1994R2100 — EN — 27.04.1995 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC)No 2100/94
of 27 July 1994
on Community plant variety rights
(OJ L 227, 1.9.1994, p. 1)
Amended by:
Official Journal
No page date
►M1 Council Regulation (EC) No 2506/95 of 25 October 1995 L 258 3 28.10.1995
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COUNCIL REGULATION (EC)No 2100/94
of 27 July 1994
on Community plant variety rights
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 235 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the European Parliament (2),
Whereas plant varieties pose specific problems as regards the industrial
property régime which may be applicable;
Whereas industrial property regimes for plant varieties have not been
harmonized at Community level and therefore continue to be regulatedby the legislation of the Member States, the content of which is notuniform;
Whereas in such circumstances it is appropriate to create a Community
regime which, although co-existing with national regimes, allows forthe grant of industrial property rights valid throughout the Community;
Whereas it is appropriate that the implementation and application of this
Community regime should not be carried out by the authorities of theMember States but by a Community Office with legal personality, the‘Community Plan Variety Office';
Whereas the system must also have regard to developments in plant
breeding techniques including biotechnology; whereas in order to stimu-late the breeding and development of new varieties, there should beimproved protection compared with the present situation for all plantbreeders without, however, unjustifiably impairing access to protectiongenerally or in the case of certain breeding techniques;
Whereas varieties of all botanical genera and species should be protect-
able;
Whereas protectable varieties must comply with internationally recog-
nized requirements, i.e. distinctness, uniformity, stability and novelty,and also be designated by a prescribed variety denomination;
Whereas it is important to provide for a definition of a plant variety, in
order to ensure the proper functioning of the system;
Whereas this definition is not intended to alter definitions which may
have been established in the field of intellectual property rights, espe-cially the patent field, nor to interfere with or exclude from applicationlaws governing the protectability of products, including plants and plantmaterial, or processes under such other industrial property rights;
Whereas it is however highly desirable to have a common definition in
both fields; whereas therefore appropriate efforts at international levelshould be supported to reach such a common definition;
Whereas for the grant of Community plant variety rights an assessment
of important characteristics relating to the variety is necessary; whereas,however, these characteristics need not necessarily relate to theireconomic importance;
Whereas the system must also clarify to whom the right to Community
plant variety protection pertains; whereas in some cases it would be to
(1) OJ No C 244, 28. 9. 1990, p. 1 and OJ No C 113, 23. 4. 1993, p. 7.
(2) OJ No C 305, 23. 11. 1992, p. 55 and OJ No C 67, 16. 3. 1992, p. 148.
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several persons in common, not just to one; whereas the formal entitle-
ment to make applications must be regulated;
Whereas the system must also define the term ‘holder' used in this
Regulation; whereas that term ‘holder' without further specification isused in this Regulation including in its Article 29 (5), it is intended tobe within the meaning of Article 13 (1) thereof;
Whereas, since the effect of a Community plant variety right should be
uniform throughout the Community, commercial transactions subject tothe holder’s agreement must be precisely delimited; whereas the scopeof protection should be extended, compared with most national systems,to certain material of the variety to take account of trade via countriesoutside the Community without protection; whereas, however, the intro-duction of the principle of exhaustion of rights must ensure that theprotection is not excessive;
Whereas in order to stimulate plant breeding, the system basically
confirms the internationally accepted rule of free access to protectedvarieties for the development therefrom, and exploitation, of new vari-eties;
Whereas in certain cases where the new variety, although distinct, is
essentially derived from the initial variety, a certain form of dependencyfrom the holder of the latter one should be created;
Whereas, the exercise of Community plant variety rights must be
subjected to restrictions laid down in provisions adopted in the publicinterest;
Whereas this includes safeguarding agricultural production; whereas
that purpose requires an authorization for farmers to use the product ofthe harvest for propagation under certain conditions;
Whereas itmustbe ensured t hatt he condit ions are laid down at
Community level;
Whereas compulsory licensing should also be provided for under certain
circumstances in the public interest, which may include the need tosupply the market with material offering specified features, or to main-tain the incentive for continued breeding of improved varieties;
Whereas the use of prescribed variety denominations should be made
obligatory;
Whereas the Community plant variety right should in principle have a
life of at least 25 years and in the case of vine and tree species, at least30 years; whereas other grounds for termination must be specified;
Whereas a Communit y plantvariet y rightis an objectof t he holder’s
property and its role in relation to the non-harmonized legal provisionsof the Member States, particularly of civil law, must therefore beclarified; whereas this applies also to the settlement of infringementsand the enforcement of entitlement to Community plant variety rights;
Whereas, it is necessary to ensure that the full application of the
principles of the Community plant variety rights system is not impairedby the effects of other systems; whereas for this purpose certain rules, inconformity with Member States’ existing international commitments,are required concerning the relationship to other industrial propertyrights;
Whereas it is indispensable to examine whether and to what extent the
conditions for the protection accorded in other industrial propertysystems, such as patents, should be adapted or otherwise modified forconsistency with the Community plant variety rights system; whereasthis, where necessary, should be laid down in balanced rules by addi-tional Community law;
Whereas the duties and powers of the Community Plant Variety Office,
including its Boards of Appeal, relating to the grant, termination orverification of Community plant variety rights and publications are asfar as possible to be modelled on rules developed for other systems, asare also the Office’s structure and Rules of Procedure, the collaborationwith the Commission and Member States particularly through an
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Administrative Council, the involvement of Examination Offices in
technical examination and moreover the necessary budgetary measures;
Whereas the Office should be advised and supervised by the aforemen-
tioned Administrative Council, composed of representatives of MemberStates and the Commission;
Whereas the Treaty does not provide, for the adoption of this Regula-
tion, powers other than those of Article 235;
Whereas this Regulation takes into account existing international
conventions such as the International Convention for the Protection ofNew Varieties of Plants (UPOV Convention), the Convention of theGrant of European Patents (European Patent Convention) or the Agree-ment on trade-related aspects of intellectual property rights, includingtrade in counterfeit goods; whereas it consequently implements the banon patenting plant varieties only to the extent that the European PatentConvention so requires, i.e. to plant varieties as such;
Whereas this Regulation should be re-examined for amendment as
necessary in the light of future developments in the aforementionedConventions,
HAS ADOPTED THIS REGULATION:
PART ONE
GENERAL PROVISIONS
Article 1
Community plant variety rights
A system of Community plant variety rights is hereby established as the
sole and exclusive form of Community industrial property rights forplantvariet ies.
Article 2
Uniform effect of Community plant variety rights
Community plant variety rights shall have uniform effect within the
territory of the Community and may not be granted, transferred orterminated in respect of the abovementioned territory otherwise than ona uniform basis.
Article 3
National property rights for plant varieties
This Regulation shall be without prejudice to the right of the Member
States to grant national property rights for plant varieties, subject to theprovisions of Article 92 (1).
Article 4
Community Office
For the purpose of the implementation of this Regulation a Community
Plant Variety Office, hereinafter referred to as ‘the Office', is herebyestablished.
PART TWO
SUBSTANTIVE LAW
CHAPTER I
CONDITIONS GOVERNING THE GRANT OF COMMUNITY PLANT
VARIETY RIGHTS
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Article 5
Object of Community plant variety rights
1. Varieties of all botanical genera and species, including, inter alia ,
hybrids between genera or species, may form the object of Communityplant variety rights.
2. For the purpose of this Regulation, ‘variety'shall be taken to mean
a plant grouping within a single botanical taxon of the lowest knownrank, which grouping, irrespective of whether the conditions for thegrantof a plantvariet y rightare fully met , can be:
— defined by the expression of the characteristics that results from a
given genotype or combination of genotypes,
— distinguished from any other plant grouping by the expression of at
least one of the said characteristics, and
— considered as a unit with regard to its suitability for being propa-
gated unchanged.
3. A plant grouping consists of entire plants or parts of plants as far
as such parts are capable of producing entire plants, both referred tohereinafter as ‘variety constituents'.
4. The expression of the characteristics referred to in paragraph 2,
first indent, may be either invariable or variable between variety constit-uents of the same kind provided that also the level of variation resultsfrom the genotype or combination of genotypes.
Article 6
Protectable varieties
Community plant variety rights shall be granted for varieties that are:
(a) distinct;
(b) uniform;
(c) stable; and
(d) new.
Moreover, the variety must be designated by a denomination in accord-
ance with the provisions of Article 63.
Article 7
Distinctness
1. A variety shall be deemed to be distinct if it is clearly distinguish-
able by reference to the expression of the characteristics that resultsfrom a particular genotype or combination of genotypes, from any othervariety whose existence is a matter of common knowledge on the dateof application determined pursuant to Article 51.
2. The existence of another variety shall in particular be deemed to
be a matter of common knowledge if on the date of application deter-mined pursuant to Article 51:
(a) itwas t he objectof a plantvariet y rightor ent ered in an official
register of plant varieties, in the Community or any State, or in anyintergovernmental organization with relevant competence;
(b) an application for the granting of a plant variety right in its respect
or for its entering in such an official register was filed, provided theapplication has led to the granting or entering in the meantime.
The implementing rules pursuant to Article 114 may specify further
cases as examples which shall be deemed to be a matter of commonknowledge.
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Article 8
Uniformity
A variety shall be deemed to be uniform if, subject to the variation that
may be expected from the particular features of its propagation, it issufficiently uniform in the expression of those characteristics which areincluded in the examination for distinctness, as well as any others usedfor the variety description.
Article 9
Stability
A variety shall be deemed to be stable if the expression of the character-
istics which are included in the examination for distinctness as well asany others used for the variety description, remain unchanged afterrepeated propagation or, in the case of a particular cycle of propagation,att he end of each such cycle.
Article 10
Novelty
1. A variety shall be deemed to be new if, at the date of application
determined pursuant to Article 51, variety constituents or harvestedmaterial of the variety have not been sold or otherwise disposed of toothers, by or with the consent of the breeder within the meaning ofArticle 11, for purposes of exploitation of the variety:
(a) earlier than one year before the abovementioned date, within the
territory of the Community;
(b) earlier than four years or, in the case of trees or of vines, earlier
than six years before the said date, outside the territory of theCommunity.
2. The disposal of variety constituents to an official body for statu-
tory purposes, or to others on the basis of a contractual or other legalrelationship solely for production, reproduction, multiplication, condi-tioning or storage, shall not be deemed to be a disposal to others withinthe meaning of paragraph 1, provided that the breeder preserves theexclusive right of disposal of these and other variety constituents, andno further disposal is made. However, such disposal of variety constitu-ents shall be deemed to be a disposal in terms of paragraph 1 if theseconstituents are repeatedly used in the production of a hybrid varietyand if there is disposal of variety constituents or harvested material ofthe hybrid variety.
Likewise, the disposal of variety constituents by one company or firm
within the meaning of the second paragraph of Article 58 of the Treatyto another of such companies or firms shall not be deemed to be adisposal to others, if one of them belongs entirely to the other or if bothbelong entirely to a third such company or firm, provided no furtherdisposal is made. This provision shall notapply in respectof cooper-ative societies.
3. The disposal of variety constituents or harvested material of the
variety, which have been produced from plants grown for the purposesspecified in Article 15 (b) and (c) and which are not used for furtherreproduction or multiplication, shall not be deemed to be exploitation ofthe variety, unless reference is made to the variety for purposes of thatdisposal.
Likewise, no account shall be taken of any disposal to others, if it either
was due to, or in consequence of the fact that breeder had displayed thevariety at an official or officially recognized exhibition within themeaning of the Convention on International Exhibitions, or at an exhibi-tion in a Member State which was officially recognized as equivalent bythat Member State.
