In that regard, the applicant submits that it was not necessary to provide evidence that the contested variety and the Sempervivum Red variety were both mutants from the free variety of Silberkarneol, since the intervener acknowledged that those varieties were identical.
68      Even if the applicant’s argument were to be understood as claiming that, to the extent that the identity, one of the conditions for the application of Article 10 of Regulation No 2100/94, had been established, it was no longer necessary to demonstrate the existence of the grounds for nullity referred to in Article 7 of that regulation, the fact remains that that second ground for nullity was raised in the alternative, as the applicant submitted in its response to the Court’s written questions. In those circumstances, it cannot be held, as the CPVO contends, that the applicant implicitly withdrew the ground of nullity referred to in Article 7 of Regulation No 2100/94.
69      As a reminder, as regards the ground for nullity concerning Article 7 of Regulation No 2100/94, alleging lack of distinctness, in order for a registered variety to be declared null and void, it must not only be indistinguishable from another variety, but that other variety must also be a matter of common knowledge on the date of application for a plant variety right concerning which the registered variety is challenged. As regards the ground for nullity concerning Article 10(1) of that regulation, based on lack of novelty, the applicant for a declaration of nullity must demonstrate not only that the two varieties are identical, but also that that variety was disposed of before the priority date referred to in that provision, that is to say, more than one year before the application for a plant variety right was filed where exploitation of the variety takes place within the territory of the European Union.
70      Although the Board of Appeal, in the contested decision, did not carry out a separate assessment of the criteria of distinctness and novelty of the contested variety, it nevertheless endorsed the CPVO’s assessment which examined the evidence adduced by the applicant in support of the two grounds of nullity (see paragraphs 54 to 71 of the contested decision).
71      As regards distinctness, the CPVO considered that the evidence submitted by the applicant hardly points to a single variety, since the images submitted consisted of varying denominations (Sempervivum root, Sempervivum Others, Orange Kerkdriel, etc.) and the evidence did not contain any official or other reliable description for any other reason. The CPVO submits that, based on the documents provided it is not in a position to question whether the contested variety is identical to the alleged prior variety, since the characteristics of the latter have not being clearly and sufficiently identified. Similarly, according to the CPVO, the evidence provided did not demonstrate that the alleged earlier variety was of common knowledge. In that regard, referring to Article 5 of Document TGP/3.2 defining the varieties of common knowledge, the CPVO considered that the evidence provided by the applicant was insufficient to establish the set of characteristics of the allegedly prior variety. Moreover, the applicant, when given the opportunity, did not provide material of that variety. In the CPVO’s view, the applicant failed to identify a precise variety of common knowledge from which the contested variety was not considered distinct.
72      As regards the lack of novelty of the contested variety, the CPVO noted that the applicant’s claims in that regard, which overlap with those relating to the lack of distinctness of the contested variety, were also not supported by convincing documents. It stated, inter alia, that the identification of the material marketed was not precise. In addition, the CPVO maintained that the applicant’s argument was based on the assumption that all the varieties put on the market were the same as the contested variety. However, that was not supported by the evidence provided.
73      In the context of this part of the plea, the applicant also submits that the initiation of infringement proceedings under Article 94 of Regulation No 2100/94 implies that recognition by the holder of the protected variety that its variety is identical or virtually identical to the variety constituting an infringement, is sufficient to establish the identity between those two varieties for the purposes of applying Article 10 of that regulation in nullity proceedings under Article 20(1) of that regulation.
74      In that regard, it must be pointed out that both the Board of Appeal and the CPVO consider that identity could not be inferred from the parties’ statement or from a lack of challenge. The Board of Appeal stated, inter alia, that the identification of the allegedly identical variety was only the first stage of the examination and that the next step was to establish that that variety was genuinely in circulation before the relevant date. As regards the applicant’s position that the identity between the varieties Sempervivum Red and Belsemred1 was never an issue and that it knew that they were identical, the Board of Appeal stated that the applicant could not merely rely on the assumption that the CPVO would take this fact for granted. Moreover, in paragraph 74 of the contested decision, the Board of Appeal stated that recognition of the identity of the varieties does not shed any light on whether the applicant might have sold what would eventually become the registered Community plant variety right before its priority date.
