1995R1239 — EN — 01.07.1998 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COMMISSIONREGULATION(EC)No1239/95
of31May1995
establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as
regardsproceedingsbeforetheCommunityPlantVarietyOffice
(OJ L 121, 1.6.1995, p. 37)
Amended by:
Official Journal
No page date
►M1CommissionRegulation(EC) No 448/96 of 12 March 1996 L 62 3 13.3.1996
►M2CommissionRegulation(EC) No 2181/2002 of 6 December 2002 L 331 14 7.12.2002
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
▼B
COMMISSIONREGULATION(EC)No1239/95
of31May1995
establishing implementing rules for the application of Council
Regulation (EC) No 2100/94 as regards proceedings before the
CommunityPlantVarietyOffice
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2100/94 of 27 July 1994
on Community plant variety rights(1), and in particular Article 114
thereof,
Whereas Regulation(EC) No 2100/94 (herein after referred to as ‘the
Basic Regulation’) creates a new Community system of plant varietyrights, whereby a plant variety right is valid throughout the Commu-
nity;
Whereas such a system should be carried out in an effective manner as
soon as possible by the Community Plant Variety Office, which isassisted by Examination Offices in conducting the technical examina-
tion of the plant varieties concerned and which may avail itself of the
services of designated national agencies or one of its own sub-officesestablished for that purpose; whereas, in that regard, it is indispensableto define the relationship between the Office and its own sub-offices,the Examination Offices and national agencies;
Whereas decisions of the Office may be appealed against before its
Board of Appeal which should be established and provisions on itsprocedure should be adopted; whereas further Boards of Appeal maybe established, if necessary, by the Administrative Council;
Whereas certainprovision s of Articles 23, 29, 34, 35, 36, 42, 45, 46,
49, 50, 58, 81, 85, 87, 88 and 100 of the Basic Regulation alreadyexplicitly provide that detailed rules shall or may be drawnup for theirimplementation; whereas other detailed rules should be drawn up for
the same purpose if clarificationis required;
Whereas the entry into effect of a transfer of a Community plant
variety right or a transfer of an entitlement thereto should be definedin the rules relating to the entries to the Registers;
Whereas the Administrative Council of the Community Plant Variety
Office has beencon sulted;
Whereas the rules provided for inthis Regulationare inaccordan ce
with the opinion of the Standing Committee on Plant Variety Rights,
HAS ADOPTED THIS REGULATION:
TITLE I
PARTIESTOPROCEEDINGS,OFFICEANDEXAMINATIONOFFICES
CHAPTER I
PARTIES TO PROCEEDINGS
Article 1
Parties toproceedings
1. The following persons may be party to proceedings before the
Community Plant Variety Office, hereinafter referred to as ‘the Office’:
(a) the applicant for a Community plant variety right;
(b) the objector referred to inArticle 59 (2) of the Basic Regulation ;1995R1239 — EN — 01.07.1998 — 001.001 — 2
(1) OJ No L 227, 1. 9. 1994, p. 1.
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(c) the holder or holders of the Community plant variety right, herein-
after referred to as ‘the holder’;
(d) any person whose application or request is a prerequisite for a deci-
sionto be takenby the Office.
2. The Office may allow participation in the proceedings by any
personother thanthose referred to inparagraph 1 who is directly an d
individually concerned, upon written request.
3. Any natural or legal person as well as any body qualifying as a
legal person under the law applicable to that body shall be considereda person within the meaning of paragraphs 1 and 2.
Article 2
Designationofpartiestoproceedings
1. A party to proceedings shall be designated by his name and
address.
2. Names of natural persons shall be indicated by the person's family
name and given names. Names of legal persons as well as companiesor firms shall be indicated by their official designations.
3. Addresses shall contain all the relevant administrative informa-
tion, including the name of the State in which the party toproceedings is resident or where his seat or establishment is located.Only one address should preferably be indicated for each party toproceedings; where several addresses are indicated, only the addressmentioned first shall be taken into account, except where the party to
proceedings designates one of the other addresses as an address for
service.