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CHAPTER II
PERSONS ENTITLED
Article 11
Entitlement to Community plant variety rights
1. The person who bred, or discovered and developed the variety, or
his successor in title, both — the person and his successor — referred tohereinafter as ‘the breeder', shall be entitled to the Community plantvariety right.
2. If two or more persons bred, or discovered and developed the
variety jointly, entitlement shall be vested jointly in them or theirrespective successors in title. This provision shall also apply to two ormore persons in cases where one or more of them discovered the varietyand the other or the others developed it.
3. Entitlement shall also be invested jointly in the breeder and any
other person or persons, if the breeder and the other person or personshave agreed to joint entitlement by written declaration.
4. If the breeder is an employee, the entitlement to the Community
plant variety right shall be determined in accordance with the nationallaw applicable to the employment relationship in the context of whichthe variety was bred, or discovered and developed.
5. Where entitlement to a Community plant variety right is vested
jointly in two or more persons pursuant to paragraphs 2 to 4, one ormore of them may empower the others by written declaration to sucheffect to claim entitlement thereto.
Article 12
Entitlement to file an application for a Community plant variety
right
1. An application for a Community plant variety right may be filed
by any natural or legal person, or any body ranking as a legal personunder the law applicable to that body, provided they are:
(a) nationals of one of the Member States or nationals of a member of
the Union for the Protection of New Varieties of Plants within themeaning of Article 1 (xi) of the Act of 1991 of the InternationalConvention for the Protection of New Varieties of Plants, or aredomiciled or have their seat or an establishment in such a State;
(b) nationals of any other State who do not meet the requirements laid
down in (a) in respectof domicile, seator est ablishment , in so faras the Commission, after obtaining the opinion of the Adminis-trative Council referred to in Article 36, has so decided. Such adecision may be made dependent on the other State affordingprotection for varieties of the same botanical taxon to nationals ofall the Member States, which corresponds to the protection affordedpursuant to this Regulation; the Commission shall establish whetherthis condition is met.
2. An application may be filed jointly by two or more such persons.
CHAPTER III
EFFECTS OF COMMUNITY PLANT VARIETY RIGHTS
Article 13
Rights of the holder of a Community plant variety right and
prohibited acts
1. A Community plant variety right shall have the effect that the
holder or holders of the Community plant variety right, hereinafterreferred to as ‘the holder', shall be entitled to effect the acts set out inparagraph 2.
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2. Without prejudice to the provisions of Articles 15 and 16, the
following acts in respect of variety constituents, or harvested material ofthe protected variety, both referred to hereinafter as ‘material', shallrequire the authorization of the holder:
(a) production or reproduction (multiplication);
(b) conditioning for the purpose of propagation;
(c) offering for sale;
(d) selling or other marketing;
(e) exporting from the Community;
(f) importing to the Community;
(g) stocking for any of the purposes mentioned in (a) to (f).
The holder may make his authorization subject to conditions and limita-
tions.
3. The provisions of paragraph 2 shall apply in respectof harvest ed
material only if this was obtained through the unauthorized use ofvariety constituents of the protected variety, and unless the holder hashad reasonable opportunity to exercise his right in relation to the saidvariety constituents.
4. In the implementing rules pursuant to Article 114, it may be
provided that in specific cases the provisions of paragraph 2 of thisArticle shall also apply in respect of products obtained directly frommaterial of the protected variety. They may apply only if such productswere obtained through the unauthorized use of material of the protectedvariety, and unless the holder has had reasonable opportunity to exercisehis right in relation to the said material. To the extent that the provisionsof paragraph 2 apply to products directly obtained, they shall also beconsidered to be ‘material'.
5. The provisions of paragraphs 1 to 4 shall also apply in relation to:
(a) varieties which are essentially derived from the variety in respect of
which the Community plant variety right has been granted, wherethis variety is not itself an essentially derived variety;
(b) varieties which are not distinct in accordance with the provisions of
Article 7 from the protected variety; and
(c) varieties whose production requires the repeated use of the
protected variety.
6. For the purposes of paragraph 5 (a), a variety shall be deemed to
be essentially derived from another variety, referred to hereinafter as‘the initial variety' when:
(a) it is predominantly derived from the initial variety, or from a variety
that is itself predominantly derived from the initial variety;
(b) it is distinct in accordance with the provisions of Article 7 from the
initial variety; and
(c) exceptfor t he differences which resultfrom t he actof derivat ion, it
conforms essentially to the initial variety in the expression of thecharacteristics that results from the genotype or combination ofgenotypes of the initial variety.
7. The implementing rules pursuant to Article 114 may specify
possible acts of derivation which come at least under the provisions ofparagraph 6.
8. Without prejudice to Article 14 and 29, the exercise of the rights
conferred by Community plant variety rights may not violate any provi-sions adopted on the grounds of public morality, public policy or publicsecurity, the protection of health and life of humans, animals or plants,the protection of the environment, the protection of industrial orcommercial property, or the safeguarding of competition, of trade or ofagricultural production.
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Article 14
Derogation from Community plant variety right
1. Notwithstanding Article 13 (2), and for the purposes of safe-
guarding agricultural production, farmers are authorized to use for prop-agating purposes in the field, on their own holding the product of theharvest which they have obtained by planting, on their own holding,propagating material of a variety other than a hybrid or syntheticvariety, which is covered by a Community plant variety right.
2. The provisions of paragraph 1 shall only apply to agricultural
plantspecies of:
(a) Fodder plants:
Cicer arietinum L. — Chickpea milkvetchLupinus luteus L. — Yellow lupinMedicago sativa L. — LucernePisum sativum L. (partim) — Field peaTrifolium alexandrinum L. — Berseem/Egyptian cloverTrifolium resupinatum L. — Persian cloverVicia faba — Field beanVicia sativa L. — Common vetch
and, in the case of Portugal, Lolium multiflorum lam — Italian
rye-grass
(b) Cereals:
Avena sativa — OatsHordeum vulgare L. — BarleyOryza sativa L. — RicePhalaris canariensis L. — Canary grassSecale cereale L. — RyeX Triticosecale Wittm. — TriticaleTriticium aestivum L. emend. Fiori et Paol. — WheatTriticum durum Desf. — Durum wheatTriticum spelta L. — Spelt wheat
(c) Potatoes:
Solanum tuberosum — Potatoes
(d) Oil and fibre plants:
Brassica napus L. (partim) — Swede rapeBrassica rapa L. (partim) — Turnip rapeLinum usitatissimum — linseed with the exclusion of flax.
3. Conditions to give effect to the derogation provided for in para-
graph 1 and to safeguard the legitimate interests of the breeder and ofthe farmer, shall be established, before the entry into force of thisRegulation, in implementing rules pursuant to Article 114, on the basisof the following criteria:
— there shall be no quantitative restriction of the level of the farmer’s
holding to the extent necessary for the requirements of the holding,
— the product of the harvest may be processed for planting, either by
the farmer himself or through services supplied to him, withoutprejudice to certain restrictions which Member States may establishregarding the organization of the processing of the said product ofthe harvest, in particular in order to ensure identity of the productentered for processing with that resulting from processing,
— small farmers shall not be required to pay any remuneration to the
holder; small farmers shall be considered to be:
— in the case of those of the plant species referred to in paragraph
2 of this Article to which Council Regulation (EEC) No 1765/92of 30 June 1992 establishing a support system for producers ofcertain arable crops (
1) applies, farmers who do notgrow plant s
(1) OJ No L 181, 1. 7. 1992, p. 12. Regulation as last amended by Regulation
(EEC) No 1552/93 (OJ No L 154, 25. 6. 1993, p. 19).
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on an area bigger than the area which would be needed to
produce 92 tonnes of cereals; for the calculation of the area,Article 8 (2) of the aforesaid Regulation shall apply,
— in the case of other plant species referred to in paragraph 2 of
this Article, farmers who meet comparable appropriate criteria,
— other farmers shall be required to pay an equitable remuneration to
the holder, which shall be sensibly lower than the amount chargedfor the licensed production of propagating material of the samevariety in the same area; the actual level of this equitable remu-neration may be subject to variation over time, taking into accountthe extent to which use will be made of the derogation provided forin paragraph 1 in respect of the variety concerned,
— monitoring compliance with the provisions of this Article or the
provisions adopted pursuant to this Article shall be a matter ofexclusive responsibility of holders; in organizing that monitoring,they may not provide for assistance from official bodies,
— relevant information shall be provided to the holders on their
request, by farmers and by suppliers of processing services; relevantinformation may equally be provided by official bodies involved inthe monitoring of agricultural production, if such information hasbeen obtained through ordinary performance of their tasks, withoutadditional burden or costs. These provisions are without prejudice,in respect of personal data, to Community and national legislationon the protection of individuals with regard to the processing andfree movementof personal dat a.
Article 15
Limitation of the effects of Community plant variety rights
Limitation of the effects of Community plant variety rights
(a) acts done privately and for non-commercial purposes;
(b) acts done for experimental purposes;
(c) acts done for the purpose of breeding, or discovering and devel-
oping other varieties;
(d) acts referred to in Article 13 (2) to (4), in respect of such other
varieties, except where the provisions of Article 13 (5) apply, orwhere the other variety or the material of this variety comes underthe protection of a property right which does not contain a compar-able provision; and
(e) acts whose prohibition would violate the provisions laid down in
Articles 13 (8), 14 or 29.
Article 16
Exhaustion of Community plant variety rights
The Community plant variety right shall not extend to acts concerning
any material of the protected variety, or of a variety covered by theprovisions of Article 13 (5), which has been disposed of to others by theholder or with his consent, in any part of the Community, or anymaterial derived from the said material, unless such acts:
(a) involve further propagation of the variety in question, except where
such propagation was intended when the material was disposed of;or
(b) involve an export of variety constituents into a third country which
does not protect varieties of the plant genus or species to which thevariety belongs, except where the exported materials is for finalconsumption purposes.
Article 17
Use of variety denominations
1. Any person who, within the territory of the Community, offers or
disposes of to others for commercial purposes variety constituents of aprotected variety, or a variety covered by the provisions of Article 13(5), must use the variety denomination designated pursuant to Article
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63; where it is used in writing, the variety denomination shall be readily
distinguishable and clearly legible. If a trade mark, trade name orsimilar indication is associated with the designated denomination, thisdenomination must be easily recognizable as such.
2. Any person effecting such acts in respect of any other material of
the variety, must inform of that denomination in accordance with otherprovisions in law or if a request is made by an authority, by thepurchaser or by any other person having a legitimate interest.
3. Paragraphs 1 and 2 shall apply even after the termination of the
Community plant variety right.
Article 18
Limitation of the use of variety denominations
1. The holder may notuse any rightgrant ed in respectof a designa-
tion that is identical with the variety denomination to hamper the freeuse of that denomination in connection with the variety, even after thetermination of the Community plant variety right.
2. A third party may use a right granted in respect of a designation
that is identical wih the variety denomination to hamper the free use ofthat denomination only if that right was granted before the varietydenomination was designated pursuant to Article 63.
3. Where a variety is protected by a Community plant variety right
or, in a Member State or in a Member of the International Union for theProtection of New Varieties of Plants by a national property right,neither its designated denomination or any designation which might beconfused with it can be used, within the territory of the Community, inconnection with another variety of the same botanical species or aspecies regarded as related pursuant to the publication made in accord-ance with Article 63 (5), or for material of such variety.
CHAPTER IV
DURATION AND TERMINATION OF COMMUNITY PLANT VARIETY
RIGHTS
Article 19
Duration of Community plant variety rights
1. The term of the Community plant variety right shall run until the
end of the 25th calendar year or, in the case of varieties of vine and treespecies, until the end of the 30th calendar year, following the year ofgrant.
2. The Council, acting by qualified majority on proposal from the
Commission, may, in respectof specific genera or species, provide foran extension of these terms up to a further five years.