75      In that regard, it must be held that the identity of two varieties for the purposes of Article 10 of Regulation No 2100/94, is an objective concept requiring proof to be demonstrated by appropriate evidence. Therefore, any acknowledgement by the parties of the identity of two plants cannot relieve the CPVO of its duty to assess that question.
76      It is true that, in the case which gave rise to the judgment of 13 July 2017, Oksana (T‑767/14, not published, EU:T:2017:494), the Court held that the Board of Appeal had demonstrated that the varieties in question were identical, taking into account, inter alia, the fact that the breeder had itself implicitly accepted that the variety marketed by the applicant for nullity was identical to the candidate variety. In reaching that conclusion, the Court relied on letters in which the breeder, who had relied on the protection of its copyright, had asked the applicant for a declaration of nullity to cease all production of the variety marketed by the latter. That situation can be considered comparable to that in the present case, as submitted by the applicant.
77      The fact remains that, as is apparent from paragraphs 79 to 82 of the judgment of 13 July 2017, Oksana (T‑767/14, not published, EU:T:2017:494), recognition of the identity of two varieties was not the only factor on which the Board of Appeal’s conclusion was based, which was upheld by the Court. It is apparent from paragraph 79 of that judgment that the Board of Appeal relied on the assessment of the Examination Office, which had recognised the identity of the varieties in question. Thus, the recognition of the identity of two varieties by the holder of the candidate variety merely supported the assessment of the Examination Office.
78      By contrast, in the present case, even if it were to be held that the initiation of infringement proceedings by the holder of the contested variety would amount to recognition of the identity of two varieties, such recognition would only be capable of supporting objective evidence. However, the applicant has not adduced such evidence in the present case.
79      Furthermore, it is apparent from the case-law that, in accordance with Article 10 of Regulation No 2100/94, regard is to be had only to sales or disposals to third parties, by or with the consent of the breeder, for purposes of exploiting the variety before the priority date, such sales or disposals negating novelty (see, to that effect, judgment of 24 September 2019, Cripps Pink, T‑112/18, EU:T:2019:679, paragraph 83). In the present case, none of the actions alleged by the applicant are the responsibility of the breeder of the variety, namely the intervener. In fact, the applicant submits that the intervener sought protection for a variety freely used by a large number of growers and not that the intervener had disposed of the contested variety before the priority date referred to in Article 10(1)(a) of Regulation No 2100/94.
80      It follows that the Board of Appeal was entitled to maintain that it could not rely on the applicant’s assertions and that, consequently, it was for the applicant to provide proof of the identity of the varieties in question.
81      Accordingly, this part of the plea must be rejected.
The second part, concerning the probative value of the evidence submitted by the applicant
82      The applicant considers that it has proved the earlier existence of its Sempervivum Red variety and, in particular, that, since 2013, it has grown that variety in vast and increasing quantities. Similarly, it submits that, in view of the considerable volume and diversity of evidence produced, the Board of Appeal’s finding that that evidence was insufficient and unconvincing is ‘non-conclusive’ and ‘incomprehensible’. According to the applicant, the body of evidence submitted relates to trade of tens of thousands of plants before the application for protection of the contested variety was filed. All the evidence is supported by invoices, photographs with data authentication, witness statements and independent declarations. It follows from the combination of the evidence produced and the undisputed fact that the ‘Sempervivum Red’ variety was identical to Belsemred1 that the former should be deemed to be of common knowledge.
83      In particular, the applicant submits that Annexes 1-1, 2, 3 and 4 to the nullity petition show that it has grown and traded Sempervivum plants with a solid coral red colour. However, the Board of Appeal did not accord any, or almost no, probative value to that evidence. As regards the photographs, the applicant submits that they can have a certain probative value in the sense that they can support the contention and witness statements and evidence that the Sempervivum Red variety has been propagated and sold unchanged for many years prior to the application date for protection of the contested variety. Accordingly, by means of Annexes 1-3, 2-2, 4 and 5 to its nullity petition, and Annexes 3 and 5 to its statement of grounds of appeal, it provided clear evidence that on the photographs submitted the colouring looks the same as the coral red colour of the contested variety. The function of those photographs was not to prove the full identity in all relevant phenotypic traits.
