JUDGMENT OF THE GENERAL COURT (Third Chamber)
24 September 2025 (*)
( Plant varieties – Application for a Community plant variety right for apple varieties Cripps Pink and Cripps Red – Nullity proceedings – Article 53a of Regulation (EC) No 874/2009 – Serious doubts – Article 10(1) of Regulation (EC) No 2100/94 – Novelty )
In Case T‑159/24,
Western Australian Agriculture Authority (WAAA), established in South Perth (Australia), represented by T. Bouvet and C. Devinant, lawyers,
applicant,
v
Community Plant Variety Office (CPVO), represented by M. García-Moncó Fuente, F. Mattina, A. Christ and A. Pontecorvi, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of the CPVO, intervener before the General Court, being
Teak Enterprises Pty Ltd, established in Applecross (Australia), represented by R. Manno, lawyer,
THE GENERAL COURT (Third Chamber),
Composed, at the time of the deliberations, of P. Škvařilová-Pelzl, President, G. Steinfatt (Rapporteur) and D. Kukovec, Judges,
Registrar: R. Ūkelytė, Administrator,
having regard to the written part of the procedure,
further to the hearing on 19 March 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Western Australian Agriculture Authority (WAAA), seeks the annulment of the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 12 January 2024 (Joined Cases A 019/2021 and A 020/2021) (‘the contested decision’).
Background to the dispute
2        On 29 August 1995, the applicant filed two applications for Community plant variety rights at 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).
3        The plant varieties in respect of which the Community right was sought are the ‘Cripps Pink’ and ‘Cripps Red’ apple varieties of the species malus domestica Borkh, which John Cripps, a senior researcher at the Department of Agriculture and Food Western Australia, obtained by crossing the ‘Golden Delicious’ and ‘Lady Williams’ varieties in 1973. The Cripps Pink variety was marketed under the name ‘Pink Lady’ and the Cripps Red variety under the name ‘Sundowner’.
4        On 15 January 1997, the CPVO granted a Community plant variety right for the Cripps Pink variety, registered under reference EU 1640, and, on 7 September 1998, for the Cripps Red variety, registered under reference EU 3425.
5        On 26 June 2014, Pink Lady America LLC, the holder of an exclusive master licence for the ‘Pink Lady’ trade mark in the United States and Mexico, lodged an application for nullity in relation to the Cripps Pink Community plant variety right on the ground that it lacked novelty (‘the previous proceedings’). On 19 September 2016, the CPVO dismissed the nullity application. Both the Board of Appeal of the CPVO and the General Court (judgment of 24 September 2019, Pink Lady America v CPVO – WAAA (Cripps Pink), T‑112/18, EU:T:2019:679), dismissed the actions brought by Pink Lady America. The appeal by Pink Lady America dated 3 December 2019 was not allowed to proceed (order of 3 March 2020, Pink Lady America v CPVO, C‑886/19 P, not published, EU:C:2020:146).
6        On 18 December 2020, the intervener, Teak Enterprises Pty Ltd, lodged applications for nullity in relation to Community plant variety rights under Article 20 of Regulation No 2100/94 both in relation to the Cripps Pink variety (Case No A 019/2021) and the Cripps Red variety (Case No A020/2021). The intervener contested the novelty of the varieties at issue on the ground that, prior to 29 August 1989, which, in the present case, is the novelty bar date, those varieties were exploited commercially in Western Australia, with the consent of the relevant breeder.
7        By decisions of 17 May 2021 (‘the initial decisions’), the CPVO dismissed the applications referred to in paragraph 6 above on the ground that the conditions for opening nullity proceedings under Article 53a of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the CPVO (OJ 2009 L 251, p. 3) were not met, since the intervener had not raised serious doubts regarding the validity of the rights granted. The CPVO concluded that the new evidence produced by the intervener in its nullity application, when considered as a whole and together with the evidence which had been assessed in the previous proceedings, did not raise serious doubts concerning the validity of the Cripps Pink and Cripps Red Community plant variety rights.
8        On 16 July 2021, the intervener filed a notice of appeal with the Board of Appeal of the CPVO.
9        By the contested decision, the Board of Appeal annulled the initial decisions and remitted the cases A 019/2021 and A 020/2021 to the CPVO, ordering it to open nullity proceedings to assess whether the Community plant variety rights in relation to the two varieties at issue ought to be declared null and void. The Board of Appeal concluded that the CPVO had erred in finding that implicit consent was not sufficient to destroy novelty as referred to in Article 10 of Regulation No 2100/94. In its view, the CPVO also erred in failing to give the necessary weight and importance to the evidence produced by the intervener. The new items of evidence Exhibits 3, 15, 17 and 19, in particular, were sufficient, in themselves and without having regard to the other evidence, to raise serious doubts as to novelty and, accordingly, the validity of the plant variety rights at issue, with the result that nullity proceedings were to be initiated in order to enable the CPVO to carry out a full and thorough investigation, and also to obtain, on its own initiative, evidence concerning compliance with the novelty criterion.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        alter the contested decision and hold that the CPVO was correct in finding that the conditions for opening nullity proceedings were not met and in deciding not to declare the ‘Cripps Pink’ and ‘Cripps Red’ varieties null and void;
–        order the intervener to pay the costs.
11      The CPVO contends that the Court should:
–        annul the contested decision;
–        order each party to bear its own costs or order the CPVO to bear only its own costs.
12      The intervener claims that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
13      As a preliminary point, as regards the CPVO’s first head of claim, seeking the annulment of the contested decision, it is apparent from settled case-law applicable to the European Union Intellectual Property Office (EUIPO) in proceedings before the Court in the field of EU trade marks, that EUIPO is not obliged to defend systematically the decisions of the Boards of Appeal which are contested before the Court, even though is automatically designated as defendant under Article 172 of the Court’s Rules of Procedure (see judgments of 12 July 2006, Rossi v OHIM – MARCOROSSI (MARCOROSSI), T‑97/05, EU:T:2006:203, paragraph 16, and of 22 September 2021, Sociedade da Água de Monchique v EUIPO – Ventura Vendrell (chic ÁGUA ALCALINA 9,5 PH), T‑195/20, EU:T:2021:601, paragraph 15 and the case-law cited). The Court has already confirmed that it is necessary to apply that case-law, by analogy, to the CPVO (judgment of 10 September 2015, Schniga v CPVO – Brookfield New Zealand and Elaris (Gala Schnitzer), T‑91/14, EU:T:2015:624 paragraph 70). Accordingly, there is nothing to preclude the CPVO from supporting the applicant’s arguments in the present case and from contending that the action ought to be upheld.
14      In support of its action, which is backed by the CPVO, the applicant raises two pleas in law, alleging (i) infringement of Article 53a of Regulation No 874/2009 and of the provisions governing the authority of decisions of the General Court, Article 75 of Regulation No 2100/94, the burden of proof and the principles of legal certainty and legitimate expectations and (ii) an infringement of Article 10 of Regulation No 2100/94 read in conjunction with Article 53a of Regulation No 874/2009 and the provisions governing the burden of proof. The intervener contends that the action ought to be dismissed and, in addition, that the applicant’s Annex A-1.10 is inadmissible on the ground that it has been adduced for the first time before the Court.