3. A Community plant variety right shall lapse before the expiry of
the terms laid down in paragraph 1 or pursuant to paragraph 2, if theholder surrenders it by sending a written declaration to such effect tothe Office, and with effect from the day following the day on which thedeclaration is received by the Office.
Article 20
Nullity of Community plant variety rights
1. The Office shall declare the Community plant variety right null
and void if itis est ablished:
(a) that the conditions laid down in Articles 7 or 10 were not complied
with at the time of the Community plant variety right; or
(b) that where the grant of the Community plant variety right has been
essentially based upon information and documents furnished by theapplicant, the conditions laid down in Articles 8 and 9 were notcomplied with at the time of the grant of the right; or
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(c) that the right has been granted to a person who is not entitled to it,
unless it is transferred to the person who is so entitled.
2. Where the Community plant variety right is declared null and
void, it shall be deemed not to have had, as from the outset, the effectsspecified in this Regulation.
Article 21
Cancellation of Community plant variety rights
1. The Office shall cancel the Community plant variety right with
effect in futurum if it is established that the conditions laid down inArticle 8 or 9 are no longer complied with. If it is established that theseconditions were already no longer complied with from a point in timeprior to cancellation, cancellation may be made effective as from thatjuncture.
2. The Office may cancel a Community plant variety right with
effect in futurum if the holder, after being requested to do so, andwithin a time limit specified by the Office:
(a) has not fulfilled an obligation pursuant to Article 64 (3); or
(b) in the case referred to in Article 66, does not propose another
suitable variety denomination; or
(c) fails to pay such fees as may be payable to keep the Community
plantvariet y rightin force; or
(d) either as the initial holder or as a successor in title as a result of a
transfer pursuant to Article 23, no longer satisfies the conditionslaid down in Articles 12 and 82.
CHAPTER V
COMMUNITY PLANT VARIETY RIGHTS AS OBJECTS OF PROP-
ERTY
Article 22
Assimilation with national laws
1. Save where otherwise provided in Articles 23 to 29, a Community
plantvariet y rightas an objectof propert y shall be regarded in allrespects, and for the entire territory of the Community, as a corre-sponding property right in the Member State in which:
(a) according to the entry in the Register of Community Plant Variety
Rights, the holder was domiciled or had his seat or an establishmenton the relevant date; or
(b) if the conditions laid down in subparagraph (a) are not fulfilled, the
first-mentioned procedural representative of the holder, as indicatedin the said Register, was domiciled or had his seat or an establish-ment on the date of registration.
2. Where the conditions laid down in paragraph 1 are not fulfilled,
the Member State referred to in paragraph 1 shall be the Member Statein which the seat of the Office is located.
3. Where domiciles, seats or establishments in two or more Member
States are entered in respect of the holder or the procedural representa-tives in the Register referred to in paragraph 1, the first-mentioneddomicile or seatshall apply for t he purposes of paragraph 1.
4. Where two or more persons are entered in the Register referred to
in paragraph 1 as joint holders, the relevant holder for the purposes ofapplying paragraph 1 (a) shall be the first joint holder taken in order ofentry in the Register who fulfils the conditions. Where none of the jointholders fulfils the conditions laid down in paragraph 1 (a), paragraph 2shall be applicable.
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Article 23
Transfer
1. A Community plant variety right may be the object of a transfer to
one or more successors in title.
2. Transfer of a Community plant variety right by assignment can be
made only to successors who comply with the conditions laid down inArticle 12 and 82. It shall be made in writing and shall require thesignature of the parties to the contract, except when it is a result of ajudgement or of any other acts terminating court proceedings. Otherwiseitshall be void.
3. Save as otherwise provided in Article 100, a transfer shall have no
bearing on the rights acquired by third parties before the date oftransfer.
4. A transfer shall not take effect for the Office and may not be cited
vis-à-vis third parties unless documentary evidence thereof as provided
for in the implementing rules is provided and until it has been entered inthe Register of Community Plant Variety Rights. A transfer that has notyet been entered in the Register may, however, be cited vis-à-vis third
parties who have acquired rights after the date of transfer but who knewof the transfer at the date on which they acquired those rights.
Article 24
Levy of execution
A Community plant variety right may be levied in execution and be the
subject of provisional, including protective, measures within themeaning of Article 24 of the Convention on Jurisdiction and theEnforcement of Judgments in Civil and Commercial Matters, signed inLugano on 16 September 1988, hereinafter referred to as the ‘LuganoConvention'.
Article 25
Bankruptcy or like proceedings
Until such time as common rules for the Member States in this field
enter into force, the only Member State in which a Community plantvariety right may be involved in bankruptcy or like proceedings shall bethat in which such proceedings are first brought within the meaning ofnational law or of conventions applicable in this field.
Article 26
The application for a Community plant variety right as an object of
property
Articles 22 to 25 shall apply to applications for Community plant
variety rights. Concerning such applications, the references made inthose Articles to the Register of Community Plant Variety Rights shallbe regarded as references to the Register of Application for CommunityPlant Variety Rights.
Article 27
Contractual exploitation rights
1. Community plant variety rights may form in full or in part the
subject of contractually granted exploitation rights. Exploitation rightsmay be exclusive or non-exclusive.
2. The holder may invoke the rights conferred by the Community
plant variety right against a person enjoying the right of exploitationwho contravenes any of the conditions or limitations attached to hisexploitation right pursuant to paragraph 1.
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Article 28
Joint holdership
Articles 22 to 27 shall apply mutatis mutandis in the event of joint
holdership of a Community plant variety right in proportion to therespective share held, where such shares have been determined.
Article 29
Compulsory exploitation right
1. Compulsory exploitation rights shall be granted to one or more
persons by the Office, on application by that person or those persons,but only on grounds of public interest and after consulting the Adminis-trative Council referred to in Article 36.
2. On application by a Member State, by the Commission or by an
organization set up at Community level and registered by the Commis-sion, a compulsory exploitation right may be granted, either to acategory of persons satisfying specific requirements, or to anyone in oneor more Member States or throughout the Community. It may begranted only on grounds of public interest and with the approval of theAdministrative Council.
3. The Office shall, when granting the compulsory exploitation right,
stipulate the type of acts covered and specify the reasonable conditionspertaining thereto as well as the specific requirements referred to inparagraph 2. The reasonable conditions shall take into account theinterests of any holder of plant variety rights who would be affected bythe grant of the compulsory exploitation right. The reasonable condi-tions may include a possible time limitation, the payment of an appro-priate royalty as equitable remuneration to the holder, and may imposecertain obligations on the holder, the fulfilment of which are necessaryto make use of the compulsory exploitation right.
4. On the expiry of each one-year period after the grant of the
compulsory exploitation right and within the aforementioned possibletime limitation, any of the parties to proceedings may request that thedecision on the grant of the compulsory exploitation right be cancelledor amended. The sole grounds for such a requestshall be t hatt hecircumstances determining the decision taken have in the meantimeundergone change.
5. On application, the compulsory exploitation right shall be granted
to the holder in respect of an essentially derived variety if the criteriaset out in paragraph 1 are met. The reasonable conditions referred to inparagraph 3 shall include the payment of an appropriate royalty asequitable remuneration to the holder of the initial variety.
6. The implementing rules pursuant to Article 114 may specify
certain cases as examples of public interest referred to in paragraph 1and moreover lay down details for the implementation of the provisionsof the above paragraphs.
7. Compulsory exploitation rights may not be granted by Member
States in respect of a Community plant variety right.
PART THREE
THE COMMUNITY PLANT VARIETY OFFICE
CHAPTER I
GENERAL PROVISIONS
Article 30
Legal status, sub-offices
1. The Office shall be a body of the Community. It shall have legal
personality.
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2. In each of the Member States, the Office shall enjoy the most
extensive legal capacity accorded to legal persons under their laws. Itmay, in particular, acquire or dispose of movable and immovable prop-erty and may be a party to legal proceedings.
3. The Office shall be represented by its President.4. With the consent of the Administrative Council referred to in
Article 36, the Office may entrust national agencies with the exercise ofspecific administrative functions of the Office or establish its ownsub-offices for that purpose in the Member States, subject to theirconsent.
Article 31
Staff
1. The Staff Regulations of Officials of the European Communities,
the Conditions of Employment of Other Servants of the EuropeanCommunities and the rules adopted jointly by the institutions of theEuropean Communities for purposes of the application of those StaffRegulations and Conditions of Employment shall apply to the staff ofthe Office, without prejudice to the application of Article 47 to themembers of the Board of Appeal.
2. Without prejudice to Article 43, the powers conferred on the
appointing authority by the Staff Regulations, and by the Conditions ofEmployment of Other Servants, shall be exercised by the Office inrespect of its own staff.
Article 32
Privileges and immunities
The Protocol on the Privileges and Immunities of the European
Communities shall apply to the Office.
Article 33
Liability
1. The contractual liability of the Office shall be governed by the law
applicable to the contract in question.
2. The Court of Justice of the European Communities shall have
jurisdiction to give judgment pursuant to any arbitration clausecontained in a contract concluded by the Office.
3. In the case of non-contractual liability, the Office shall, in accord-
ance with the general principles common to the laws of the MemberStates, make good any damage caused by its departments or by itsservants in the performance of their duties.
4. The Court of Justice shall have jurisdiction in disputes relating to
compensation for the damage referred to in paragraph 3.
5. The personal liability of its servants towards the Office shall be
governed by the provisions laid down in the Staff Regulations orConditions of Employment applicable to them.
Article 34
Languages
1. The provisions laid down in Regulation No 1 of 15 April 1958
determining the languages to be used in the European EconomicCommunity (
1), shall apply regarding the Office.
(1) OJ No 17, 6. 10. 1958, p. 385/58. Regulation as last amended by the
1985 Actof Accession.
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2. Applications to the Office, the documents required to process suchapplications and all other papers submitted shall be filed in one of theofficial languages of the European Communities.
3. Parties to proceedings before the Office as specified in the imple-
menting rules pursuant to Article 114, shall be entitled, to conductwritten and oral proceedings in any official language of the EuropeanCommunities with translation and, in the case of hearings, simultaneousinterpretation, at least into any other of the official languages of theEuropean Communities chosen by any other party to proceedings. Theexercise of these rights does not imply specific charges for the parties toproceedings.
4. The translation services required for the functioning of the Office
are in principle provided by the Translation Centre of the Bodies of theUnion.
Article 35
Decisions of the Office
1. Decisions of the Office shall, provided they do not have to be
made by the Board of Appeal pursuant to Article 72, be taken by orunder the authority of the President of the Office.
2. Subject to paragraph 1, decisions pursuant to Articles 20, 21, 29,
59, 61, 62, 63, 66 or 100 (2) shall be taken by a Committee of threemembers of the Office’s staff. The qualifications of the members ofsuch Committee, the powers of individual members in the preparatoryphase of the decisions, the voting conditions and the role of the Pres-ident in respect of such Committee shall be determined in the imple-menting rules pursuant to Article 114. Otherwise, the members of suchCommittee, in making their decisions, shall not be bound by anyinstructions.
3. Decisions of the President, other than those specified in paragraph
2, if not taken by the President, may be taken by a member of theOffice’s staff to whom the power to do so has been delegated pursuantto Article 42 (2) (h).
CHAPTER II
THE ADMINISTRATIVE COUNCIL
Article 36
Creation and powers
1. An Administrative Council is hereby set up, attached to the Office.
In addition to the powers assigned to the Administrative Council byother provisions of this Regulation, or by the provisions referred to inArticles 113 and 114, it shall have the powers in relation to the Officedefined below:
(a) It shall advise on matters for which the Office is responsible, or
issue general guidelines in this respect.
(b) Itshall examine t he managementreportof t he President , and shall
moreover monitor the Office’s activities, on the basis of that exam-ination and any other information obtained.