84      As regards A’s statement (Annex 1-1 to the nullity petition), the applicant submits that it follows that the origin of the variety Sempervivum Red dates back to 2007-2008, when it was found or selected as a mutation of the Silberkarneol variety. That information was confirmed by another statement of an anonymous witness, which the applicant decided to submit, since the CPVO took the view that A’s statement was not from an independent source. That is a valid reason to supplement evidence and should not in itself discredit the statement of the anonymous witness. Similarly, it is apparent from paragraph 6 of A’s statement that its company had sold 30 000 red Sempervivum plants to various customers, including the applicant.
85      Furthermore, the applicant complains that the Board of Appeal did not pay due attention to the fact that the intervener had purchased Sempervivum Red plants from the applicant in 2018. During those exchanges, the applicant stated that it had a stock of around 50 000 ‘Sempervivum Red’ plants and that the applicant had been growing these plants already for 5 to 6 years. According to the applicant, that is additional evidence of the fact that it cultivated that variety. In addition, the applicant submits that, if it had obtained plants of the contested variety in 2017 when the intervener had placed it on the market, it would never have been able to build up a stock of some 50 000 plants in 2018.
86      As regards the Board of Appeal’s complaint relating to the inconsistent naming of the variety, the applicant submits that it provided a clear and realistic explanation for those differences. Similarly, a possible parallel interest on the part of company B may be a reason for caution, but is not a sufficient reason to accord virtually no probative value to that statement.
87      In addition, the applicant highlights the difficulty in obtaining evidence. First, it states that the producers of Sempervivum were never bothered about whether the plants they were growing had the status of a variety and did not seek to protect cultivated varieties. Secondly, the coral red Sempervivum variety was grown by different producers under a variety of denominations for many years so that, in the absence of a uniform denominator, documentation of pre-existing plants was not widely available. Thirdly and lastly, the applicant submits that the Examination Office had to build up knowledge about the species and a reference collection from scratch.
88      The CPVO and the intervener dispute the applicant’s claims.
89      In the present case, it must be noted that the applicant submitted, in support of its two grounds of invalidity, a body of evidence consisting of two statements, photographs, invoices and lists of cuttings which the CPVO and the Board of Appeal nevertheless regarded as insufficient (see paragraphs 55 to 70 of the contested decision).
90      In particular, the Board of Appeal, in paragraphs 55 and 56 of the contested decision, assessed A’s statements (Annex 1-1 to the nullity petition), stating that such statements usually played a supportive or peripheral role and were not of a pivotal probative nature. Moreover, according to the Board of Appeal, it was possible that the witness may have had a business interest in the cancellation of the contested variety. It noted, inter alia, that it was apparent from that statement that a red mutant variety had been sold in trays and its denomination was inconsistent. However, the Board of Appeal found that that statement and its annexes did not constitute reliable evidence, and did not contribute to a precise identification of the red mutant variety, which allegedly was identical to the contested variety. In particular, it noted ‘the lack of consistency’ and ‘the absence of reliable documentary support’ even though the witness claimed to have marketed 30 000 plants to established breeders in a relatively sophisticated market.