The first plea: infringement of Article 53a of Regulation No 874/2009 and of the provisions governing the authority of decisions of the Court, Article 75 of Regulation No 2100/94, the burden of proof and the principles of legal certainty and of legitimate expectations
15      The applicant’s first plea is divided into three parts.
The first part of the first plea: infringement of Article 53a of Regulation No 874/2009 in that the Board of Appeal found that the CPVO ought to have conducted thorough investigations, that it undervalued evidence and that it examined the merits
16      The applicant argues that the Board of Appeal’s criticism of the methodology used by the CPVO in order to decide whether there were ‘serious doubts as regards the validity of the title’ as provided for in Article 53a of Regulation No 874/2009 is unjustified. In its view, according to the case-law, it is for the applicant for a declaration of nullity to put forward evidence or facts of sufficient substance to raise serious doubts regarding the legality of the plant variety rights granted. The Board of Appeal suggested, however, in paragraphs 35 to 37 of the contested decision, that the CPVO ought to have carried out thorough investigations and that it issued a decision in which, in paragraphs 71 to 73, it appears to examine the merits of the case. Consequently, it expected more from the CPVO than the assessment required by Article 53a of Regulation No 874/2009.
17      Furthermore, the applicant and the CPVO maintain that the CPVO’s initial decisions were justified by the obligation to comply with the case-law of the Court, which has already examined the same evidence or evidence of a similar nature in the earlier proceedings, in which another party had unsuccessfully argued that the varieties at issue ought to be declared null and void (see paragraph 5 above).
18      In addition, the CPVO submits that any discussion of the merits of the invalidity of the title would go beyond the scope of the present appeal and ought not to be admitted. The CPVO explains that the legislature introduced a ‘two-tier test’, that is to say, a procedure in two phases, by means of Article 53a of Regulation No 874/2009. In the first phase, the CPVO is required to analyse the facts and evidence provided by the applicant for a declaration of nullity in order to ascertain whether or not they raise serious doubts as regards the validity of the contested title. If that is the case, in a second phase, the CPVO opens nullity proceedings, which become adversarial in nature, as the titleholder is invited to participate by providing its own facts and evidence, and the CPVO can, at that stage, if it considers it necessary, conduct investigations into the facts of its own motion, pursuant to Article 76 of Regulation No 2100/94 and Article 60 of Regulation No 874/2009.
19      The CPVO argues that, even where there are serious doubts, the decision to open nullity proceedings remains at its discretion.
20      In addition, according to the CPVO, as the initial decisions were limited to the decision not to open nullity proceedings, the scope of the appeal ought to have been limited to whether or not the CPVO correctly assessed the evidence put forward by the applicant to raise serious doubts which would justify the opening of nullity proceedings. Any statement on the alleged invalidity of the titles concerned is outside the scope of the appeal.
21      Similarly, the Board of Appeal’s observations on the legal interpretation of the concepts of ‘novelty’ and ‘consent’ from the breeder fall within the merits of the invalidity request, which are not the subject of the present proceedings.
22      Lastly, the CPVO criticises the Board of Appeal for having disregarded the principles of a rigorous assessment of all the evidence provided with the nullity application. In that regard, the witnesses’ power of recollection altering after very long intervals of time and the lack of supporting evidence could affect the probative value of Exhibits 15, 17 and 19. As for Exhibits 3, 15 and 17, it is apparent from the case-law of the Court that, in order to support the documents produced, a specific document attesting to a disposal destroying novelty would be required, such as invoices, delivery notes, statements of turnover, buyers’ testimonies, trade brochures, advertising, offers for purchase or similar. In that regard, the Board of Appeal erred, in particular, in observing that documentary evidence of sales would be helpful but not essential in accepting the veracity of the declaration by Mr Francis Atherton, submitted as Exhibit 19. In addition, the CPVO criticises the Board of Appeal for having made no actual reference to other new evidence, namely Exhibits 4 to 7. Lastly, the CPVO alleges that there is a contradiction between Exhibit 17, namely the statutory declaration by Mr Cripps, and Exhibit 2, which was provided by the intervener with the nullity application, and contains a declaration by Mr John Durham.
23      The intervener disputes the arguments of the applicant and of the CPVO.
24      Under Article 10 of Regulation No 2100/94, a variety is to be deemed to be new if, at the date of application determined pursuant to Article 51 of that regulation, 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, in particular 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 Community.
25      Article 20 of Regulation No 2100/94 provides 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 10 of that regulation were not complied with at the time of the Community plant variety right.
26      The first sentence of Article 53a(1) of Regulation No 874/2009 provides that proceedings on nullity as referred to in Article 20 of Regulation No 2100/94 may be opened by the CPVO when there are serious doubts as regards the validity of the title.
27      In the present case, as the intervener correctly points out, the Board of Appeal, after having set out the two-step structure of the proceedings on nullity and the intensity of the review during those two stages, stated, in paragraph 41 of the contested decision, that it would assess whether the evidence adduced by the intervener was capable and sufficient to raise serious doubts regarding novelty. It follows that the Board of Appeal perfectly well distinguished between the two phases and the two levels of analysis laid down in Article 53a of Regulation No 874/2009 and concluded that only the first phase was relevant for the purposes of the present dispute.
28      Nor did the Board of Appeal exceed the limits of its review under that first phase of the proceedings. At that stage, as the CPVO correctly maintains, the Board of Appeal must assess whether the facts and evidence provided by the applicant for a declaration of nullity are such as to raise serious doubts as regards the validity of the title. That is apparent from Article 53a(1) of Regulation No 874/2009, which provides that proceedings on nullity may be opened by the CPVO where there are serious doubts as regards the validity of the title, read in conjunction with Article 53a(2) of that regulation, which provides that the application to the CPVO to open proceedings on nullity is to be accompanied by evidence and facts raising serious doubts as to the validity of the title.
29      In the first place, in paragraph 55 et seq., and more specifically in paragraph 60 et seq. of the contested decision, the Board of Appeal precisely carried out the examination referred to in paragraph 28 above. In paragraph 71 of the contested decision, the Board of Appeal concluded that the new evidence submitted by the intervener was, on its own and taken in isolation from other evidence, sufficient to raise serious doubts regarding the validity of the titles, requiring nullity proceedings to be opened. In paragraphs 72 and 73 of the contested decision, the Board of Appeal raised a number of procedural errors vitiating the initial CPVO decisions, in particular the fact that the evidence had not been analysed with the impartiality and care required. Those findings do not go beyond the subject matter of the dispute before the Board of Appeal. The applicant therefore errs in inferring from paragraphs 71 to 73 of the contested decision that the Board of Appeal took a decision on the merits of the case, which was not for it to take.
30      In the second place, the CPVO also errs in maintaining that the Board of Appeal undertook an analysis of the merits of the case when it stated that an implicit consent on the part of the breeder to the disposal before the deadline could, provided that it has been established, destroy novelty.
31      As stated in paragraph 28 above, the CPVO is required to assess whether the facts and evidence provided by the applicant for a declaration of nullity are such as to raise serious doubts as regards the validity of the title. The validity of the title depends, in particular, on whether the novelty requirement laid down in Article 10 of Regulation No 2100/94 was met at the time when the Community plant variety right was granted. Accordingly, in order to assess whether the evidence and facts submitted by the intervener were such as to raise serious doubts as regards the novelty of the title, it is essential to define the circumstances which are capable of destroying novelty. It follows that the Board of Appeal was correct in first answering the question whether implicit consent could constitute consent within the meaning of Article 10 of Regulation No 2100/94.