(c) It shall, on a proposal from the Office, either determine the number
of Committees referred to in Article 35, the work allocation and theduration of their respective function, or issue general guidelines inthis respect.
(d) It may establish rules on working methods of the Office.
(e) It may issue test guidelines pursuant to Article 56 (2).
2. Moreover the Administrative Council:
— may deliver opinions to, and require information from the Office or
the Commission, where it considers that this is necessary,
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— may forward to the Commission, with or without amendments, the
drafts placed before it pursuant to Article 42 (2) (g), or its own draftamendments to this Regulation, to the provisions referred to inArticles 113 and 114 or to any other rules relating to Communityplant variety rights,
— shall be consulted pursuant to Articles 113 (4) and 114 (2),— shall carry out its functions relating the Office’s budget pursuant to
Articles 109, 111 and 112.
Article 37
Composition
1. The Administrative Council shall be composed of one repres-
entative of each Member State and one representative of the Commis-sion and their alternates.
2. The members of the Administrative Council may, subject to the
provisions of its rules of procedure, be assisted by advisers or experts.
Article 38
Chairmanship
1. The Administrative Council shall elect a Chairman and a Deputy
Chairman from among its members. The Deputy Chairman shall ex
officio replace the Chairman in the event of him being prevented from
attending to his duties.
2. The terms of office of the Chairman or Deputy Chairman shall
expire when their respective membership of the Administrative Councilceases. Without prejudice to this provision, the duration of the terms ofoffice of the Chairman or Deputy Chairman shall be three years, unlessanother Chairman or Deputy Chairman have been elected before the endof this period. The terms of office shall be renewable.
Article 39
Meetings
1. Meetings of the Administrative Council shall be convened by its
Chairman.
2 The President of the Office shall take part in the deliberations,
unless the Administrative Council decides otherwise. He shall not havethe right to vote.
3. The Administrative Council shall hold an ordinary meeting once a
year; in addition, it shall meet on the initiative of its Chairman or at therequest of the Commission or of one-third of the Member States.
4. Itshall adoptrules of procedure, and may setup, in accordance
with these rules, Committees placed under its authority.
5. The Administrative Council may invite observers to attend its
meetings.
6. The secretariat for the Administrative Council shall be provided
by the Office.
Article 40
Place of meetings
The Administrative Council shall meet at the seat of the Commission, or
at the location of the Office or of an Examination Office. The detailsshall be determined in the rules of procedure.
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Article 41
Voting
1. The Administrative Council shall take its decisions, other than
those referred to in paragraph 2, by a simple majority of the representa-tives of the Member States.
2. The majority of three quarters of the representatives of the
Member States shall be required for the decisions which the Adminis-trative Council is empowered to take under Articles 12 (1) (b), 29, 36(1) (a), (b), (d) and (e), 43, 47, 109 (3) and 112.
3. Each Member State shall have one vote.4. The decisions of the Administrative Council shall have no binding
force within the meaning of Article 189 of the Treaty.
CHAPTER III
MANAGEMENT OF THE OFFICE
Article 42
Functions and powers of the President
1. The Office shall be managed by the President.2. To this end, the President shall have, in particular, the following
functions and powers:
(a) The President shall take all necessary steps, including the adoption
of internal administrative instructions and the publications ofnotices, to ensure the functioning of the Office in accordance withthe provisions of this Regulation, with those referred to in Articles113 and 114, or with the rules established, or guidelines issued, bythe Administrative Council pursuant to Article 36 (1).
(b) He shall submita managementreportt o t he Commission and
Administrative Council each year.
(c) He shall exercise in respect of the staff the powers laid down in
Article 31 (2).
(d) He shall submit proposals as referred to in Article 36 (1) (c) and 47
(2).
(e) He shall draw up estimates of the revenue and expenditure of the
Office pursuant to Article 109 (1), and shall implement the budgetpursuant to Article 110.
(f) He shall supply information as required by the Administrative
Council pursuant to Article 36 (2), first indent.
(g) He may place before the Administrative Council draft amendments
to this Regulation, to the provisions referred to in Articles 113 and114 or to any other rules relating to Community plant variety rights.
(h) He may delegate his powers to other members of the Office’s staff,
and subject to the provisions referred to in Articles 113 and 114.
3. The President shall be assisted by one or more Vice-Presidents. If
the President is absent or indisposed, the Vice-President or one of theVice-Presidents shall take his place in accordance with the procedurelaid down in the rules established, or the guidelines issued, by theAdministrative Council pursuant to Article 36 (1).
Article 43
Appointment of senior officials
1. The President of the Office shall be appointed by the Council from
a list of candidates which shall be proposed by the Commission afterobtaining the opinion of the Administrative Council. Power to dismissthe President shall lie with the Council, acting on a proposal from theCommission after obtaining the opinion of the Administrative Council.
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2. The term of office of the President shall not exceed five years.
This term of office shall be renewable.
3. The Vice-President or Vice-Presidents of the Office shall be
appointed or dismissed as in paragraphs 1 and 2, after consultation ofthe President.
4. The Council shall exercise disciplinary authority over the officials
referred to in paragraphs 1 and 3.
Article 44
Control of legality
1. The Commission shall control the legality of those acts of the
Presidentin respectof which Communit y law does notprovide for anycontrol on legality by another body, and of the acts of the Adminis-trative Council relating to the Office’s budget.
2. The Commission shall require t hatany unlawful actreferred t o in
paragraph 1 be altered or annulled.
3. Member States, any member of the Administrative Council or any
other persons directly and personally involved may refer to theCommission any act referred to in paragraph 1, whether express orimplied, to examine the legality of that act. Referral shall be made tothe Commission within two months of the day on which the partyconcerned became aware of the act in question. The Commission shalltake and communicate a decision within two months.
CHAPTER IV
THE BOARDS OF APPEAL
Article 45
Establishment and powers
1. There shall be established within the Office one or more Boards of
Appeal.
2. The Board or Boards of Appeal shall be responsible for deciding
on appeals from the decisions referred to in Article 67.
3. The Board or Boards of Appeal shall be convened as necessary.
The number of Boards of Appeal and the work allocation shall bedetermined in the implementing rules pursuant to Article 114.
Article 46
Composition of the Boards of Appeal
1. A Board of Appeal shall consist of a Chairman and two other
members.
2. The Chairman shall select for each case the other members and
their respective alternates from the list of qualified members establishedpursuant to Article 47 (2).
3. Where the Board of Appeal considers that the nature of the appeal
so requires, it may call up to two further members from the aforesaidlistfor t hatcase.
4. The qualifications required for the members of each Board of
Appeal, the powers of individual members in the preparatory phase ofthe decisions and the voting conditions shall be determined in theimplementing rules pursuant to Article 114.
Article 47
Independence of the members of the Boards of Appeal
1. The Chairmen of the Boards of Appeal and their respective alter-
nates shall be appointed by the Council from a list of candidates foreach chairman and each alternate which shall be proposed by the
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Commission after obtaining the opinion of the Administrative Council.
The term of office shall be five years. It shall be renewable.
2. The other members of the Boards of Appeal shall be those
selected pursuant to Article 46 (2), from a list of qualified membersestablished on a proposal from the Office, for a term of five years, bythe Administrative Council. The list shall be established for a term offive years. This shall be renewable for whole or part of the list.
3. The members of the Board of Appeal shall be independent. In
making their decisions they shall not be bound by any instructions.
4. The members of the Boards of Appeal may not be members of the
Committees referred to in Article 35 nor perform any other duties in theOffice. The function of the members of the Boards of Appeal may be apart-time function.
5. The members of the Boards of Appeal may not be removed from
office nor from the list respectively, during the respective term, unlessthere are serious grounds for such removal and the Court of Justice ofthe European Communities, on application by the Commission afterobtaining the opinion of the Administrative Council takes a decision tothis effect.
Article 48
Exclusion and objection
1. Members of the Boards of Appeal may not take part in any appeal
proceedings if they have any personal interest therein, or if they havepreviously been involved as representatives of one of the parties toproceedings, or if they participated in the decision under appeal.
2. If, for one of the reasons mentioned in paragraph 1 or for any
other reason, a member of a Board of Appeal considers that he shouldnot take part in any appeal proceedings, he shall inform the Board ofAppeal accordingly.
3. Members of the Boards of Appeal may be objected to by any party
to the appeal proceedings for one of the reasons mentioned in paragraph1, or if suspected of partiality. An objection shall not be admissible if,while being aware of a reason for objecting, the party to the appealproceedings has taken a procedural step. No objection may be based onthe nationality of members.
4. The Boards of Appeal shall decide as to the action to be taken in
the cases specified in paragraphs 2 and 3 without the participation of themember concerned. For the purposes of taking this decision, themember who withdraws or has been objected to shall be replaced in theBoard of Appeal by his alternate.
PART FOUR
PROCEEDINGS BEFORE THE OFFICE
CHAPTER I
APPLICATIONS
Article 49
Filing of applications
1. An application for a Community plant variety right shall be filed
at the choice of the applicant:
(a) at the Office directly; or
(b) at one of the sub-offices or national agencies, established or
entrusted, pursuant to Article 30 (4), subject to the applicantforwarding an information on this filing to the Office directlywithin two weeks after filing.
Details on the manner in which the information referred to in (b) above
must be forwarded, may be laid down in the implementing rulespursuant to Article 114. The omission of forwarding information on an
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application to the Office pursuant to (b) above, does not affect the
validity of the application if the application has reached the Officewithin one month after filing at the sub-office or national agency.
2. Where the application is filed at one of the national agencies
referred to in paragraph 1 (b), the national agency shall take all steps toforward the application to the Office within two weeks after filing.National agencies may charge the applicant a fee which shall not exceedthe administrative costs of receiving and forwarding the application.
Article 50
Conditions governing applications
1. The application for a Community plant variety right must contain
atleastt he following:
(a) a request for the grant of a Community plant variety right;
(b) identification of the botanical taxon;
(c) information identifying the applicant or, where appropriate, the joint
applicants;
(d) the name of the breeder and an assurance that, to the best of the
applicants knowledge, no further persons have been involved in thebreeding, or discovery and development, of the variety; if theapplicantis nott he breeder, or nott he only breeder, he shallprovide the relevant documentary evidence as to how the entitle-ment to the Community plant variety right came into his possession;
(e) a provisional designation for the variety;
(f) a technical description of the variety;
(g) the geographic origin of the variety;(h) the credentials of any procedural representative;
(i) details of any previous commercialization of the variety;(j) details of any other application made in respect of the variety.
2. Details of the conditions referred to in paragraph 1, including the
provision of further information, may be laid down in the implementingrules pursuant to Article 114.
3. An application shall propose a variety denomination which may
accompany the application.
Article 51
Date of application
The date of application for a Community plant variety right shall be the
date on which a valid application was received by the Office pursuant toArticle 49 (1) (a) or by a sub-office or national agency pursuant toArticle 49 (1) (b), provided it complies with Article 50 (1) and subjectto payment of the fees due pursuant to Article 83 within a time limitspecified by the Office.
Article 52
The right of priority
1. The right of priority of an application shall be determined by the
date of receipt of the application. Where applications have the samedate of application, the priorities thereof shall be determined accordingto the order in which they were received, if this can be established.Otherwise they shall have the same priority.
2. If the applicant or his predecessor in title has already applied for a
property right for the variety in a Member State or in a Member of theInternational Union for the Protection of New Varieties of Plants, andthe date of application is within 12 months of the filing of the earlierapplication, the applicant shall enjoy a right of priority for the earlierapplication as regards the application for the Community plant variety
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right, provided the earlier application still exists on the date of applica-
tion.
3. The right of priority shall have the effect that the date on which
the earlier application was filed shall count as the date of application forthe Community plant variety right for the purposes of Articles 7, 10 and11.