91      In that regard, it should be noted that, in his sworn statement, A states, first, that the horticultural undertaking B, in which he is a partner, has grown Sempervivum plants since 1998 and that, at the time of making the statement, namely in 2019, 150 000 units of that species were grown by that undertaking. Second, he claims that, in 2007-2008, red mutations of the Silberkarneol Red variety had been found. Those variations were remarkable, in so far as they kept their red colour when the season came to an end whereas, usually, plants of the Silberkarneol variety, which mutated easily, would become green again at the end of the season. Third, the witness maintains that, as of 2009 onwards, the undertaking had accumulated sufficient stocks of the red mutant to commercialise approximately 30 000 units annually. They were sold to various companies, including the applicant. Some were sold by auction, others directly to distributors. Fourth, the witness confirms that the applicant started purchasing such plants from it in 2013. He states that the undertaking sold Sempervivum plants in mixed trays labelled ‘Sempervivum Overig’ (Sempervivum Others). A photograph of these mixed trays was annexed to his statement (Annex 1-3 to the nullity petition). Fifth, he states that he did not give a special name to the red mutation and simply called it Sempervivum red. Similarly, he finds it ‘incredible’ that a company wishes to obtain, by means of a registration, a monopoly over a variety which has been marketed and known for years.
92      As regards the probative value of the statement submitted by the applicant, it should be borne in mind that, in order to assess the probative 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 a statement has been made in accordance with Article 78(1)(g) of Regulation No 2100/94, it cannot be attributed probative value where it is made by persons connected to the applicant, unless it is supported by other evidence (see judgment of 11 April 2019,
Pinova, T‑765/17, not published, EU:T:2019:244, paragraph 51 and the case-law cited).
93      It is therefore necessary to assess the extent to which A’s assertions, who is connected to the applicant, were supported by other evidence.
94      In that regard, it must be pointed out that the invoices submitted by the applicant support certain assertions contained in the sworn statement, in so far as it is apparent, first, from the invoice issued by C dated 1 May 2013 (Annex 2-3 to the nullity petition) that 5 400 units of the product called ‘SEMP OV’ bearing the number ‘6792’ provided by company B were auctioned on 1 May 2013 and, second, from the invoice issued by C, together with its details (Annexes 5-2 and 5-3 to the nullity petition), that 83 592 units of the product ‘Sempervivum Overig’ bearing the number ‘6792’ were sold by the same company to the applicant on 24 April 2014.
95      As regards the photographs submitted by the applicant showing either a tray of mixed Sempervivum plants (Annexes 1-3 and 2-2 to the nullity petition) or cultivations of these plants in red (Annexes 4 and 5-1 to the nullity petition), it must be noted, as did the Board of Appeal, that these elements have little probative value. They do not contain any date or description and, as the CPVO contends, do not come from an independent source. It should be added that the coincidence in the colour red cannot be regarded as sufficient to establish that the varieties are identical, since they must coincide in all phenotypic traits. In that regard, the Board of Appeal correctly stated, in paragraph 35 of the contested decision, that the colour was only one of the seven phenotypic characteristics listed in the examination protocols for the contested variety.
96      The only photograph supporting A’s statement is that appearing in the email exchange between C and the applicant dated 28 August 2019 (Annex 2-1 to the nullity petition). It is a screenshot of the website of the auction house C, from which it is apparent, inter alia, that company B has, since 29 April 2013, offered the trays of mixed Sempervivum plants, some of which are red, bearing the number ‘6792’ and the designation ‘Sempervivum OV’.
97      As regards the lists of cuttings (Annex 1-2 to the nullity petition and Annex 4 to the statement of grounds of appeal), it must be held, as the CPVO did, that they are internal items which, as the Board of Appeal found, have no context and are undated, with the result that they are unable to provide the slightest clarification as to whether a variety whose relevant phenotypic traits were identical to the contested variety was marketed before the priority date.
98      Lastly, as regards the statement of an anonymous witness, produced in Annex 3 to the statement of grounds of appeal, it must be stated that, in accordance with the case-law cited in paragraph 92 above, its probative value is very low, as the Board of Appeal found. The anonymous nature of that statement makes it impossible to determine the origin of that document, the circumstances in which it was drawn up and whether its content appears sound and reliable.
99      In view of the foregoing considerations, A’s statement and the invoices are indeed sufficient to prove that pallets of various Sempervivum plants were marketed before the priority date of the contested variety, as the CPVO ultimately acknowledges. In that regard, it should be borne in mind that the invoices submitted by the applicant support the sworn statement in so far as they show the sale, in 2013 and 2014, of the product known as ‘SEMP OV’ or ‘Sempervivum Overig’ bearing the number ‘6792’ (see paragraph 94 above). As regards the question as to what the product bearing the number ‘6792’ corresponded, Annex 2-1 contains a screenshot of the auction house C’s website, including a tray of Sempervivum plants, some of which are red in colour (see paragraph 96 above).