32      In the third place, the criticism that the Board of Appeal found that the CPVO ought to have conducted thorough investigations is based on a misreading of the contested decision. The Board of Appeal simply recalled, in paragraphs 35 to 37 of the contested decision, to which the applicant refers, the origins of Article 53a of Regulation No 874/2009 and the case-law prior to the adoption of that provision, under which the CPVO has a broad discretion. In paragraph 38 of the contested decision, the Board of Appeal recalled the two-phase structure of proceedings on nullity. It is true that the Board of Appeal stated that, in the context of the second phase, the CPVO was required to carry out a full and exhaustive examination, of its own initiative, of all the relevant facts, evidence, concerns and points of law, requiring a thorough and complete examination of all the relevant questions. However, it stated, in paragraphs 39 to 41 of the contested decision, that the dispute before it related to the first phase, which was limited to the question whether the evidence adduced by the intervener was capable and sufficient to raise serious doubts as regards novelty.
33      In the fourth place, the argument that the CPVO is not automatically required to open nullity proceedings, but has a broad discretion in that regard, also cannot succeed. In any event, the Board of Appeal may, under Article 72 of Regulation No 2100/94, exercise any power which lies within the competence of the CPVO, with the result that it is also permitted to exercise any power which the CPVO enjoys, in particular the power to initiate proceedings on nullity.
34      In the fifth place, it is necessary to reject the argument of the applicant and the CPVO that the CPVO was bound, in its initial decisions, to comply with the judgment of 24 September 2019, Cripps Pink (T‑112/18, EU:T:2019:679).
35      In the case which gave rise to the judgment of 24 September 2019, Cripps Pink (T‑112/18, EU:T:2019:679), the Court held, inter alia, that the Board of Appeal made no error when it decided that various items of evidence established that the disposals of the Cripps Pink variety on which the cancellation applicant’s arguments were based formed part of the trials initiated in 1984 and 1985 for the purposes of a commercial evaluation, with the result that they could not be regarded, in the light of Article 10(1) of Regulation No 2100/94, as constituting exploitation of the variety within the meaning of that provision. The Court also held that there were invoices from the nursery Olea Nurseries demonstrating that it had sold the Cripps Pink variety in 1985, but that there was no evidence that the breeder had consented to those sales, the evidence in fact establishing that the variety at issue had been released for testing purposes only (judgment of 24 September 2019, Cripps Pink, T‑112/18, EU:T:2019:679, paragraphs 7 to 9).
36      First, in the introductory sentence of paragraph 51 of the contested decision, the Board of Appeal drew attention to the fact that a large part of the evidence submitted by the intervener in its applications of 21 December 2020 was the same as evidence which had already been assessed in the earlier proceedings and that it was for the CPVO to take into account, before drawing its conclusions on the intervener’s applications, the conclusions drawn by the Court in the earlier proceedings and the facts and evidence on the basis of which those conclusions had been drawn and the extent to which the facts and evidence in the intervener’s applications of 21 December 2020 differed from those in the earlier proceedings.
37      The Board of Appeal not only listed, in paragraph 51(i) of the contested decision, the nine main items of evidence which the General Court had assessed in the earlier proceedings but also set out, in paragraphs 51(ii) and (iii) of that decision, the General Court’s findings when it made that assessment. It also substantiated its assessment of the new evidence by highlighting the commonalities and differences compared with the evidence submitted in the previous proceedings, as a number of examples demonstrate.
38      In that regard, in paragraph 67 of the contested decision, the Board of Appeal found that there was no mention in the relevant procedure of ‘any letter like the ones that played an important role in the previous … proceedings’.
39      Similarly, as the intervener correctly points out, the Board of Appeal noted, in paragraph 49 of the contested decision, that the earlier proceedings concerned only the Cripps Pink variety, and not the Cripps Red variety.
40      Lastly, as regards Mr Cripps’ declarations of 2015 and 2018, only the first of which had been submitted during the earlier proceedings, the Board of Appeal first of all noted, in paragraph 61 of the contested decision, the similarities between the two declarations, and subsequently identified, in paragraph 62 of the contested decision, the additional information contained in the second declaration, which ‘[was] focus[ed] … on other sales and disposals of the Cripps Pink and Cripps Red varieties that were apparently made with a different purpose’. In that regard, the Board of Appeal stated that ‘the trees were immediately and proactively distributed to local nurseries and growers from the period beginning 1985 onwards with the intention being to benefit the Australia[n] apple industry with new varieties’. As regards the evidential value of Mr Cripps’ second declaration, the Board of Appeal noted, in paragraph 60 of the contested decision, that ‘the 2018 Cripps declaration differ[ed] from the 2015 Cripps declaration, in that it [was] more detailed and [shed] important light on the sales and disposals before the novelty bar date’.
41      It follows that the Board of Appeal in no way disregarded the decisions made in the earlier proceedings.
42      Given that the evidence adduced by the intervener in the present proceedings differs from the evidence on which the earlier decision is based, it is also irrelevant for the contested decision and for the initial CPVO decisions that, at the time of the earlier proceedings, the serious doubts as regards the validity of the variety could have been dispelled during the second phase of the proceedings. The argument put forward by the applicant to that effect must therefore be rejected.
43      Indeed, the differences between the earlier proceedings and the present proceedings are not limited to the four new items of evidence. In the earlier proceedings, declarations came from, in particular, persons associated with the nullity applicant. Furthermore, the earlier proceedings did not concern the same, potentially novelty destroying, disposals as the disposals at issue in the present case. At the time of the earlier proceedings, the only actual disposals which had been proven dated from 1984, 1985 and 1987, with the 1984 and 1985 disposals having being made subject to the express qualification that they be used for testing purposes and the 1987 disposals having been being made in breach of such a qualification (judgment of 24 September 2019, Cripps Pink, T‑112/18, EU:T:2019:679, paragraphs 61, 63 and 77). By contrast, the evidence submitted in the present case deals, in particular, with sales which occurred from 1987 to 1989 and which were not subject to any qualification. At the end of paragraph 64 of the contested decision, the Board of Appeal notes that, while sales were subject to restrictions in 1985, Mr Atherton’s declaration, submitted in the present case as new evidence (Exhibit 19), appears to show that those restrictions were no longer in existence in 1988. According to paragraph 67 of the contested decision, the letter containing the restrictions was an important item of evidence in the earlier proceedings.
44      Second, none of the evidence on which the Board of Appeal relied in paragraphs 70 and 71 of the contested decision, namely Exhibits 3, 15, 17 and 19, was assessed by the General Court during the earlier proceedings.
45      Exhibit 3 is a report by the Australian Special Rural Research Fund of 17 February 1988 entitled ‘Breeding of apple varieties which grow and produce well in the Australian environment and which are suitable for export’. Exhibits 15, 17 and 19 are, respectively, statutory declarations made by Mr Allan Price in 2017, Mr Cripps in 2018 and Mr Atherton in 2018. The first two were employed by the applicant and the latter was an apple-grower who planted trees of the two varieties at issue during the relevant years.
46      As regards Exhibit 3, it is common ground that it constitutes evidence which was not assessed in the earlier proceedings.
47      As regards Exhibit 15, while acknowledging that it was not admitted because it was submitted late, the CPVO maintains that the Board of Appeal nevertheless made a ruling on its evidential value in the earlier proceedings. As the CPVO itself states, in that decision, the Board of Appeal simply found that the evidence submitted late, including Exhibit 15, was not sufficient to raise serious doubts as to the validity of the title. That does not, however, rule out the possibility that viewing Exhibit 15 together with other documents, in particular new documents which were unknown to the Board of Appeal in the previous proceedings, could lead to the conclusion that serious doubts exist. Furthermore, the Board of Appeal was not competent to give a ruling on evidence submitted late, given that Article 53a(4) of Regulation No 874/2009 clearly provides that the CPVO is not to take into account written submissions or documents, or parts thereof, that have not been submitted within the time limit set by it, and given that that provision applies to proceedings before the Board of Appeal pursuant to Article 51 of that regulation.