4. Paragraphs 2 and 3 shall also apply in respectof earlier applica-
tions that were filed in another Member State, provided the conditionsset out in Article 12 (1) (b), second sentence, is met regarding this Stateon the date of application for the Community plant variety right.
5. Any claim for a right of priority earlier than that provided for in
paragraph 2 shall lapse if the applicant does not submit to the Officewithin three months of the date of application copies of the earlierapplication that have been certified by the authorities responsible forsuch application. If the earlier application has not been made in one ofthe official languages of the European Communities, the Office mayrequire, in addition, a translation of the earlier application in one ofthese languages.
CHAPTER II
EXAMINATION
Article 53
Formal examination of application
1. The Office shall examine whether:
(a) the application has effectively been filed pursuant to Article 49;
(b) the application complies with the conditions laid down in Article 50
and the conditions laid down in the implementing rules pursuant tothat Article;
(c) where appropriate, a claim for priority complies with the provision
laid down in Article 52 (2), (4) and (5); and
(d) the fees due pursuant to Article 83 have been paid within a time
limitspecified by t he Office.
2. If the application, although complying with the conditions referred
to in Article 51, does not comply with other conditions laid down inArticle 50, the Office shall give the applicant an opportunity to correctany deficiencies that may have been identified.
3. If the application does not comply with the conditions referred to
in Article 51, the Office shall inform the applicant thereof, or, wherethis is not possible, publish the information pursuant to Article 89.
Article 54
Substantive examination
1. The Office shall examine whether the variety may be the object of
a Community plant variety right pursuant to Article 5, whether thevariety is new pursuant to Article 10, whether the applicant is entitled tofile an application pursuant to Article 12 and whether the conditionslaid down in Article 82 are complied with. The Office shall alsoexamine whether the proposed variety denomination is suitable pursuantto Article 63. For such purposes, it may avail itself of the services ofother bodies.
2. The first applicant shall be deemed to be entitled to the
Community plant variety right pursuant to Article 11. This shall notapply if, before a decision on the application is taken, the Office isaware, or itis shown by a final judgmentdelivered wit h regard t o aclaim for entitlement pursuant to Article 98 (4), that entitlement is notor is not solely vested in the first applicant. Where the identity of thesole or other person entitled has been determined, the person or personsmay enter the proceedings as applicant or applicants.
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Article 55
Technical examination
1. Where the Office has not discovered any impediment to the grant
of a Community plant variety right on the basis of the examinationpursuant to Articles 53 and 54, it shall arrange for the technical exam-ination relating to compliance with the conditions laid down in Articles7, 8 and 9 to be carried out by the competent office or offices in at leastone of the Member States entrusted with responsibility for the technicalexamination of varieties of the species concerned by the AdministrativeCouncil, hereafter referred to as the ‘Examination Office or Offices'.
2. Where no Examination Office is available, the Office may, with
the consent of the Administrative Council, entrust other appropriateagencies with responsibility therefore or establish its own sub-officesfor the same purposes. For the purpose of the provisions of this Chapter,such agencies or sub-offices shall be considered as ExaminationOffices. They may avail themselves of facilities made available by theapplicant.
3. The Office shall forward to the Examination Offices copies of the
application as required under the implementing rules pursuant to Article114.
4. The Office shall determine, through general rules or through
requests in individual cases, when, where and in what quantities andqualities the material for the technical examination and referencesamples are to be submitted.
5. Where the applicant makes a claim for priority pursuant to Article
52 (2) or (4), he shall submit the necessary material and any furtherdocuments required within two years of the date of application pursuantto Article 51. If the earlier application is withdrawn or refused beforethe expiry of two years, the Office may require the applicant to submitthe material or any further documents within a specified time limit.
Article 56
The conduct of technical examinations
1. Unless a different manner of technical examination relating to
compliance with the conditions laid down in Articles 7 to 9 has beenarranged, the Examination Offices shall, for the purposes of the tech-nical examination, grow the variety or undertake any other investiga-tions required.
2. The conduct of any technical examinations shall be in accordance
with test guidelines issued by the Administrative Council and anyinstructions given by the Office.
3. For the purposes of the technical examination, the Examination
Offices may, with the approval of the Office, avail themselves of theservices of other technically qualified bodies and take into account theavailable findings of such bodies.
4. Each Examination Office shall begin the technical examination,
unless the Office has otherwise provided, no later than on the date onwhich a technical examination would have begun on the basis of anapplication for a national property right filed on the date on which theapplication sent by the Office was received by the Examination Office.
5. In the case of Article 55 (5), each Examination Office shall begin
the technical examination, unless the Office has otherwise provided, nolater than on the date on which an examination would have begun onthe basis of an application for a national property right, provided thenecessary material and any further documents required were submittedatt hatdat e.
6. The Administrative Council may determine that the technical
examination for varieties of vine and tree species may begin at a laterdate.
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Article 57
Examination reports
1. The Examination Office shall, at the request of the Office or if it
deems the results of the technical examination to be adequate to eval-uate the variety, send the Office an examination report, and, where itconsiders that the conditions laid down in Articles 7 to 9 are compliedwith, a description of the variety.
2. The Office shall communicate the results of the technical exami-
nations and the variety description to the applicant and shall give himan opportunity to comment thereon.
3. Where the Office does not consider the examination report to
constitute a sufficient basis for decision, it may provide of its ownmotion, after consultation of the applicant, or on request of the applicantfor complementary examination. For the purposes of assessment of theresults, any complementary examination carried out until a decisiontaken pursuant to Articles 61 and 62 becomes final shall be consideredto be part of the examination referred to in Article 56 (1).
4. The results of the technical examination shall be subject to the
exclusive rights of disposal of the Office and may only otherwise beused by the Examination Offices in so far as this is approved by theOffice.
Article 58
Costs of technical examinations
The Office shall pay the Examination Offices a fee in accordance with
the implementing rules pursuant to Article 114.
Article 59
Objections to grant of right
1. Any person may lodge with the Office a written objection to the
grant of a Community plant variety right.
2. Objectors shall be party to the proceedings for grant of the
Community plant variety right in addition to the applicant. Withoutprejudice to Article 88, objectors shall have access to the documents,including the results of the technical examination and the varietydescription as referred to in Article 57 (2).
3. Objections may be based only on the contention that:
(a) the conditions laid down in Articles 7 to 11 are not complied with;
(b) there is an impediment under Article 63 (3) or (4) to a proposed
variety denomination.
4. Objections may be lodged:
(a) at any time after the application and prior to a decision pursuant to
Articles 61 or 62, in the case of paragraph 3 (a) hereof;
(b) within three months of the publication of the proposed variety
denomination pursuant to Article 89, in the case of objections underparagraph 3 (b) hereof.
5. The decisions on objections may be taken together with the deci-
sions pursuant to Articles 61, 62 or 63.
Article 60
Priority of a new application in the case of objections
Where an objection on the grounds that the conditions laid down in
Article 11 are not met leads to the withdrawal or refusal of the applica-tion for a Community plant variety right and if the objector files anapplication for a Community plant variety right within one monthfollowing the withdrawal or within one month of the date on which therefusal becomes final in respect of the same variety, he may require that
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the date of the withdrawn or refused application be deemed to be the
date of his application.
CHAPTER III
DECISIONS
Article 61
Refusal
1. The Office shall refuse applications for a Community plant variety
right if and as soon as it establishes that the applicant:
(a) has not remedied any deficiencies within the meaning of Article 53
which he was given an opportunity to correct within the time limitnotified to him;
(b) has not complied with a rule or request pursuant to Article 55 (4) or
(5) within the time limit laid down, unless the Office has consentedto non-submission; or
(c) has not proposed a variety denomination which is suitable pursuant
to Article 63.
2. The Office shall also refuse applications for a Community plant
variety right if:
(a) it establishes that the conditions it is required to verify pursuant to
Article 54 have not been fulfilled; or
(b) it reaches the opinion on the basis of the examination reports
pursuant to Article 57, that the conditions laid down in Articles 7, 8and 9 have notbeen fulfilled.
Article 62
Grant
If the Office is of the opinion that the findings of the examination are
sufficient to decide on the application and there are no impedimentspursuant to Articles 59 and 61, it shall grant the Community plantvariety right. The decision shall include an official description of thevariety.
Article 63
Variety denomination
1 Where a Community plant variety right is granted, the Office shall
approve, for the variety in question, the variety denomination proposedby the applicant pursuant to Article 50 (3), if it considers, on the basisof the examination made pursuant to the second sentence of Article 54(1), that this denomination is suitable.
2. A variety denomination is suitable, if there is no impediment
pursuant to paragraphs 3 or 4 of this Article.
3. There is an impediment for the designation of a variety denomina-
tion where:
(a) its use in the territory of the Community is precluded by the prior
right of a third party;
(b) it may commonly cause its users difficulties as regards recognition
or reproduction;
(c) it is identical or may be confused with a variety denomination under
which another variety of the same or of a closely related species isentered in an official register of plant varieties or under whichmaterial of another variety has been marketed in a Member State orin a Member of the International Unit for the Protection of NewVarieties of Plants, unless the other variety no longer remains inexistence and its denomination has acquired no special significance;
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(d) it is identical or may be confused with other designations which are
commonly used for the marketing of goods or which have to bekept free under other legislation;
(e) it is liable to give offence in one of the Member States or is
contrary to public policy;
(f) it is liable to mislead or to cause confusion concerning the charac-
teristics, the value or the identity of the variety, or the identity ofthe breeder or any other party to proceedings.
4. There is another impediment where, in the case of a variety which
has already been entered:
(a) in one of the Member States; or
(b) in a Member of the International Union for the Protection of New
Varieties of Plants; or
(c) in another State for which it has been established in a Community
act that varieties are evaluated there under rules which are equiva-lent to those laid down in the Directives on common catalogues;
in an official register of plant varieties or material thereof and has been
marketed there for commercial purposes, and the proposed varietydenomination differs from that which has been registered or used there,unless the latter one is the object of an impediment pursuant to para-graph 3.
5. The Office shall publish the species which it considers ‘closely
related' within the meaning of paragraph 3 (c).
CHAPTER IV
THE MAINTENANCE OF COMMUNITY PLANT VARIETY RIGHTS
Article 64
Technical verification
1. The Office shall verify the continuing existence unaltered of the
protected varieties.
2. For this purpose, a technical verification shall be carried out
pursuant to Articles 55 and 56.
3. The holder shall be required to provide all the information neces-
sary to assess the continuing existence unaltered of the variety to theOffice and to the Examination Offices to which technical verification ofthe variety has been entrusted. He shall be required, in accordance withthe instructions given by the Office, to submit material of the varietyand to permit to verify whether appropriate measures have been taken toensure the continuing existence unaltered of the variety.
Article 65
Report on the technical verification
1. At the request of the Office, or if it establishes that the variety is
not uniform or stable, the Examination Office entrusted with the tech-nical verification shall send the Office a report on its findings.
2. If any deficiencies pursuantt o paragraph 1 have been found
during the technical verification, the Office shall inform the holder ofthe results of the technical verification and shall give him an oppor-tunity to comment thereon.
Article 66
Amendment of the variety denomination
1. The Office shall amend a variety denomination designated
pursuant to Article 63 if it establishes that the denomination does notsatisfy, or no longer satisfies, the conditions laid down in Article 63 andin the event of a prior conflicting right of a third party, if the holderagrees to the amendment or the holder or any other person required to
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use the variety denomination has been prohibited, by a final judgment,for this reason from using the variety denomination.
2. The Office shall give the holder an opportunity to propose an
amended variety denomination and shall proceed in accordance withArticle 63.
3. Objections may be lodged against the proposed amended variety
denomination in accordance with Article 59 (3) (b).