100    However, that evidence does not make it possible to draw any conclusions as to whether, as the CPVO found, in essence, the red Sempervivum plants, mutants of the Silberkarneol variety and included in the Sempervivum Overig tray as marketed by company B, were identical to the contested variety, or even whether those plants were identical to the plants which the intervener purchased from the applicant in 2018, with a view to commencing infringement proceedings in the Netherlands.
101    Thus, the Board of Appeal’s finding that the evidence submitted by the applicant is not capable of demonstrating that a variety with all the relevant phenotypic characteristics identical to the contested variety was marketed before the priority date was not based on a manifest error of assessment. Furthermore, it follows in particular from paragraph 71 of the contested decision that, contrary to what the applicant claims, the Board of Appeal did carry out an overall assessment of the evidence in the present case.
102    Furthermore, in the light of the assessments set out in paragraphs 91 to 98 above, it must be held that the evidence submitted also does not show that a potentially non-distinct variety of the contested variety was a matter of common knowledge within the meaning of Article 7 of Regulation No 2100/94, as the CPVO essentially found (see paragraph 71 above).
103    The other arguments submitted by the applicant cannot invalidate that finding.
104    As regards the fact that the evidence submitted by the applicant does not contain a single denomination, although it was taken into account by the Board of Appeal in maintaining that the peripheral evidence revealed an ‘incomplete puzzle’, that fact cannot be regarded as decisive in terms of the Board of Appeal’s finding that the applicant has not proved that a variety identical to or not distinct from the contested variety was marketed before the priority date. It must nevertheless be added that the existence of different denominations does not convincingly call into question the novelty and distinctness of the contested variety.
105    As regards the CPVO’s contacts with A to confirm certain facts in his statement, in addition to the finding that the Board of Appeal did not infringe the applicant’s rights of defence in that regard (see paragraphs 37 and 38 above), it must be pointed out that the Board of Appeal did not base its decision on information resulting from those exchanges. It merely described A’s response as ‘underwhelming’ (see paragraph 46 of the contested decision). In that regard, it must be pointed out that A’s replies to the CPVO’s questions are very succinct and do not provide any more information than his statement.
106    The applicant’s argument that it would not have been able to build up a stock of some 50 000 plants in 2018 if it had obtained plants of the contested variety in 2017, when the intervener had placed it on the market, is unsubstantiated and purely speculative. In any event, that fact is not such as to demonstrate that the varieties in question are identical.
107    Lastly, it must be held, as the CPVO did, that any difficulty in collecting the required evidence cannot justify changing the burden of proof and the rules of evidence before the CPVO.
108    In the light of all of the foregoing considerations, the second part of the plea must be rejected.
The third part, concerning the CPVO’s obligation to organise a new DUS examination
109    The applicant claims that it proposed that the CPVO organise a second DUS examination and reiterated that suggestion before the Board of Appeal in response to the CPVO’s position that the photographs alone did not enable it to determine whether the contested variety was identical or, on the contrary, distinct from the variety Sempervivum Red, nor whether the existence of that variety was a matter of common knowledge on the date of the application for the contested variety. In that regard, the applicant states that, in its view, a second examination was not necessary because the issue of identity could be decided on the basis of the intervener’s contentions, which had acknowledged that identity, in particular before the Board of Appeal.
110    The applicant submits, in essence, that the proposal for a new DUS examination is made only in the alternative if the identity of the varieties recognised by the intervener and the evidence submitted were insufficient to prove that the Sempervivum Red variety already existed well before the date on which the application for protection for the contested variety was filed. In such a case, the CPVO would have to organise a new, better and more complete DUS examination, including, inter alia, several Sempervivum Red varieties. Such an examination would not have been carried out as if it were a second trial, but rather ‘a side-by-side comparison of various plants’ and would have the advantage both of repeating the DUS examination with a better collection of reference varieties and of fact-finding with regard to the pre-existence of the variety Sempervivum Red.