48      As regards Exhibits 17 and 19, the CPVO asserts that they were submitted in the earlier proceedings before the Court in the case which gave rise to the judgment of 24 September 2019, Cripps Pink (T‑112/18, EU:T:2019:679). According to the CPVO, even if they were not admitted by the Court, the CPVO had the opportunity to assess them in those proceedings and stated, in its response in the proceedings before the Court, that they did not constitute sufficient evidence.
49      It is apparent from paragraphs 105 and 108 of the judgment of 24 September 2019, Cripps Pink (T‑112/18, EU:T:2019:679), that Exhibits 17 and 19, namely, a statutory declaration signed on 23 January 2018 by the breeder and a statutory declaration by the apple-grower Mr Atherton signed on 8 February 2018, respectively, were adduced for the first time before the Court, such that they were held to be inadmissible. It follows that the General Court in no way ruled on the evidential value of those documents. Furthermore, the CPVO did not have the opportunity to assess those documents when dealing with the nullity application. The mere fact that the CPVO expressed, in a statement submitted during the proceedings before the General Court, its view that those documents could not alter the outcome of its analysis, seeking thereby to defend the decision it had taken, also does not constitute a decision on its part in relation to those documents.
50      In the sixth place, the CPVO also errs in complaining that the Board of Appeal failed to take into account, when assessing the relevance of Exhibits 3, 15, 17 and 19 mentioned above, the principles established by the case-law for the purposes of assessing the evidential value of documents and to which it referred in the initial decisions.
51      In that regard, the case-law makes it clear that, in order to assess the evidential value of a document, regard should first be had 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. In addition, if a statement has been made by persons associated with the applicant, it can only be attributed probative value where it is supported by other evidence (see judgment of 24 September 2019, Cripps Pink, T‑112/18, EU:T:2019:679, paragraph 75 and the case-law cited).
52      First, as regards the CPVO’s criticism that a declaration such as that of Mr Atherton must be supported by specific evidence, it is apparent from the case-law on which the CPVO relies that such evidence may include buyers’ testimonies (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 64). In the present case, Mr Atherton is an apple-grower who stated that he had ordered and received Pink Lady trees on 12 July 1988, such that his declaration is indeed a buyer’s testimony. Furthermore, Mr Atherton also submitted extracts from his diary notes of 9 and 12 July 1988 (Annex A-4.1, pages 414 and 415 of the annexes to the application) in support of his allegation concerning the delivery of 875 Pink Lady trees and his contact with Mr Godley, a former Agricultural Advisor of the applicant.
53      Second, as regards the complaint that the Board of Appeal erred in observing that documentary evidence of sales would have been useful, but not essential, in order to accept the veracity of Mr Atherton’s declaration, submitted as Exhibit 19, the Board of Appeal was correct in finding, in paragraph 68 of the contested decision, in accordance with the case-law cited in paragraph 51 above, that Mr Atherton was not associated with the intervener and that it cannot be presumed that he had an interest in the outcome of the present proceedings, with the result that the Board of Appeal was not required, in the specific circumstances of the present case, to call into question the evidential value of that declaration by requiring additional documentary evidence of sales to be adduced.
54      However, the fact remains that, in the light of the case-law cited in paragraph 51 above, the Board of Appeal was still required to assess Mr Atherton’s declaration in the light of all the evidence produced, which it did by assessing the facts found in that declaration in the context of the facts put forward in other evidence. In paragraph 65 of the contested decision, the Board of Appeal cross-checked the information contained in Exhibit 19 against that contained in Exhibit 3, that is to say, the report to the Australian Special Rural Research Fund dated 17 February 1988, according to which 5 000 trees of each of Pink Lady and Sundowner were planted in commercial orchards in the two years following their release. It stated that that information appeared to be in line with the statutory declarations of Mr Cripps, Mr Allan Price and Mr Atherton, and, accordingly, information from a number of items of evidence, including Exhibit 19, when combined, offered reciprocal corroboration of the content of those declarations.
55      The same is true of Exhibit 17, namely Mr Cripps’ statutory declaration, and Exhibit 15, namely Mr Allan Price’s statutory declaration, to which the Board of Appeal attached particular importance, given that both persons were working for the applicant during the relevant period.
56      In addition, the Board of Appeal observed, in paragraph 68 of the contested decision, that Mr Allan Price’s declaration was, to a certain degree, corroborated by contemporaneous evidence in the form of telephone and diary records and that the report to the Australian Special Rural Research Fund ought also to be regarded as contemporaneous evidence.
57      Lastly, given that the content of the various declarations is supported by other items of evidence, the risk that witnesses’ power of recollection might be altered after very long intervals of time, referred to by the applicant and the CPVO, does not lessen the evidential value of those declarations. Furthermore, while the declarations of Mr Cripps, Mr Allan Price and Mr Atherton in the present case date from 2017 and 2018, the declarations of Mr Cripps and Mr Godley used in the earlier proceedings dated from 2015 and accordingly, in the earlier proceedings also, a long interval of time had elapsed without their evidential value having been called into question on that same, and sole, basis.
58      Third, the Board of Appeal did not err in failing to discuss, in the contested decision, the alleged contradiction between Exhibit 17, namely Mr Cripps’ statutory declaration, and Exhibit 2 provided by the intervener with the nullity application, containing a declaration by Mr Durham. The Board of Appeal was entitled to confine itself, in the contested decision, to finding that Exhibits 3, 15, 17 and 19 were, as a whole, such as to give rise to serious doubts. That finding was sufficient at the stage of the first phase of the proceedings and in order to decide that it was appropriate to open nullity proceedings. It is true that any contradictions with other evidence submitted previously might, as the case may be, dispel those doubts at the stage of the second phase of the procedure, during which a more detailed analysis is required. However, that possibility in no way alters the fact that Exhibits 3, 15, 17 and 19 gave rise to serious doubts.
59      Fourth, as regards the CPVO’s complaint that the Board of Appeal failed to assess Exhibits 4 to 7, it is sufficient to note that the Board of Appeal did not need to carry out such an assessment, given that, after having assessed the new evidence found in Exhibits 3, 15, 17 and 19, it had already concluded that that evidence was sufficient to raise serious doubts within the meaning of Article 53a(2) of Regulation No 874/2009.
60      It follows from the foregoing that the first part of the first plea put forward by the applicant must be rejected.
The second part of the first plea: infringement of Article 53a of Regulation No 874/2009 by reversing the burden of proof
61      The applicant alleges that the Board of Appeal infringed Article 53a of Regulation No 874/2009 by reversing the burden of proof, which is borne exclusively by the intervener as it is the applicant for a declaration of nullity. The applicant refers to two paragraphs of the contested decision in which, in its view, the Board of Appeal infringed the rules relating to the burden of proof. In paragraph 67 of the contested decision, it alleges that the Board of Appeal stated that the applicant did not elaborate on its arguments and, in paragraph 70(iii) of the contested decision, the Board of Appeal observed that it had not received sufficient or relevant evidence to raise valid doubts, or call into question, the accuracy of Mr Atherton’s declaration.
62      The CPVO also criticises the manner in which the Board of Appeal conducted its assessment, which the CPVO regards as amounting to a reversal of the burden of proof laid down in Article 53a of Regulation No 874/2009.