CHAPTER V
APPEALS
Article 67
Decisions subject to appeal
1. An appeal shall lie from decisions of the Office which have been
taken pursuant to Articles 20, 21, 59, 61, 62, 63 and 66, as well as ondecisions related to fees pursuant to Article 83, to costs pursuant toArticle 85, to the entering or deletion of information in the Registerpursuant to Article 87 and to the public inspection pursuant to Article88.
2. An appeal lodged pursuantt o paragraph 1 shall have suspensory
effect. The Office may, however, if it considers that circumstances sorequire, order that the contested decision not be suspended.
3. An appeal may lie from decisions of the Office pursuant to
Articles 29 and 100 (2), unless a ►
M1directact ion ◄is
►M1brought◄pursuant to Article 74. The appeal shall not have
suspensory effect.
4. An appeal againsta decision which does nott erminat e proceed-
ings as regards one of the parties may only be made in conjunction withan appeal against the final decision, unless the decision provides forseparate appeal.
Article 68
Persons entitled to appeal and to be parties to appeal proceedingsAny natural or legal person may appeal, subject to Article 82, against a
decision, addressed to that person, or against a decision which, althoughin the form of a decision addressed to another person, is of direct andindividual concern to the former. The parties to proceedings may, andthe Office shall, be party to the appeal proceedings.
Article 69
Time limit and form
Notice of appeal shall be filed in writing at the Office within two
months of the service of the decision where addressed to the appealingperson, or, in the absence thereof, within two months of the publicationof the decision, and a written statement setting out the grounds ofappeal shall be filed within four months after the aforesaid service orpublication.
Article 70
Interlocutory revision
1. If the body of the Office which has prepared the decision
considers the appeal to be admissible and well founded, the Office shallrectify the decision. This shall not apply where the appellant is opposedby another party to the appeal proceedings.
2. If the decision is not rectified within one month after receipt of the
statement of grounds, for the appeal, the Office shall forthwith:
— decide whether it will take an action pursuant to Article 67 (2),
second sentence, and
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— remit the appeal to the Board of Appeal.
Article 71
Examination of appeals
1. If the appeal is admissible, the Board of Appeal shall examine
whether the appeal is well-founded.
2. When examining the appeal, the Board of Appeal shall as often as
necessary invite the parties to the appeal proceedings to file observa-tions on notifications issued by itself or on communications from theother parties to the appeal proceedings within specified time limits.Parties to the appeal proceedings shall be entitled to make oral represen-tations.
Article 72
Decision on appeal
The Board of Appeal shall decide on the appeal on the basis of the
examination carried out pursuant to Article 71. The Board of Appealmay exercise any power which lies within the competence of the Office,or it may remit the case to the competent body of the Office for furtheraction. The latter one shall, in so far as the facts are the same, be boundby theratio decidendi of the Board of Appeal.
▼
M1
Article 73
Actions against decisions of the Boards of Appeal
1. Actions may be brought before the Court of Justice against deci-
sions of the Boards of Appeal on appeals.
2. The action may be brought on grounds of lack of competence,
infringement of an essential procedural requirement, infringement of theTreaty, of this Regulation or of any rule of law relating to theirapplication, or misuse of power.
3. The Court of Justice shall have jurisdiction to annul or to alter the
contested decision.
4. The action shall be open to any party to appeal proceedings which
has been unsuccessful, in whole or in part, in its submissions.
5. The action shall be brought before the Court of Justice within two
months of the date of service of the decision of the Board of Appeal.
6. The Office shall be required to take the necessary measures to
comply with the judgment of the Court of Justice.
▼
B
Article 74
▼M1
Direct action
▼B
1.►M1A direct action may be brought before the Court of Justice
against◄decisions of the Office pursuant to Articles 29 and 100 (2).
2. The provisions laid down in Article 73 shall apply mutatis
mutandis .
CHAPTER VI
MISCELLANEOUS CONDITIONS GOVERNING PROCEEDINGS
Article 75
Statement of grounds on which decisions are based, right of audi-
ence
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Decisions of the Office shall be accompanied by statements of thegrounds on which they are based. They shall be based only on groundsor evidence on which the parties to proceedings have had an oppor-tunity to present their comments orally or in writing.
Article 76
Examination of the facts by the Office of its own motion
In proceedings before it the Office shall make investigations on the
facts of its own motion, to the extent that they come under the exam-ination pursuant to Articles 54 and 55. It shall disregard facts or itemsof evidence which have not been submitted within the time limit set bythe Office.
Article 77
Oral proceedings
1. Oral proceedings shall be held either on the initiative of the Office
itself or at the request of any of the parties to proceedings.
2. Without prejudice to paragraph 3, oral proceedings before the
Office shall notbe public.
3. Oral proceedings before the Board of Appeal including delivery of
the decision, shall be public in so far as the Board of Appeal beforewhich the proceedings are taking place does not decide otherwise incircumstances where serious and unwarranted disadvantages could arisefrom admitting the public, particularly for any of the parties to theappeal proceedings.
Article 78
Taking of evidence
1. In any proceedings before the Office, the means of giving or
obtaining evidence may include the following:
(a) hearing the parties to proceedings;
(b) requests for information;
(c) the production of documents or other evidence;
(d) hearing the witnesses;
(e) opinions by experts;
(f) inspection;
(g) sworn affidavits.
2. Where the Office decides through a collective body, that body
may commission one of its members to examine the evidence adduced.
3. If the Office considers it necessary that a party to proceedings,
witness or expert give evidence orally, it shall either:
(a) issue a summons requiring the relevant person to appear before it;
or
(b) request the competent judicial or other authority in the country of
domicile of the relevant person to take the evidence as provided forin Article 91 (2).
4. A party to proceedings, witness or expert who is summoned
before the Office may request it to allow his evidence to be heard by thecompetent judicial or other authority in his country of domicile. Onreceipt of such a request or in the case that no reaction was given to thesummons, the Office may, in accordance with Article 91 (2), request thecompetent judicial or other authority to hear the evidence of that person.
5. If a party to proceedings, witness or expert gives evidence before
the Office, the Office may, if it considers it advisable that the evidencebe given under oath or otherwise in binding form, request the competentjudicial or other authority in the country of domicile of the relevantperson to hear his evidence under the requisite conditions.
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6. When the Office requests a competent judicial or other authority
to take evidence, it may request it to take the evidence in binding formand to permit a member of the Office to attend the hearing and questionthe party to proceedings, witness or expert either through that judicial orother authority or directly.
Article 79
Service
The Office shall of its own motion effect service of all decisions and
summonses, and of notifications and communications, from which atime limit is reckoned, or which are required to be served either inpursuance of other provisions of this Regulation or by provisionsadopted pursuant to this Regulation or by order of the President of theOffice. Service may be effected through the competent variety offices ofthe Member States.
Article 80
Restitutio in integrum
1. Where, in spite of having taken all due care in the particular
circumstances, the applicant for a Community plant variety right or theholder or any other party to proceedings before the Office has beenunable to observe a time limit vis-à-vis the Office, his rights shall, upon
application, be restored if his failure to respect the time limit hasresulted directly, by virtue of this Regulation, in the loss of any right ormeans of redress.
2. Applications shall be filed in writing within two months after the
cause of non-compliance when the time limit has ceased to operate. Theact omitted shall be completed within this period. Applications shall beadmissible only within the period of one year following the expiry ofthe time limit which has not been observed.
3. An application shall be accompanied by a statement of the
grounds on which it is based and the facts on which it relies.
4. The provisions of this Article shall not apply to the time limits
referred to in paragraph 2 nor to the time limits specified in Article 52(2), (4) and (5).
5. Any person who, in a Member State, has in good faith used or
made effective and genuine arrangements to use a variety which is thesubjectof a published applicat ion for grantof a Communit y plantvariety right, or of a Community plant variety right that has beengranted, in the course of a period between the loss of rights pursuant toparagraph 1 in respect of the application or of a Community plantvariety right that has been granted and the restoration of those rights,may without payment continue such use in the course of his business orfor the needs thereof.
Article 81
General principles
1. In the absence of procedural provisions in this Regulation or in
provisions adopted pursuant to this Regulation, the Office shall applythe principles of procedural law which are generally recognized in theMember States.
2. Article 48 shall apply mutatis mutandis to the staff of the Office in
so far as it is involved in decisions of the kind referred to in Article 67,and to the staff of the Examination Offices, in so far as it participates inmeasures for the preparation of such decisions.
Article 82
Procedural representative
Persons who are notdomiciled or do nothave a seator an est ablishment
within the territory of the Community may participate as party toproceedings before the Office only if they have designated a procedural
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representative who is domiciled or has his seat or an establishment
within the territory of the Community.
CHAPTER VII
FEES, SETTLEMENT OF COSTS
Article 83
Fees
1. The Office shall charge fees for its official acts provided for under
this Regulation as well as for each year of the duration of a Communityplant variety right, pursuant to the fees regulations adopted in accord-ance with Article 113.
2. If fees due in respect of the official acts set out in Article 113 (2)
or of other official acts referred to in the fees regulations, which areonly to be carried out on application, are not paid, the application shallbe deemed not to have been filled or the appeal not to have been lodgedif the acts necessary for the payment of the fees have not been effectedwithin one month of the date on which the Office served a new requestfor payment of fees and indicated in so doing these consequences offailure to pay.
3. If certain information provided by the applicant for grant of a
Community plant variety right can only be verified by a technicalexamination which goes beyond the framework established for thetechnical examination of varieties of the taxon concerned, the fees forthe technical examination may be increased, after having heard theperson liable to pay the fees, up to the amount of the expenditureactually incurred.
4. In the case of a successful appeal, the appeal fees or, in case of a
partial success, the corresponding part of the appeal fees, shall berefunded. However, the refund can be fully or partly refused if thesuccess of the appeal is based on facts which were not available at thetime of the original decision.
Article 84
Termination of financial obligations
1. The Office’s rightt o require paymentof fees shall lapse aft er four
years from the end of the calender year in which the fees became duefor payment.
2. Rights against the Office for the refunding of fees or of sums
overcharged by the Office shall lapse after four years from the end ofthe calendar year in which the rights arose.
3. A requestfor paymentof a fee shall have t he effectof int errupt ing
the time limit specified in paragraph 1, and a written and reasoned claimfor refund shall have the effect of interrupting the time limit specified inparagraph 2. After interruption the time limit shall begin to run againimmediately and shall terminate at the latest six years after the end ofthe calendar year in which it originally commenced, unless judicialproceedings to enforce the right have been instituted in the meantime; inthat case the time limit shall end not earlier than one year after thejudgment has acquired the authority of a final decision.
Article 85
Apportionment of costs
1. The losing party to proceedings for revocation or cancellation of a
Community plant variety right, or to appeal proceedings shall bear thecosts incurred by the other party to proceedings as well as all costsincurred by him essential to the proceedings, including travel andsubsistence and the remuneration of an agent, adviser or advocate,within the limits of the scales set for each category of costs under theconditions laid down in the implementing rules pursuant to Article 114.
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2. However, where each party to proceedings succeeds on some andfails on other heads, or if reasons of equity so dictate, the Office orBoard of Appeal shall decide a differentapport ionmentof cost s.
3. The party to proceedings who terminates the proceedings by with-
drawing the application for a Community plant variety right, theapplication for revocation or cancellation of rights, or the appeal, or bysurrendering the Community plant variety rights, shall bear the costsincurred by the other party to proceedings as stipulated in paragraphs 1and 2.
4. Where the parties to proceedings conclude before the Office, or
Board of Appeal a settlement of costs differing from that provided forin the preceding paragraphs, note shall be taken of that agreement.
5. On request, the Office or Board of Appeal shall determine the
amount of the costs to be paid pursuant to the preceding paragraphs.