111    According to the applicant, that new growing trial is not the only way to proceed. Another option would be to hear witnesses, namely the applicant’s employees, A or other individuals who could confirm that the variety Sempervivum Red had been propagated unchanged for many years before the application for registration of the contested variety. Experts could also be consulted.
112    In any event, the applicant submits that a growing trial is not disproportionate as found by the Board of Appeal. Sempervivum Red plants, currently grown by the applicant and other producers and available on the market, can be considered to be true to type descendants from the Sempervivum Red variety grown at the time of the application for registration of the contested variety. Moreover, the fact that repeated propagation cycles normally lead to descendants which show stable and unchanged characters, which is not disputed by the intervener, can be confirmed by the oral testimony of the growers.
113    The CPVO and the intervener dispute the applicant’s arguments.
114    In the present case, the Board of Appeal stated, in paragraph 51 of the contested decision, that it was sufficiently convinced that the CPVO had made the right decision by refusing a new DUS examination. It took the view, inter alia, that the CPVO’s diligence in the present case is on a par with the bar set by the case-law, namely that the obligation to investigate of its own motion means that the CPVO must simply gather all the information that it considers necessary under its scope of discretion.
115    In that regard, the Board of Appeal added, in paragraph 72 of the contested decision, that the fact that the nullity petitioner has exhausted (or, as the case may be, has possibly exhausted) every means of evidence at its disposal does not necessarily translate into an obligation for the CPVO to conduct a new DUS examination.
116    Furthermore, the Board of Appeal stated, in paragraph 30 of the contested decision, that, if a new technical test were to be carried out, it would be very difficult or even impossible to establish that said comparator is a descendant from the exact same plants that were traded before the priority date. Admittedly, it accepted that, from a botanical point of view, the variety’s genotype (bearer of mutations) would have remained the same over the years due to its vegetative propagation. However, it added that, unless the applicant had been in a position to provide, in 2021, plants having an indisputable origin in plants traded by B before 27 November 2014, that is to say, in having a perfect ‘chain of custody’, that new DUS examination would not have been sufficient, from both a legal and evidential perspective to annul the CPVO’s decision. According to the Board of Appeal, it would not have any assurance, ‘let alone a convincing guarantee’, that the chosen comparator plants are descendants from the plants grown and disposed of as early as 2014.
117    Moreover, in paragraph 50 of the contested decision, the Board of Appeal stated that, even if the owner and director of the applicant had provided the red mutant to the Examination Office, the key question would still arise as to whether it really originated from plants pre-dating the relevant priority date, within the meaning of Article 10(1)(a) of Regulation No 2100/94.
118    In that regard, it should be noted that the question whether the criteria of distinctness, uniformity and stability (DUS criteria) are satisfied in a particular case is examined in the context of the technical examination carried out in accordance with Articles 55 and 56 of Regulation No 2100/94.
119    In particular, in accordance with Article 55(1) of that regulation ‘where the [CPVO] has not discovered any impediment to the grant of a Community plant variety right on the basis of the examination pursuant to Articles 53 and 54, it shall arrange for the technical examination relating to compliance with the conditions laid down in Articles 7, 8 and 9 [DUS criteria] to be carried out by the competent office or offices in at least one of the Member States entrusted with responsibility for the technical examination of varieties of the species concerned by the Administrative Council [of the CPVO], hereafter referred to as the “Examination Office or Offices”.’
120    Similarly, it is apparent from a combined reading of Article 54(1) and Article 55(1) of Regulation No 2100/94 that the examination by the CPVO of the novelty of a candidate variety takes place prior to the technical examination of the DUS criteria by an Examination Office (see also paragraph 45 above).
121    In the present case, during the registration procedure, the Bundessortenamt considered that the contested variety complied with the DUS criteria and could be registered. In the context of the present nullity proceedings, the applicant complained, inter alia, that the Examination Office had not included the Sempervivum Red variety in the technical examination and, consequently, maintained throughout the administrative procedure that a new examination assessing the DUS criteria had to be organised.