4. Where a party to proceedings is a legal person, it shall also be
designated by the name and address of the natural person legally repre-senting the party to proceedings by virtue of the relevant national
legislation. The provisions of paragraph 2 shall apply mutatis mutandis
to such natural person.
The Office may permit derogations from the provisions of the first
sentence of the first subparagraph.
5. Where the Commissionor a Member State is party to proceed-
ings, it shall communicate a representative for each proceeding in
which it takes part.
Article 3
Languagesofpartiestoproceedings
1. A language, being an official language of the Communities,
chosen by a party to proceedings for use in the document firstsubmitted to the Office and signed for the purpose of submission shall
be used by the party to proceedings until a final decision is delivered
by the Office.
2. If a party to proceedings files a document signed for that purpose
by him in any other official language of the Communities than that tobe used pursuant to paragraph 1, the document shall be deemed to have
beenreceived whenthe Office holds a tran slationthereof, provided by
other services. The Office may permit derogations from this require-ment.
3. If, in oral proceedings, a party uses a language other than the offi-
cial language of the Communities used by the competent members of
the staff of the Office, by other parties to proceedings, or by both,
being the language to be used by him, he shall make provision forsimultaneous interpretation into that official language. If no such provi-sion is made, oral proceedings may continue in the languages used bythe competent members of the staff of the Office and by other partiesto the proceedings.1995R1239 — EN — 01.07.1998 — 001.001 — 3
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Article 4
Languagesinoralproceedingsandinthetakingofevidence
1. Any party to proceedings and any witness or expert who gives
evidence in oral proceedings may use any of the official languages ofthe EuropeanCommun ity.
2. Should the taking of evidence referred to in paragraph 1 be
allowed at the request of a party to proceedings, then, should a party
to proceedings, a witness or expert be unable to express himself
adequately in any of the official languages of the European Commu-nities, he may be heard only if the party who made the request makesprovision for interpretation into the languages used jointly by all partiesto proceedings or, in the absence thereof, by the members of the staff
of the Office.
The Office may permit derogations from the first subparagraph.
3. Statements made by the members of the staff of the Office, by
parties to proceedings, witnesses or experts in one of the official
languages of the European Communities during oral proceedings ortaking of evidence shall be entered in the minutes in the languageused. Statements made in any other language shall be entered in thelanguage used by the members of the staff of the Office.
Article 5
Translationofdocumentsofpartiestoproceedings
1. If a party to proceedings files a document in a language other
than an official language of the European Communities, the Officemay require a translation of the documents received to be made bythe party to the proceedings into the language to be used by that party
or by the competent members of the staff of the Office.
2. Where a translation of a document is to be filed or is filed by a
party to proceedings, the Office may require the filing, within suchtime as it may specify, of a certificate that the translation correspondsto the original text.
3. Failure to file the translation referred to in paragraph 1 and the
certificate referred to in paragraph 2 shall lead to the document's beingdeemed not to have been received.
CHAPTER II
THE OFFICE
Section 1
Committees of the Office
Article 6
QualificationofmembersoftheCommittees
1. The Committees referred to inArticle 35 (2) of the Basic Regula-
tionshall, at the discretionof the Presiden t of the Office, be composedof technically or legally qualified members, or both.
2. A technical number shall hold a degree, or shall be qualified by
recognized experience, in the field of plant science.
3. A legally qualified member shall be a graduate inlaw or qualified
by recognized experience in the field of intellectual property or plantvariety registration.1995R1239 — EN — 01.07.1998 — 001.001 — 4
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Article 7
DecisionsoftheCommittee
1. A Committee shall, besides taking the decisions referred to in
Article 35 (2) of the Regulation, deal with:
— the non-suspension of a decision pursuant to Article 67 (2) of the
Basic Regulation,
— interlocutory revision pursuant to Article 70 of that Regulation,
— therestitutio in integrum pursuant to Article 80 of that Regulation,
and
— the award of costs pursuant to Article 85 (2) of that Regulation and
Article 75 of this Regulation.