Article 86
Enforcement of decisions which determine the amount of costs
1. Final decisions of the Office which determine the amount of costs
shall be enforceable.
2. Enforcementshall be governed by t he rules of civil procedure
applicable in the Member State in which it takes place. Subject only toverification that the relevant document is authentic, the enforcementclause or endorsement shall be appended by the national authorityappointed for that purpose by the Government of each Member State;the Governments shall inform the Office and the Court of Justice of theEuropean Communities of the identity of each such national authority.
3. When, upon application by the party seeking enforcement, these
formalities have been completed, it shall be entitled to proceed toendorsement under national law by bringing the matter directly beforethe competent body.
4. Enforcementshall notbe suspended exceptby decision of t he
Court of Justice of the European Communities. Control as to the regu-larity of enforcement measures shall, however, reside with the nationalcourts.
CHAPTER VIII
REGISTERS
Article 87
Establishment of the Registers
1. The Office shall keep a Register of Applications for Community
Plant Variety Rights which shall contain the following particulars:
(a) applications for a Community plant variety right together with a
statement of the taxon and the provisional designation of thevariety, the date of application and the name and address of theapplicant, of the breeder and of any procedural representativeconcerned;
(b) any cases of termination of proceedings concerning applications for
a Community plant variety right together with the information setoutin subparagraph (a);
(c) proposals for variety denominations;
(d) changes in the identity of the applicant or his procedural repres-
entative;
(e) on request, any levy of execution as referred to in Articles 24 and
26.
2. The Office shall keep a Register of Community Plant Variety
Rights wherein, after grant of a Community plant variety right, thefollowing particulars shall be entered:
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(a) the species and variety denomination of the variety;
(b) the official description of the variety or a reference to documents in
the Office’s possession in which the official description of thevariety is contained as integrating part of the Register;
(c) in the case of varieties for which material with specific components
has to be used repeatedly for the production of material, a referenceto such components;
(d) the name and address of the holder, of the breeder and of any
procedural representative concerned;
(e) the date on which the Community plant variety right begins and
ends, together with the reasons for the termination of right;
(f) on request, any contractual exclusive exploitation right or compul-
sory exploitation right, including the name and address of theperson enjoying the right of exploitation;
(g) on request, any levy of execution as referred to in Article 24;(h) where the holder of an initial variety and the breeder of a variety
essentially derived from the initial variety both so request, theidentification of the varieties as initial and essentially derivedincluding the variety denominations and the names of the partiesconcerned. A request from one of the parties concerned only shallsuffice if he has obtained either a non-contentious acknowledge-ment by the other party pursuant to Article 99 or a final decision ora final judgment pursuant to the provisions of this Regulation whichcontain an identification of the varieties concerned as initial andessentially derived.
3. Any other particular or any condition for the entering in both
Registers may be specified in the implementing rules pursuant to Article114.
4. The Office may of its own motion and upon consultation with the
holder adapt the official variety description in respect of the number andtype of characteristics or of the specified expressions of those character-istics, when necessary, in the light of the current principles governingthe description of varieties of the taxon concerned, in order to render thedescription of the variety comparable with the descriptions of othervarieties of the taxon concerned.
Article 88
Public inspection
1. The Registers mentioned in Article 87 shall be open to public
inspection.
2. In case of a legitimate interest, the following shall be open to
public inspection, in accordance with the conditions set up in theimplementing rules pursuant to Article 114:
(a) documents relating to applications for grant of a Community plant
variety right;
(b) documents relating to Community plant variety rights already
granted;
(c) the growing of varieties for the purposes of their technical exam-
ination;
(d) the growing of varieties for the purpose of verifying their
continuing existence.
3. In the case of varieties for which material with specific compo-
nents has to be used repeatedly for the production of material, at therequest of the applicant for a Community plant variety right, all datarelating to components, including their cultivation, shall be withheldfrom inspection. Such a request for withholding from inspection maynot be filed once the decision on the application for grant of aCommunity plant variety right has been taken.
4. Materials submitted or obtained in connection with examinations
under Articles 55 (4), 56 and 64 may not be given to other parties bythe competent authorities under this Regulation unless the person enti-
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tled gives his consent or such transfer is required in connection with the
cooperation covered by this Regulation for the purposes of the exam-ination or by virtue of legal provisions.
Article 89
Periodical publications
The Office shall at least every two months, issue a publication
containing the information entered into the Registers pursuant to Article87 (1) and (2) (a), (d), (e), (f), (g) and (h), and notyetpublished. TheOffice shall also publish an annual report, containing information whicht he Office regards as expedient , butatleasta listof valid Communit yplant variety rights, their holders, the dates of grant and expiry and theapproved variety denominations. Details of these publications shall bespecified by the Administrative Council.
Article 90
Exchange of information and of publications
1. The Office and the competent variety offices of the Member States
shall, on request and without prejudice to the conditions set up for thesending of results of technical examinations, dispatch to each other fortheir own use, free of charge, one or more copies of their respectivepublications and any other useful information relating to property rightsapplied for or granted.
2. The data referred to in Article 88 (3) shall be excluded from
information, unless:
(a) the information is necessary for the conduct of the examinations
pursuant to Articles 55 and 64; or
(b) the applicant for a Community plant variety right or the holder
gives his consent.
Article 91
Administrative and legal cooperation
1. Unless otherwise provided in this Regulation or in national law,
the Office, Examination Offices referred to in Article 55 (1) and thecourts or authorities of the Member States shall on request give assis-tance to each other by communicating information or opening filesrelated to the variety, and samples or growing thereof for inspection.Where the Office and the Examination Offices lay files, samples orgrowing thereof open to inspection by courts or public prosecutors’offices, the inspection shall not be subject to the restrictions laid downin Article 88, and the inspection given by the Examination Offices shallnot be subject to a decision of the Office pursuant to that Article.
2. Upon receipt of letters rogatory from the Office, the courts or
other competent authorities of the Member States shall undertake onbehalf of that Office and within the limits of their jurisdiction, anynecessary enquiries or other related measures.
PART FIVE
IMPACT ON OTHER LAWS
Article 92
Cumulative protection prohibited
1. Any variety which is the subject matter of a Community plant
variety right shall not be the subject of a national plant variety right orany patent for that variety. Any rights granted contrary to the firstsentence shall be ineffective.
2. Where the holder has been granted another right as referred to in
paragraph 1 for the same variety prior to grant of the Community plantvariety right, he shall be unable to invoke the rights conferred by such
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protection for the variety for as long as the Community plant variety
rightremains effect ive.
Article 93
Application of national law
Claims under Community plant variety rights shall be subject to limita-
tions imposed by the law of the Member States only as expresslyreferred to in this Regulation.
PART SIX
CIVIL LAW CLAIMS, INFRINGEMENTS, JURISDICTION
Article 94
Infringement
1. Whosoever:
(a) effects one of the acts set out in Article 13 (2) without being
entitled to do so, in respect of a variety for which a Communityplantvariet y righthas been grant ed; or
(b) omits the correct usage of a variety denomination as referred to in
Article 17 (1) or omits the relevant information as referred to inArticle 17 (2); or
(c) contrary to Article 18 (3) uses the variety denomination of a variety
for which a Community plant variety right has been granted or adesignation that may be confused with it;
may be sued by the holder to enjoin such infringement or to pay
reasonable compensation or both.
2. Whosoever acts intentionally or negligently shall moreover be
liable to compensate the holder for any further damage resulting fromthe act in question. In cases of slight negligence, such claims may bereduced according to the degree of such slight negligence, but nothowever to the extent that they are less than the advantage derivedtherefrom by the person who committed the infringement.
Article 95
Acts prior to grant of Community plant variety rights
The holder may require reasonable compensation from any person who
has, in the time between publication of the application for a Communityplantvariet y rightand grantt hereof, effect ed an actt hathe would beprohibited from performing subsequent thereto.
Article 96
Prescription
Claims pursuant to Articles 94 and 95 shall be time barred after three
years from the time at which the Community plant variety right hasfinally been granted and the holder has knowledge of the act and of theidentity of the party liable or, in the absence of such knowledge, after30 years from the termination of the act concerned.
Article 97
Supplementary application of national law regarding infringement1. Where the party liable pursuant to Article 94 has, by virtue of the
infringement, made any gain at the expense of the holder or of a personentitled to exploitation rights, the courts competent pursuant to Articles101 or 102 shall apply their national law, including their private inter-national law, as regards restitution.
2. Paragraph 1 shall also apply as regards other claims that may arise
in respect of the performance or omission of acts pursuant to Article 95
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in the time between publication of the application for grant of aCommunity plant variety right and the disposal of the request.
3. In all other respects the effects of Community plant variety rights
shall be determined solely in accordance with this Regulation.
Article 98
Claiming entitlement to a Community plant variety right
1. If a Community plant variety right has been granted to a person
who is not entitled to it under Article 11, the person entitled to it may,without prejudice to any other remedy which may be open to him underthe laws of the Member States, claim to have the Community plantvariety right transferred to him.
2. Where a person ist entitled to only part of a Community plant
variety right, that person may, in accordance with paragraph 1, claim tobe made a jointholder.
3. Claims pursuantt o paragraphs 1 and 2 may be invoked only
within a period of up to five years of publication of the grant of theCommunity plant variety right. This provision shall not apply if theholder knew, at the time it was granted to or acquired by him, that hewas not entitled to such rights or that entitlement thereto was not vestedsolely in him.
4. The person entitled shall be eligible mutatis mutandis to pursue
claims pursuant to paragraphs 1 and 2 in respect of an application forgrantof a Communit y plantvariet y rightfiled by a person who was notentitled to it or whom the entitlement was not vested solely.
Article 99
Obtaining identification of a variety
The holder of an initial variety and the breeder of a variety essentially
derived from the initial variety shall be entitled to obtain an acknowl-edgement of the identification of the varieties concerned as initial andessentially derived.
Article 100
Consequences of a change in holdership of a Community plant
variety right
1. In the event of a complete change in the holdership of a
Community plant variety right in consequence of a final judgmentdelivered pursuant to Articles 101 or 102 for the purposes of claimingentitlement under Article 98 (1), any exploitation or other rights shalllapse with the entry of the person entitled in the Register of CommunityPlant Variety Rights.
2. Where the holder or a person enjoying the right of exploitation has
effected one of the acts set out in Article 13 (2) or has made effectiveand genuine arrangements to do so prior to the commencement of theproceedings pursuant to Articles 101 or 102, he may continue orperform such acts provided he requests a non-exclusive exploitationright from the new holder entered in the Register of Community PlantVariety Rights. Such requests must be made within the time limit laiddown in the implementing rules. The exploitation right may be grantedby the Office in the absence of an agreement between the parties.Article 29 (3) to (7) shall apply mutatis mutandis .
3. Paragraph 2 shall notapply where t he holder or persons enjoying
the right of exploitation acted in bad faith when they effected the acts orbegan to make the arrangements.
Article 101
Jurisdiction and procedure in legal actions relating to civil law
claims
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1. The Lugano Convention as well as the complementary provisions
of this Article and of Articles 102 to 106 of this Regulation shall applyto proceedings relating to actions in respect of the claims referred to inArticles 94 to 100.
2. Proceedings of the type referred to in paragraph 1 shall be brought
in the courts:
(a) of the Member State or another Contracting Party to the Lugano
Convention in which the defendant is domiciled or has his seat or,in the absence of such, has an establishment; or
(b) if this condition is not met in any of the Member States or
Contracting Parties, of the Member State in which the plaintiff isdomiciled or has his seat or, in the absence of such, has an estab-lishment; or
(c) if this condition is also not met in any of the Member States, of the
Member States in which the seat of the Office is located.
The competent courts shall have jurisdiction in respect of infringements
alleged to have been committed in any of the Member States.