63      The CPVO is of the view that the contested decision appears to indicate that the Board of Appeal was expecting a more active role from the applicant despite the burden of proof being on the person making the application for a declaration of nullity. By stating that it had not been provided with sufficient or relevant evidence to call into question one of the elements of evidence provided by the person making the application for a declaration of nullity, the Board was qualifying the appeal as adversarial in nature by requiring all parties concerned to provide facts and evidence to substantiate their claims.
64      Furthermore, the statement in the contested decision that ‘it would be highly beneficial for the CPVO to make reasonable and proportionate efforts to obtain information, evidence and testimony … given the current absence of CPVO efforts to obtain and investigate, of its own motion, evidence and information in this regard’ implies an active investigative role for the CPVO during the assessment of the evidence provided by the intervener, which runs counter to the principle that the burden of proof as regards the assessment of a nullity application lies with the nullity applicant.
65      The intervener disputes the arguments of the applicant and of the CPVO.
66      Under Article 53a(2) of Regulation No 874/2009, the application to the CPVO to open the proceedings on nullity, 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. It follows that it is for the applicant for a declaration of nullity to adduce clear and concrete evidence capable of raising serious doubts as to the validity of the protection granted.
67      In the contested decision, the Board of Appeal complied with that burden of proof which fell on the intervener. The manner in which the Board of Appeal carried out its assessment does not amount to a reversal of the burden of proof.
68      As regards the applicant’s first argument, it should be noted that, far from reversing the burden of proof, the Board of Appeal simply assessed the applicant’s observations via which it sought to challenge the evidential value of the evidence adduced by the intervener on which the burden of proof fell.
69      In paragraph 67 of the contested decision, the Board of Appeal, after having observed that the evidence indicated that the applicant’s officers had impliedly consented to the marketing of the varieties at issue, assessed the applicant’s argument that it questioned the power of its officers to give such consent. That argument was intended to call into question the evidential value of the evidence adduced by the intervener. In order to assess whether the evidence submitted by the intervener was sufficient to raise serious doubts within the meaning of Article 53a(2) of Regulation No 874/2009, the Board of Appeal necessarily had to analyse its evidential value. It was in the context of that analysis that it took account of the applicant’s arguments seeking to call into question the evidential value of the evidence adduced by the intervener, which does not, however, amount to a reversal of the burden of proof.
70      Similarly, as regards the applicant’s second argument, the Board of Appeal’s finding, in paragraph 70(iii) of the contested decision, that it had not been provided with sufficient or relevant evidence to raise valid doubts or call into question the accuracy or correctness of Mr Atherton’s declaration, also does not infringe the rules on the burden of proof, since what is involved clearly is also the assessment, which is indispensable, of the evidential value of one of the items of evidence adduced by the intervener.
71      Lastly, the CPVO’s complaint that the passage in the contested decision stating that ‘it would be highly beneficial for the CPVO to make reasonable and proportionate efforts to obtain information, evidence and testimony … given the current absence of CPVO efforts to obtain and investigate, of its own motion, evidence and information in that regard’ implies an active investigative role on its part during the assessment of the evidence provided by the intervener is based on a misreading of the contested decision. The passage to which the CPVO refers appears in paragraph 76 of the contested decision. After having concluded, in paragraph 74 of the contested decision, that it was necessary to open nullity proceedings, the Board of Appeal merely provided, in paragraph 76 of the contested decision, indications to the CPVO on the procedure to be followed and on the steps to be taken during that second phase of the proceedings which it had decided to open, clarifying the investigative duties incumbent on the CPVO at that second stage. It follows that, in paragraph 76 of the contested decision, the Board of Appeal in no way criticised the proceedings conducted by the CPVO in the first phase of the proceedings.
72      It follows that the Board of Appeal did not reverse the burden of proof.
73      Therefore, the second part of the first plea must be rejected.
The third part of the first plea: breach of the principles of good administration, legal certainty and legitimate expectations via unlimited challenges to plant variety rights
74      In paragraph 49 of the contested decision, the Board of Appeal stated that neither the applications for a declaration of nullity nor the nullity proceedings themselves could be regarded as a mere continuation of previous proceedings or as a reiteration of a previous application.
75      The applicant submits that it is apparent from the statement referred to in paragraph 74 above that the Board of Appeal enables endless challenges against final decisions of the Court of Justice. That is a threat to legal certainty and to the legitimate interest of rights holders to enjoy their right peacefully. In its view, to allow actions such as that in the present case would amount to calling into question the conclusions reached by the Court in the earlier proceedings. The Board of Appeal has put no limit on the repetition of nullity proceedings and thus breaches the principles of good administration, legal certainty and legitimate expectations.
76      The CPVO supports the applicant’s line of argument and adds that the matter has been definitively settled by the Court of Justice, in the previous proceedings, confirming the validity of the title, having the force of res judicata. Despite the fact that a final judgment exists, the applicant is thereby forced to defend the validity of its rights, even if the arguments and evidence provided are essentially the same as the arguments and evidence assessed in the previous proceedings.
77      The intervener disputes the arguments of the applicant and of the CPVO.
78      In that regard, the legislature did not lay down any restriction on the use of nullity proceedings, in Article 20 of Regulation No 2100/94, by various persons making an application for a declaration of nullity, with the exception of the rule established in Article 53a(2) of Regulation No 874/2009, whereby the applicant for a declaration of nullity, before being put in a position to have the validity of the title reviewed, must prove that there are serious doubts as to the validity of the title.
79      It is precisely that requirement for the applicant for a declaration of nullity to establish that there are serious doubts, even before nullity proceedings have been opened, which guarantees that it is not possible to apply, in the interests of a third party, in all circumstances and without specific reasons, for the annulment of that protection after the proceedings granting that right (see, to that effect, judgment of 21 May 2015, Schräder v CPVO, C‑546/12 P, EU:C:2015:332, paragraph 54, on which Article 53a of Regulation No 874/2009 is based).
80      Furthermore, as the CPVO and the applicant acknowledge, the principle of res judicata does not preclude the intervener making nullity applications, given that the intervener is a different legal entity from the nullity applicant in the case which gave rise to the judgment of 24 September 2019, Cripps Pink, (T‑112/18, EU:T:2019:679).
81      Consequently, the third part of the first plea must be rejected and, therefore, the first plea in its entirety.
The second plea: infringement of Article 10 of Regulation No 2100/94, read in conjunction with Article 53a of Regulation No 874/2009 and the provisions regarding the burden of proof
82      The second plea is divided into three parts, alleging (i) disregard for ‘purposes of exploitation of the variety’, (ii) misinterpretation and misapplication of the concept of ‘consent’ of the breeder as regards implicit consent and (iii) an incorrect assessment of the facts as regards the consent of the breeder to the disposal and exploitation of the variety.
The first part of the second plea: the condition that the disposal must be made ‘for purposes of exploitation of the variety’ was disregarded
83      In paragraph 67 of the contested decision, the Board of Appeal stated that it appeared that the material of the varieties at issue was provided to commercial nurseries without any restriction as regards their use, that, although the applicant’s officers had an interest in knowing how the trees would develop in the commercial nurseries, in the case of the disposals at issue, there was no mention or other indication of disposal for test purposes only and that those disposals would indicate consent for the exploitation of the varieties. In paragraph 70(ii) of the contested decision, the Board of Appeal found that an unrestricted disposal of variety constituents to commercial nurseries with the consent of the breeder, whether involving a sale or otherwise, constituted a disposal for purposes of exploitation of the variety by the nursery. Finally, in paragraph 70(iii), it noted that Mr Atherton’s declaration showed that, in 1988, the applicant’s officer, Mr Godley, was seemingly not aware of any obstacle for Mr Atherton to acquire and commercially exploit the Pink Lady and Sundowner trees.