2. A decisionof the Committee shall be takenby a majority of its
members.
Article 8
PowerofindividualmembersoftheCommittees
1. The Committee shall designate one of its members as rapporteur
onits behalf.
2. The rapporteur may inparticular:
(a) perform the duties under Article 25 and monitor the submission of
reports by the Examination Offices;
(b) pursue the procedure within the Office, including the communica-
tion of any deficiencies to be remedied by a party to proceedings
and the setting of time limits; and
(c) ensure a close consultation and exchange of information with the
parties to the proceedings.
Article 9
RoleAthePresident
The President of the Office shall ensure the consistency of decisions
taken under his authority. He shall in particular lay down the condi-tions under which decisions on objections lodged pursuant to Article59 of the Basic Regulation, and also decisions pursuant to Articles 61,62, 63 or 66 of that Regulation, are taken.
Article 10
Consultations
Members of the staff of the Office may use, free of charge, the
premises of national agencies designated pursuant to Article 30 (4) ofthe Basic Regulation, and those of Examination Offices, for holding
periodical consultation days with parties to proceedings and third
persons.
Section 2
Boards of Appeal
Article 11
BoardsofAppeal
1. For the purpose of deciding on appeals from the decisions
referred to inArticle 67 of the Basic Regulation , a Board of Appeal ishereby established. If necessary, the Administrative Council may, on aproposal from the Office, establish more Boards of Appeal. Inthatevent, it shall determine the allocation of work between the Boards ofAppeal thus established.
2. Each Board of Appeal shall consist of technical and legally quali-
fied members; Article 6 (2) and (3) shall apply mutatis mutandis .T h e
chairmanshall be a legally qualified n umber.1995R1239 — EN — 01.07.1998 — 001.001 — 5
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3. The examination of an appeal shall be assigned by the chairman
of the Board of Appeal to one of its members as rapporteur. Suchassignment may include, where appropriate, the taking of evidence.
4. Decisions of the Board of Appeal shall be taken by a majority of
its members.
Article 12
RegistryattachedtoaBoardofAppeal
1. The President of the Office shall attach a registry to the Board of
Appeal; members of the staff of the Office shall be excluded from the
registry if they have participated in proceedings relating to the deci-sions under appeal.
2. The employees of the registry shall inparticular be respon sible
for:
— drawing up the minutes of oral proceedings and taking evidence
pursuant to Article 63 of this Regulation,
— apportioning costs pursuant to Article 85 (5) of the Basic Regula-
tion and Article 76 of this Regulation, and
— confirming any settlement of costs referred to in Article 77.
CHAPTER III
EXAMINATION OFFICES
Article 13
Designation of an Examination Office referred to in Article 55 (1)
oftheBasicRegulation
1. When the Administrative Council entrusts the competent office in
a Member State with responsibility for technical examination, thePresident of the Office shall notify the designation to such office, here-inafter referred to as Examination Office. It shall take effect on the day
of issue of the notification by the President of the Office. This provi-
sionshall apply mutatis mutandis to the cancellation of the designation
of an Examination Office, subject to Article 15 (6) of this Regulation.
2. A member of the staff of the Examination Office taking part in a
technical examination is not allowed to make any unauthorized use of,
or disclose to any unauthorized person, any facts, documents and infor-mation coming to their knowledge in the course of or in connectionwith the technical examination; they shall continue to be bound bythis obligation after the termination of the technical examinationconcerned, after leaving the service and after the cancellation of the
designation of the Examination Office concerned.
3. Paragraph 2 shall apply mutatis mutandis to material of the plant
variety which has beenmade available to the Examin ationOffice bythe applicant.
4. The Office shall monitor compliance with paragraphs 2 and 3 and
shall decide onthe exclusionof or objection s raised to members of thestaff of Examination Offices in accordance with Article 81 (2) of theBasic Regulation.