122    In that regard, as is apparent, in essence, from Article 55(1) of Regulation No 2100/94, a new technical examination is, in principle, relevant only for the examination of distinctness. In so far as it has been sufficiently established by the Board of Appeal that the applicant has not shown that the potentially non-distinct varieties of the contested variety were a matter of common knowledge at the time of the application for registration of that variety (see paragraph 102 above), that ground for nullity cannot be applied, even if a new technical examination could show that the two varieties are not distinct within the meaning of Article 7 of Regulation No 2100/94. Consequently, the applicant’s argument is, in any event, ineffective.
123    As regards the need to organise a new technical examination including the Sempervivum Red variety, it must be noted that the Board of Appeal gave, in paragraph 30 of the contested decision (see paragraph 116 above), convincing reasons for its lack of usefulness, namely that a new examination could not reflect the situation before the date of the application for registration of the contested variety. The applicant has not put forward any arguments capable of casting doubt on the Board of Appeal’s position.
124    Moreover, it must be borne in mind that, in the light of the technical nature of that question, the Court’s review of that aspect is limited to the existence of a manifest error of assessment, in accordance with the principles referred to in paragraphs 50 to 52 above.
125    As regards the fact that, in paragraph 50 of the contested decision, the Board of Appeal referred to the criteria in Article 10 of Regulation No 2100/94 relating to novelty and not those of Article 7(1) of that regulation relating to distinctness, that cannot be regarded as decisive in so far as that Board, like the CPVO, assessed the evidence submitted by the applicant at the same time in relation to those two provisions.
126    Therefore, the arguments put forward by the applicant concerning the organisation of a new technical examination cannot succeed. Consequently, the third part of the plea must be rejected.
The fourth part, relating to issues of no or limited relevance in terms of a debate about the giving of evidence
127    The applicant states that the Board of Appeal devoted a lot of attention to the question whether the non-inclusion of Sempervivum should be regarded as an error on the part of the Examination Office. The applicant considers that that issue is not very ‘interesting’, since the question whether the Examination Office duly performed the task entrusted to it is not at issue in the present case. Even if the Examination Office may have followed correct and customary processes, it simply cannot be denied that the trial that was carried out was ‘imperfect’ because Sempervivum Red was not included.
128    The CPVO disputes the applicant’s arguments.
129    The argument put forward in the context of the present part of the plea must be rejected as ineffective, since, as the CPVO maintains, it does not call into question the meaning of the contested decision.
130    In any event, it should be noted that, in considering whether the Examination Office wrongly omitted to include the Sempervivum Red variety in the technical examination of the contested variety, the CPVO fulfilled its obligation to investigate the facts of its own motion in accordance with Article 76 of Regulation No 2100/94 (see paragraph 65 above).
131    In the light of all the foregoing, the fourth part of the second plea in law must be rejected and, therefore, that plea in its entirety. As a consequence, the action must be dismissed.
Costs
132    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
133    Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by CPVO and the intervener.
134    As regards the intervener’s claim that the applicant should also be ordered to pay the costs incurred by the intervener in the proceedings before the CPVO, first, it should be borne in mind that the costs incurred for the purposes of the proceedings before the CPVO cannot be regarded as recoverable costs (see, by analogy, judgment of 25 April 2013, Bell & Ross v OHIM – KIN (Wristwatch case), T‑80/10, not published, EU:T:2013:214, paragraph 164 and the case-law cited). Secondly, it must be pointed out that the costs incurred before the Board of Appeal continue to be determined by the contested decision, since the present judgment dismisses the action brought against the contested decision (see, to that effect and by analogy, judgment of 4 October 2017, Intesa Sanpaolo v EUIPO – Intesia Group Holding (INTESA), T‑143/16, not published, EU:T:2017:687, paragraph 74).
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Jaw de Croon Holding BV to pay the costs.
Costeira
Kancheva
Zilgalvis
Delivered in open court in Luxembourg on 29 May 2024.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.