84      The applicant and the CPVO criticise the Board of Appeal for having failed to have sufficient regard to the fact that Article 10 of Regulation No 2100/94 requires that the sale or disposal be made ‘for purposes of exploitation of the variety’. According to the applicant, that condition requires there to be a sufficiently close connection between the transaction and the variety’s commercial exploitation. That condition is qualitative, not quantitative in nature and does not speak of a specific number of sales or disposal but rather of an evident desire to make sales.
85      The CPVO supports the applicant’s arguments and submits that the Board of Appeal did not even mention the additional requirement of the commercial purpose in paragraph 56 of the contested decision.
86      By contrast, the Court stated in 2019, in the case which gave rise to the judgment of 24 September 2019, Cripps Pink (T‑112/18, EU:T:2019:679), that the concept of ‘exploitation’ of the variety within the meaning of Article 10(1) of Regulation No 2100/94 relates to exploitation for profit, but excludes commercial trials.
87      The intervener disputes the arguments of the applicant and of the CPVO.
88      Article 10(1) of Regulation No 2100/94 requires, for a plant variety right to be protected, that ‘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 [of that regulation], for purposes of exploitation of the variety’.
89      As regards the concept of ‘exploitation’ of the variety, the Court has held that Article 10(1) of Regulation No 2100/94 relates to exploitation for profit, as further demonstrated by the provisions of that regulation relating to contractual exploitation rights, but that concept excludes commercial trials aimed at assessing varieties under commercial conditions across a range of soil types and different farming systems to determine their value to customers (judgment of 24 September 2019, Cripps Pink, T‑112/18, EU:T:2019:679, paragraph 68).
90      In paragraph 62 of the contested decision, the Board of Appeal set out Mr Cripps’ declaration that the trees were distributed to local nurseries and growers with the intention being to benefit the Australian apple-growing industry with new varieties. In addition, Mr Cripps stated that he had provided commercial growers with propagative material to build trees that produced fruit intended to be sold in the marketplace. According to paragraph 63 of the contested decision, Mr Allan Price recalled that the technical team of the applicant’s horticultural division was encouraged to develop and promote the varieties at issue. In paragraph 65 of the contested decision, the Board of Appeal noted that, according to the report of the Australian Special Rural Research Fund dated 17 February 1988, approximately 5 000 trees of each of Pink Lady and Sundowner had been planted in commercial orchards in the two years since the release of those varieties. The Board of Appeal also repeated a number of times, citing witness statements, that the trees had been delivered ‘without placing any restriction’ (paragraph 62 of the contested decision), ‘without any restrictions being ever placed’ (paragraph 63 of the contested decision) and ‘there were no restrictions of any kind’ (paragraph 64 of the contested decision). In his declaration, cited in paragraph 62 of the contested decision, Mr Cripps gave, in particular, an example of a disposal with no formal restriction on further planting and commercialisation. In paragraph 67 of the contested decision, the Board of Appeal summarised the information referred to above as follows: ‘It therefore appears that the material was provided to commercial nurseries without any restrictions as regards their use. In particular, it appears that, although [the applicant’s] officers had an interest in knowing how the trees would develop in commercial nurseries, in the case of these particular disposals there was no mention or other indication of disposal for test purposes only. Such disposals would indicate consent for exploitation of the varieties.’
91      The Board of Appeal also did not, as the applicant’s representative alleged at the hearing, disregard the ‘commercial’ nature of the exploitation. In that regard, it is apparent from the end of paragraph 64 of the contested decision that the Board of Appeal did in fact take it into account.
92      It follows that the Board of Appeal did not disregard the condition that the disposal was to be made ‘for purposes of exploitation of the variety’.
93      The Board of Appeal did not therefore err in that regard, with the result that the first part of the second plea must be rejected.
The second part of the second plea: misinterpretation and misapplication of the concept of ‘consent’ of the breeder as regards implicit consent
94      In paragraph 58 of the contested decision, the Board of Appeal noted that the term ‘consent’ in Article 10(1) of Regulation No 2100/94 included implicit consent. In that regard, the Board of Appeal criticised the CPVO for having found in the initial decisions, disregarding the practice of the Board of Appeal and the case-law of the Court, that implicit consent was not generally sufficient to raise serious doubts as to the validity of a plant variety right.
95      As regards the assessment of the facts which could constitute such implicit consent, the Board of Appeal observed, in paragraph 67 of the contested decision, that the new evidence referred to concrete disposals of variety constituents to commercial nurseries other than Olea Nurseries and How Green Nursery before the novelty bar date. Since no letter of the same type as the letters which played an important role in the earlier proceedings is referred to, it appears that the material was supplied to commercial nurseries with no restriction as to its use. In particular, it appears that, although it was in the interest of the applicant’s officers to know how the trees would grow in commercial nurseries, in those particular disposals, no reference or other indication limited the supply of the material to testing purposes. Such disposals would indicate consent for exploitation of the varieties.
96      The applicant criticises the scope which the Board of Appeal attributed to the concept of implicit consent. According to the applicant, the Board of Appeal confirmed that there was a general principle that the purpose of any disposal of variety constituents to a commercial nursery would necessarily be for the purpose of exploitation of the variety. There are in fact certain circumstances in which that is not the case, such as, for example, if the nursery was regularly used by the breeder to conduct field trials and the breeder knew that the constituents would not be further disposed of until the breeder had recommended them for plantation.
97      The applicant points out that Mr Cripps, as an officer of the Western Australian Department of Agriculture, had permission from the Chief of the Plant Research Division to release the varieties only ‘for extensive trial and evaluation under commercial conditions’. Although the applicant informed the Board of Appeal of that restriction in paragraph 172 of its observations of 13 July 2022, the Board of Appeal failed to take it into account.
98      However, in paragraph 62 of the contested decision, the Board of Appeal found it significant that the applicant had never sought to nor envisaged taking out any patent or other kind of intellectual property protection in Australia for the varieties at issue, although that argument is irrelevant for the purpose of determining whether a variety meets the novelty requirement for the purposes of Article 10 of Regulation No 2100/94, as the Court correctly held in paragraph 83 of the judgment of 24 September 2019, Cripps Pink (T‑112/18, EU:T:2019:679).
99      The CPVO supports the applicant’s line of argument and is of the view that the legal interpretation of the concepts of ‘novelty’ and of ‘consent’ of the breeder falls within the merits of the nullity application and that discussion thereof should therefore not be permitted in the first phase of nullity proceedings.
100    The intervener disputes the arguments of the applicant and of the CPVO.
101    In the first place, in the present case, it is essential, in the context of the procedure governed by Article 53a of Regulation No 874/2009, to answer the legal question of whether the concept of ‘consent’ within the meaning of Article 10 of Regulation No 2100/94 includes implicit consent (see paragraph 31 above).
102    According to the case-law, the consent of the breeder required by Article 10 of Regulation No 2100/94 to destroy novelty may be provided by the breeder in a manner which is express or implicit, that is to say, the breeder gives an authorisation which is clear or which can be inferred from the breeder’s acts or behaviour or from the general facts and circumstances.