Article 14
Designation of an Examination Office referred to in Article 55 (2)
oftheBasicRegulation
1. Where the Office intends to entrust agencies with responsibility
for the technical examination of varieties in accordance with Article55 (2) of the Basic Regulation, it shall transmit an explanatory state-ment on the technical suitability of such agency as Examination
Office to the Administrative Council for consent.
2. Where the Office intends to establish its own sub-office for the
technical examination of varieties, it shall transmit an explanatorystatement on the technical and economic appropriateness of estab-1995R1239 — EN — 01.07.1998 — 001.001 — 6
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lishing such a sub-office for that purpose and on the siting of such sub-
office to the Administrative Council for consent.
3. When the Administrative Council gives its consent to the expla-
natory statements referred to in paragraphs 1 and 2, the President of
the Office may notify such designation to the agency referred to inparagraph 1, or may publish the designation of a sub-office as referredto inparagraph 2 inthe Official Journal of the European Communities .
It may be cancelled only with the consent of the AdministrativeCouncil. Article 13 (2) and (3) shall apply mutatis mutandis to the
members of the staff of the agency referred to in paragraph 1.
Article 15
Procedure fordesignation
1. The designation of an Examination Office shall be effected by a
written agreement between the Office and the Examination Officeproviding for the performance of the technical examination of plantvarieties by the Examination Office and for the payment of the feereferred to inArticle 58 of the Basic Regulation . Inthe case of a sub-
office referred to in Article 14 (2) of this Regulation, the designation
shall be by internal rules on working-methods issued by the Office.
2. The effect of the writtenagreemen t shall be such that acts
performed or to be performed by members of the staff of the Examina-tion Office in accordance therewith shall be considered, as far as thirdparties are concerned, to be acts of the Office.
3. Where the Examination Office intends to avail itself of the
services of other technically qualified bodies in accordance with Article
56 (3) of the Basic Regulation, such bodies shall be named in thewrittenagreemen t with the Office. Article 81 (2) of the Basic Regula-tion and Article 13 (2) and (3) of this Regulation shall apply mutatis
mutandis to the staff members concerned, who shall sign a written
undertaking to observe confidentiality.
4. Payment of the fee by the Office to the Examination Office shall
be within the scales to be inserted later in this Regulation, by 31December 1999, onthe basis of the requiremen ts laid downinArticle93 (1) hereof. The scales, once adopted, may be amended only subjectto amendment of Commission Regulation (EC) No 1238/95(
1) (fees).
5. The Examination Office shall periodically submit to the Office a
breakdown of the costs of the technical examination performed and of
the maintenance of the necessary reference collections. In the circum-
stances set out in paragraph 3, a separate auditing report of the bodiesshall be submitted to the Office by the Examination Office.
6. Any cancellation of designation of an Examination Office may
not take effect prior to the day on which revocation of the writtenagreement referred to in paragraph 1 takes effect.1995R1239 — EN — 01.07.1998 — 001.001 — 7
(1) See page 31 of this Official Journal.
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TITLE II
SPECIFICPROCEEDINGSBEFORETHEOFFICE
CHAPTER I
APPLICATION FOR A COMMUNITY PLANT VARIETY RIGHT
Section 1
Actions of the applicant
Article 16
Filingoftheapplication
1. The application for a Community plant variety right shall be filed
in duplicate at the Office, or in triplicate at the national agencies orsub-offices established pursuant to Article 30 (4) of the Basic Regula-tion.
2. The ‘information’ sent to the Office under indent (b) of Article 49
(1) of the Basic Regulation shall contain:
— particulars for identifying the applicant and, where appropriate, his
procedural representative,
— the national agency or sub-office at which the application for a
Community plant variety right was filed, and
— the provisional designation of the variety concerned.