3. Proceedings relating to actions in respect of claims for infringe-
ment may also be brought in the courts for the place where the harmfuleventoccured. In such cases, t he courtshall have jurisdict ion only inrespect of infringements alleged to have been committed in the territoryof the Member State to which it belongs.
4. The legal processes and the competent courts shall be those that
operate under the laws of the State determined pursuant to paragraphs 2or 3.
Article 102
Supplementary provisions
1. Actions for claiming entitlement pursuant to Article 98 of this
Regulation shall not be considered to fall under the provisions of Article5 (3) and (4) of the Lugano Convention.
2. Notwithstanding Article 101 of this Regulation, Articles 5 (1), 17
and 18 of the Lugano Convention shall apply.
3. For the purposes of applying Articles 101 and 102 of this Regula-
tion, the domicile or seat of a party shall be determined pursuant toArticles 52 and 53 of the Lugano Convention.
Article 103
Rules of procedure applicable
Where jurisdiction lies with national courts pursuant to Articles 101 and
102, the rules of procedure of the relevant State governing the sametype of action relating to corresponding national property rights shallapply without prejudice to Articles 104 and 105.
Article 104
Entitlement to bring an action for infringement
1. Actions for infringement may be brought by the holder. Persons
enjoying exploitation rights may bring such actions unless that has beenexpressly excluded by agreement with the holder in the case of anexclusive exploitation right or by the Office pursuant to Articles 29 or100 (2).
2. Any person enjoying exploitation rights shall, for the purpose of
obtaining compensation for damage suffered by him, be entitled tointervene in an infringement action brought by the holder.
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Article 105
Obligation of national courts or other bodies
A national court or other body hearing an action relating to a
Community plant variety right shall treat the Community plant varietyrightas valid.
Article 106
Stay of proceedings
1. Where an action relates to claims pursuant to Article 98 (4) and
the decision depends upon the protectability of the variety pursuant toArticle 6, this decision may not be given before the Office has decidedon the application for a Community plant variety right.
2. Where an action relates to a Community plant variety right that
has been granted and in respect of which proceedings for revocation orcancellation pursuant to Articles 20 or 21 have been initiated, theproceedings may be stayed in so far as the decision depends upon thevalidity of the Community plant variety right.
Article 107
Penalties for infringement of Community plant variety rights
Member States shall take all appropriate measures to ensure that the
same provisions are made applicable to penalize infringements ofCommunity plant variety rights as apply in the matter of infringementsof corresponding national rights.
PART SEVEN
BUDGET, FINANCIAL CONTROL, COMMUNITY IMPLE-
MENTING RULES
Article 108
Budget
1. Estimates of all the Office’s revenue and expenditure shall be
prepared for each financial year and shall be shown in the Office’sbudget, and each financial year shall correspond with the calendar year.
2. The revenue and expenditure shown in the budget shall be in
balance.
3. Revenue shall comprise, without prejudice to other types of
income, total fees payable pursuant to Article 83 under the fees regula-tions referred to in Article 113, and, to the extent necessary, a subsidyfrom the general budget of the European Communities.
4. Expenditure shall comprise, without prejudice to other types of
expenditure, the fixed costs of the Office and the costs arising from theOffice’s normal functioning, including sums payable to the ExaminationOffices.
Article 109
Preparation of the budget
1. The President shall draw up each year an estimate of the Office’s
revenue and expenditure for the following year and shall transmit it tothe Administrative Council not later than 31 March each year, togetherwith a list of posts and, where the estimate provides for a subsidyreferred to in Article 108 (3), prefaced by an explanatory statement.
2. Should the estimate provide for a subsidy referred to in Article
108 (3), the Administrative Council shall immediately forward theestimate to the Commission, together with the list of posts and theexplanatory statement, and may attach its opinion. The Commissionshall forward them to the budget authority of the Communities and mayattach an opinion along with an alternative estimate.
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3. The Administrative Council shall adopt the budget, which shall
include the Office’s list of posts. Should the estimate contain a subsidyreferred to in Article 108 (3), the budget shall, if necessary, be adjustedto the appropriations in the general budget of the European Communi-ties.
Article 110
Implementation of the budget
The Presidentshall implementt he Office’s budget .
Article 111
Control
1. Control of commitment and payment of all expenditure and
control of the existence and recovery of all revenue of the Office shallbe carried out by the financial controller appointed by the Adminis-trative Council.
2. Not later than 31 March each year the President shall transmit to
the Commission, the Administrative Council and the Court of Auditorsof the European Communities accounts of the Office’s total revenue andexpenditure for the preceding financial year. The Court of Auditorsshall examine them in accordance with relevant provisions applicable tothe general budget of the European Communities.
3. The Administrative Council shall give a discharge to the President
of the Office in respect ot the implementation of the budget.
Article 112
Financial provisions
The Administrative Council shall, after consulting the Court of Audi-
tors, adopt internal financial provisions specifying, in particular, theprocedure for establishing and implementing the Office’s budget. Thefinancial provisions must, as far as possible, correspond to the provi-sions of the Financial Regulation applicable to the general budget of theEuropean Communities and depart from them only when the specificrequirements of the individual operation of the Office so dictate.
Article 113
Fees regulations
1. The fees regulations shall determine in particular the matters for
which fees pursuant to Article 83 (1) are due, the amounts of the feesand the way in which they are to be paid.
2. Fees shall be charged for atleastin respectof t he following
matters for:
(a) the processing of applications for grant of a Community plant
variety right; this fee shall cover:
— the formal examination, (Article 53),
— the substantive examination (Article 54),— the examination of the variety denomination (Article 63),— the decision (Articles 61, 62)— the related publishing (Article 89);
(b) the arranging and carrying out of the technical examination;
(c) the processing of an appeal including the decision;
(d) each year of the duration of a Community plant variety right.
3. (a) Without prejudice to (b) and (c), the amounts of the fees shall be
fixed at such a level as to ensure that the revenue in respectthereof is in principle sufficient for the budget of the Office to bebalanced.
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(b) However, the subsidy referred to in Article 108 (3) may cover,
for a transitional period ending on 31 December of the fourthyear from the date laid down in Article 118 (2), the expenditurerelating to the initial running phase of the Office. In accordancewith the procedure laid down in Article 115, this period may beextended, if necessary, for no more than one year.
(c) Moreover, during the abovementioned transitional period only,
the subsidy referred to in Article 108 (3) may also cover certainexpenditure of the Office relating to certain activities other thanthe processing of applications, the arranging and carrying out ofthe technical examinations and the processing of appeals. Theseactivities shall be specified, at the latest one year after theadoption of this Regulation, in implementing rules pursuant toArticle 114.
4. The fees regulations shall be adopted in accordance with the
procedure laid down in Article 115, after consultation of the Adminis-trative Council on the draft of the measures to be taken.
Article 114
Other implementing rules
1. Detailed implementing rules shall be adopted for the purpose of
applying this Regulation. They shall in particular include procisions:
— defining the relationship between the Office and the Examination
Offices, agencies or its own sub-offices referred to in Articles 30 (4)and 55 (1) and (2),
— on matters referred to in Articles 36 (1) and 42 (2),— on the procedure of the Boards of Appeal.
2. Without prejudice to Articles 112 and 113, all the implementing
rules referred to in this Regulation shall be adopted in accordance withthe procedure laid down in Article 115, after consultation of theAdministrative Council on the draft of the measures to be taken.
Article 115
Procedure
1. The Commission shall be assisted by a committee composed of
the representatives of the Member States and chaired by the repres-entative of the Commission.
2. Where the procedure laid down in this Article is to be followed,
the representative of the Commission shall submit to the committee adraft of the measures to be taken. The committee shall deliver itsopinion on the draft, within a time limit which the chairman may laydown according to the urgency of the matter. The opinion shall bedelivered by the majority laid down in Article 148 (2) of the Treaty inthe case of decisions which the Council is required to adopt on aproposal from the Commission. The votes of the representatives of theMember States within the committee shall be weighted in the mannersetoutin t hatArt icle. The chairman shall notvot e.
3. (a) The Commission shall adopt the measures envisaged if they are
in accordance with the opinion of the committee.
(b) If the measures envisaged are not in accordance with the opinion
of the committee, or if no opinion is delivered, the Commissionshall, without delay, submit to the Council a proposal relating tothe measures to be taken. The Council shall act by a qualifiedmajority.
If, on the expiry of a period of three months from the date of referral to
the Council, the Council has not acted, the proposed measures shall beadopted by the Commission, save where the Council has decidedagainst the said measures by a simple majority.
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PART EIGHT
TRANSITIONAL AND FINAL PROVISIONS
Article 116
Derogations
1. Notwithstanding Article 10 (1) (a) and without prejudice to the
provisions of Article 10 (2) and (3), a variety shall be deemed to be newalso in cases where variety constituents or harvested material thereofhave not been sold or otherwise disposed of to others, by or with theconsent of the breeder, within the territory of the Community forpurposes of exploitation of the variety, earlier than four years, in thecase of trees or of vines earlier than six years, before the entry intoforce of this Regulation, if the date of application is within one year ofthat date.
2. The provision of paragraph 1 shall apply to such varieties also in
cases where a national plant variety right was granted in one or moreMember States before the entry into force of this Regulation.
3. Notwithstanding Articles 55 and 56, the technical examination of
these varieties shall be carried out to the extent possible by the Officeon the basis of the available findings resulting from any proceedings forthe grant of a national plant variety right, in agreement with theauthority before which these proceedings were held.
4. In the case of a Community plant variety right granted pursuant to
paragraphs 1 or 2:
— Article 13 (5) (a) shall not apply in relation to essentially derived
varieties, the existence of which was a matter of common knowl-edge in the Community before the date of entry into force of thisRegulation.
— Article 14 (3), fourth indent shall not apply to farmers who continue
to use an established variety in accordance with the authorization ofArticle 14 (1) if, before the entry into force of this Regulation, theyhave already used the variety for the purposes described in Article14 (1) without payment of a remuneration; this provision shall applyuntil 30 June of the seventh year following that of the entry intoforce of this Regulation. Before that date the Commission shallsubmit a report on the situation of the established varieties dealingwith each variety individually. That period may be extended, in theimplementing provisions adopted pursuant to Article 114, in so faras the Commission’s report justifies it.
— without prejudice to the rights conferred by national protection, the
provisions of Article 16 shall apply mutatis mutandis to acts
concerning material disposed of to others by the breeder or with hisconsent prior to the date of entry into force of this Regulation, andeffected by person who, prior to that date, have already effectedsuch acts or have made effective and genuine arrangements to do so.
If such earlier acts have involved further propagation which was
intended within the meaning of Article 16 (a), the authorization ofthe holder shall be required for any further propagation after theexpiry of the second year, in the case of varieties of vine and treespecies after the expiry of the fourth year, following the date ofentry into force of this Regulation.
— Notwithstanding Article 19, the duration of the Community plant
variety right shall be reduced by the longest period:
— during which variety constituents or harvested material thereof
have been sold or otherwise disposed of to others, by or with theconsent of the breeder, within the territory of the Community forpurposes of exploitation of the variety, as established in thefindings resulting from the procedure for the grant of theCommunity plant variety right, in the case of paragraph 1,
— during which any national plant variety right or rights have been
effective, in the case of paragraph 2,
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butnotmore t han by five years.
Article 117
Transitional provisions
The Office shall be set up in good time to assume fully the tasks
incumbentupon itpursuantt o t his Regulat ion as from 27 April 1995.
Article 118
Entry into force
1. This Regulation shall enter into force on the day of its publication
in theOfficial Journal of the European Communities .
2. Articles 1, 2, 3, 5 to 29 and 49 to 106 shall apply from 27 April
1995.
This Regulation shall be binding in its entirety and directly applicable in
all Member States.