103    It is indeed apparent from the case-law that, where it is established that disposals took place before the deadline, it is for the breeder to demonstrate that those disposals were limited to research purposes only (see, to that effect, judgment of 13 July 2017, Boomkwekerij van Rijn-de Bruyn v CPVO – Artevos (Oksana), T‑767/14, not published, EU:T:2017:494, paragraph 107). In the case which gave rise to the judgment cited above, it was common ground that the variety in question had been transferred to a research institute. The Board of Appeal and, subsequently, the Court, nevertheless found that, given that the applicant had not succeeded in proving that the research institutes to which the variety had been transferred had to obtain the consent of the breeder in order to transfer it to third parties, the breeder had impliedly consented to its commercial exploitation (judgment of 13 July 2017, Oksana, T‑767/14, not published, EU:T:2017:494, paragraphs 21, 63, 98, 100 and 108). It follows that implicit consent on the part of the breeder to a disposal for purposes of exploitation of the variety may also be regarded as novelty destroying.
104    In 2024, however, the Court had occasion to clarify that, where a restriction on supplies of plant material for purely experimental purpose was proven, such supplies for scientific purposes did not become disposals for commercial purposes where there was no express prohibition on marketing (judgment of 11 September 2024, Eurosemillas v CPVO – Nador Cott Protection and Carpa Dorada (Nadorcott), T‑145/23, not published, EU:T:2024:611, paragraph 67).
105    The existence of implicit consent does not therefore mean that the breeder must always expressly place restrictions. Indeed, as the term ‘implicit’ indicates, the existence of implicit consent implies only that it is not necessary to prove that the breeder has expressly authorised commercial exploitation. However, it must be possible to infer from the circumstances of the case, and in particular from the behaviour of the breeder, that the breeder agreed to commercial exploitation. In the absence of such aspects in the behaviour of the breeder or the circumstances of the case, there can be no implicit consent.
106    Furthermore, as the intervener correctly observes, the applicant itself acknowledged that it did not dispute that, where certain facts existed and in specific circumstances, the breeder could be deemed to have given consent, even if not express, to the supply of variety constituents for purposes of exploitation of the variety.
107    The Board of Appeal therefore was fully entitled to explain, in paragraph 56 of the contested decision, that there was implicit consent within the meaning of the case-law cited in paragraph 103 above where the consent of the breeder could be inferred from the acts or behaviour of the breeder, or from the general facts and circumstances.
108    In the second place, it is also necessary to reject the criticism by the applicant and the CPVO of what constitutes a correct assessment of evidence of implicit consent.
109    First, contrary to the assertions of the applicant, the Board of Appeal did not confirm that there was a general principle that the purpose of any disposal of variety constituents to a commercial nursery would necessarily be for the purpose of exploitation of the variety. Rather, the Board of Appeal simply assessed the facts of the case and found that there was sufficient evidence that the varieties at issue had been sold to commercial nurseries with no restriction. That evidence appeared to it to be sufficient to raise serious doubts as to the novelty requirement.
110    Second, it is necessary to reject the applicant’s argument that the Board of Appeal erred in attaching, in paragraph 62 of the contested decision, importance to the fact that the applicant had never sought to nor envisaged taking out any patent or other kind of intellectual property protection in Australia for the varieties at issue.
111    In that regard, it is correct that the fact referred to in paragraph 110 above is not something which can be used to determine whether a variety meets the requirement for novelty within the meaning of Article 10 of Regulation No 2100/94. However, the Board of Appeal did not base its decision on that fact. While it included that fact, in paragraph 62 of the contested decision, as forming an integral part of Mr Cripps’ declaration, it used it only as information supporting Mr Cripps’ statement that the material had been disposed of with no restriction as regards its use.
112    The second part of the second plea must therefore be rejected.
The third part of the second plea: incorrect assessment of the facts as regards the implicit consent of the breeder to the disposal and exploitation of the varieties
113    The applicant and the CPVO criticise the Board of Appeal for having made errors in the assessment of the evidential value of Exhibits 3, 15, 17 and 19 as regards whether there was implicit consent.
114    As regards Exhibit 3, the applicant argues that it is clear from that document that the reference to the ‘release’ of the varieties at issue simply means that the two varieties had been bred successfully and that they were subsequently being tested by persons other than the initial breeder. In its view, that constitutes a release for further trials under commercial conditions.
115    The CPVO argues that the Board of Appeal disregarded the summary in the last paragraph of Exhibit 3 which it adduced as Annex B.5, and according to which the two varieties at issue were being ‘tested widely in Australia’. That observation contradicts the Board of Appeal’s conclusion in paragraph 70(iv) of the contested decision that Exhibit 3 did not refer to testing in Australia.
116    The intervener disputes the arguments of the applicant and of the CPVO.
117    First, the applicant does not refer to any specific evidence concerning the assessment and the further trials in the reports which make up Exhibit 3 or in other evidence. In that regard, the intervener correctly points out that it is apparent from the declarations of Mr Cripps, Mr Allan Price and Mr Atherton (Exhibits 15, 17 and 19) regarding specific sales to commercial nurseries from 1987 to 1989 that there was no restriction on use to testing purposes. Indeed, it is precisely that context which shows that there was nothing demonstrating that the varieties were released with a view to carrying out further trials.
118    On the contrary, the report adduced as Exhibit 3 contains passages which indicate that research was no longer ongoing when that report was published in 1988, since it presents the Pink Lady and Sundowner varieties as past achievements and models for subsequent developments (hybridisation). In that regard, Appendix 1 to that report states that what is concerned are varieties ‘already produced’ from the breeding programme, which are among the apple varieties ‘which have been released’ from the breeding programme (‘…varieties already produced from the breeding programme such as Pink Lady and Sundowner … There are no new export apple varieties which can be grown in the Australian environment apart from Pink Lady and Sundowner which have been released from the Western Australian breeding programme’).
119    Second, the CPVO’s criticism, which is based on an observation found in the summary in Exhibit 3, that the two varieties at issue were ‘tested widely in Australia’ disregards the context of that summary. In fact, that Exhibit 3 comprises a number of reports. Pages 1 to 11 constitute a first report, on page 6 of which it is stated that ‘approximately 5 000 trees each of Pink Lady and Sundowner have been planted in commercial orchards in the two years since release. The rate of planting is only restricted by the lack of planting material’.
120    On the twelfth page of Exhibit 3 there is a second report of only one page dated 17 February 1988, which states as follows:
‘The two varieties released to fruitgrowers from the programme, Pink Lady and Sundowner are being propagated in quantity by nurserymen and 10 000 trees of each should be available over the next two years. There is also considerable interest in these varieties in other states and propagating material is becoming widely distributed throughout Australia. Material has also been sent to New Zealand under a testing agreement.’
121    The third report contained in Exhibit 3 states that ‘some criticism has been passed on from Eastern States growers of the fact that the varieties are not yet in retail outlets, but the time of 17-18 years from the making of the cross to retail availability, which has been achieved, is extremely short …’. Even in that report, there is therefore no question of any restriction on distribution solely for testing purposes. Although the summary of that third report states that the two varieties which had by that point been released were widely tested in Australia, that can be understood only as meaning that the varieties were tested on an industrial scale, there being, however, no evidence that restrictions had been imposed on purchasers and apple-growers as regards the exploitation of plant material. Accordingly, that summary does not contradict the passage relied on by the Board of Appeal. It follows that the Board of Appeal did not err in finding that the document referred to testing conditions only for New Zealand, whereas, in Australia, plant material appeared to have been widely distributed with no restriction before the deadline.
122    Similarly, it is necessary to reject the criticism by the applicant and the CPVO of Exhibit 15.
123    The applicant questions the relevance of Mr Price’s statutory declaration, relying, inter alia, on an alleged confusion in the timeline of events, the fact that the word ‘sales’ is not used in his declaration, the fact that one of the disposals is described as a ‘trial’ and the fact that one of the five growers named by Mr Price was a research officer for the Tasmanian Department of Agriculture. The applicant submits that the Board of Appeal could not merely cite, in paragraph 63 of the contested decision, that declaration without explaining why it raised serious doubts.
124    In that regard, as has already been recalled in paragraphs 55 and 56 above, the Board of Appeal confirmed Mr Allan Price’s statutory declaration by cross-checking information in the evidence regarded as contemporaneous, and also compared it with the declarations of the other witnesses.
125    As regards the reference to a trial in Mr Allan Price’s declaration, it is apparent from the wording of that declaration, which, broadly, is reproduced in paragraph 63 of the contested decision and is also found in Annex A-4.3 to the file, that Mr Allan Price included in his declaration a situation in which equal numbers of trees of the varieties Pink Lady, Sundowner and Gala, each on three different rootstocks, were planted on approximately 1.5 acres of a grower’s property. Despite the use of the word ‘trial’ in Mr Allan Price’s declaration, there is nothing demonstrating, in that declaration or in the other evidence assessed, that in that context a trial was being organised with the participation of commercial growers in order to evaluate the new varieties before allowing them to be used commercially. In his declaration, Mr Allan Price lists, in particular, a large number of ‘orders’ placed by various growers, who are individually named, without noting any trial restrictions or context in relation to those orders. On the contrary, Mr Allan Price concludes his declaration by noting that ‘it is obvious that Pink Lady wood was flowing freely through the apple industry …’.
126    Furthermore, the applicant’s allegation that Mr Allan Price refers only to the ‘disposal’ and to the ‘collection of Lady Pink trees’, but does not mention any ‘sale’, is irrelevant. For a plant variety to be protected, Article 10(1) of Regulation No 2100/94 requires that ‘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 [of Regulation No 2100/94], for purposes of exploitation of the variety’. It follows that it is irrelevant whether plant material was sold or disposed of in some other way.
127    In addition, apple growers who had received plants of the two varieties at issue had sold the fruit grown, which was, accordingly, not reserved for tests preventing it being exploited commercially. It is apparent from the declarations of Mr Atherton and Mr Allan Price that distribution was not only at the initiative of the applicant’s employees but also at the initiative of growers who wished to obtain more material. Growers do not, prima facie, have a research interest, but an economic interest. According to Mr Cripps’ declaration in 2018, which is reproduced at the end of paragraph 62 of the contested decision, the purpose of the distribution was to produce ‘fruit to be sold in the marketplace’. Similarly, Mr Atherton stated that ‘at no time were there any restrictions, of any kind and for whatsoever reason, placed on the aforesaid trees as to our ability to grow and sell the fruit. We sold Pink Lady apples independently through our local market agent.’
128    The fact that Mr Allan Price had indicated that one of the five growers with whom he and his colleagues had been in contact in their role as ‘Fruit Advisors of the Department, providing both research findings and technical instruction to fruit growers’, was a research officer for the Tasmanian Department of Agriculture does not in any way alter the evidential value of his declaration as to whether there were disposals for purposes of exploitation during the relevant period, since the other four growers referred to in paragraph 2 of his statutory declaration were not, in any event, research officers.
129    The CPVO’s argument that the Board of Appeal attributed a secondary role to the requirement of commercial exploitation – in that, in paragraph 70(ii) of the contested decision, it simply assumed commercial exploitation from the fact that other requirements of sales of variety constituents were fulfilled and the consent of the breeder – is not justified in the light of the commercial context of those disposals and of the scale of distribution of plants and propagative material and given there is no evidence of disposals for testing purposes only.
130    In that context, it must be recalled that the analysis which the Board of Appeal was required to carry out was part of the first phase of nullity proceedings, during which the Board of Appeal must confine itself to determining whether there are serious doubts and is not supposed to make any finding on the substance by taking a view on whether the applicant for a declaration of nullity succeeded in proving a lack of novelty.
131    As regards the allegation that Exhibit 15 had been regarded as having no evidential value in the earlier proceedings, it is sufficient to refer to paragraph 47 above. As regards the fact that that declaration deals with facts which occurred more than 30 years earlier, reference should be made to paragraph 57 above.
132    As regards Exhibit 17, the applicant also reiterates the arguments concerning the Court’s findings in the earlier case, which have already been rejected in paragraph 49 above. Similarly, the applicant’s point regarding the interpretation of the various declarations in the light of all the evidence has already been dealt with in paragraph 55 above.
133    As regards Exhibit 19, which contains Mr Atherton’s declaration, the applicant criticises the Board of Appeal for having taken it into account even though it was not relevant, given that the reference to the fact that the Western Australian Department of Agriculture was aware of such plantings and that it used them to demonstrate ‘how the varieties were performing’ is vague, undated and only shows that, if the applicant did have actual knowledge of those plantings under commercial conditions, it used them as another trial location.
134    However, that criticism is not justified. In the first place, in his declaration, Mr Atherton stated that an employee of the applicant, an expert on the subject, had recommended to him, in June 1987, that he plant trees of the two varieties at issue. He stated that he had placed the order for those trees in June 1987, that they had been delivered in July 1988 and that the applicant had knowledge of those plantings. It follows that the events described are precisely dated. In the second place, contrary to what the applicant appears to assert, it does not follow from that declaration that the plantings were carried out for testing purposes. On the contrary, it is apparent that Mr Atherton, a commercial apple-grower, had decided to plant fruit trees and then asked the applicant which varieties it recommended. It follows that the plantings were carried out in Mr Atherton’s commercial interests. Accordingly, the Board of Appeal did not err in finding that Mr Atherton’s declaration was relevant.
135    As regards Exhibits 17 and 19, the CPVO calls into question their evidential value. In that regard, it is sufficient to refer to paragraphs 50 and 59 above.
136    Lastly, it is necessary to reject the applicant’s argument that the Board of Appeal did not refer to the documentary evidence adduced by the applicant in support of the fact that it had consented to the exploitation of the varieties at issue only from 1990, when it added them to its catalogue of recommended varieties.
137    In that regard, while the applicant may recommend certain varieties, the fact that a variety is not found in its catalogue of recommended varieties in no way proves that that variety could not be commercially exploited, but only proves that it was not one of the recommended varieties. The Board of Appeal did not err in not taking that evidence into account, particularly since it was sufficient for it to analyse whether the evidence adduced by the intervener was such as to raise serious doubts.
138    In the light of all the foregoing, it is necessary to reject the third part of the second plea and, therefore, that plea in its entirety.
139    Since none of the pleas raised by the applicant is well founded, the action must be dismissed in its entirety, that is to say, both the first head of claim seeking annulment of the contested decision and the second head of claim seeking alteration of that decision, there being no need to give a ruling on the admissibility of Annex A-1.10.
Costs
140    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. Since the applicant and the CPVO have been unsuccessful, the applicant must be ordered to pay the costs, in accordance with the form of order sought by the intervener.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders the Western Australian Agriculture Authority (WAAA) to pay the costs of Teak Enterprises Pty Ltdand to bear its own costs;
3.      Orders the Community Plant Variety Office (CPVO) to bear its own costs.
Škvařilová-Pelzl
Steinfatt
Kukovec
Delivered in open court in Luxembourg on 24 September 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.