3. The Office shall make the following forms available free of
charge, to be filled out and signed by the applicant:
(a) an application form and a technical questionnaire, for the purposes
of filing an application for a Community plant variety right;
(b) a form for forwarding the information referred to in paragraph 2,
indicating the consequences of any failure of the forwarding.
Article 17
Receiptoftheapplication
1. Where a national agency designated pursuant to Article 30 (4) of
the Basic Regulationor a sub-office established thereun der, receives an
application, it shall forward to the Office, together with the application
to be forwarded inaccordan ce with Article 49 (2) of the Basic Regula-tion, a confirmation of receipt. The confirmation of receipt shallinclude the file number of the national agency, the number offorwarded documents and the date of receipt at the national agency or
sub-office. A copy of the forwarded receipt shall be issued to the appli-
cant by the national agency or sub-office.
2. Where the Office receives anapplicationfrom the applican t direct
or via a sub-office or a national agency, it shall, without prejudice toother provisions, mark the documents making up the application witha file number and the date of receipt at the Office and shall issue areceipt to the applicant. The receipt shall include the file number of
the Office, the number of documents received, the date of receipt at
the Office and the date of application within the meaning of Article51 of the Basic Regulation. A copy of the receipt shall be issued tothe national agency or sub-office via which the Office has receivedthe application.
3. If the Office receives an application via a sub-office or national
agency more than one month after its filing by the applicant, the ‘date
of application’ within the meaning of Article 51 of the Basic Regula-
tion may not be earlier than the date of receipt at the Office, unless theOffice establishes on the basis of sufficient documentary evidence thatthe applicant has forwarded an information to it in accordance withindent (b) of Article 49 (1) of the Basic Regulation and Article 16 (2)of this Regulation.1995R1239 — EN — 01.07.1998 — 001.001 — 8
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Article 18
Conditionsreferred toinArticle 50(1)oftheBasicRegulation
1. If the Office finds that the application does not comply with the
conditions in Article 50 (1) of the Basic Regulation, it shall notify tothe applicant the deficiencies it has found, stating that only such dateas sufficient information remedying those deficiencies is received shallbe treated as the date of applicationfor the purposes of Article 51 ofthe Regulation.
2. An application complies with the condition in indent (i) of Article
50 (1) of the Basic Regulation only if date and country of any first
disposal within the meaning of Article 10 (1) of that Regulation are
indicated, or if, in the absence of such disposal a declaration is madethat no such disposal has occurred.
3. An application complies with the condition in indent (j) of Article
50 (1) of the Basic Regulation only if the date and the country given inany earlier application for the variety are, to the best of the applicant'sknowledge, indicated in respect of:
— anapplicationfor a property right inrespect of the variety, an d
— anapplicationfor official acceptan ce of the variety for certification
and marketing where official acceptance includes an officialdescriptionof the variety,
in a Member State or as a Member of the International Union for the
Protectionof New Varieties of Plan ts.
Article 19
Conditionsreferred toinArticle 50(2)oftheBasicRegulation
1. If the Office finds that the application does not comply with the
provisions of paragraphs 2, 3 and 4 of this Article or with Article 16 ofthis Regulation, it shall apply Article 17 (2) hereof, but shall require
the applicant to remedy the deficiencies it has found within such time
limit as it may specify. Where those deficiencies are not remedied ingood time the Office shall without delay refuse the application,pursuant to Article 61 (1) (a) of the Basic Regulation.
2. The application shall contain the following details:
(a) the nationality of the applicant, if he is a natural person, and his
designation as party to proceedings referred to in Article 2 of thisRegulation and, if he is not the breeder, the name and address ofthe breeder;
(b) the Latin name of the genus, species or sub-species to which the
variety belongs, and the common name;
(c) the characteristics of the variety which, in the applicant's opinion,
are clearly distinguishable from other varieties, such other varieties
being named (if appropriate) as reference varieties for testing;
(d) breeding, maintenance and propagation of the variety, including
information on:
— the characteristics, the variety denomination or, in the absence
thereof, the provisional designation, and the cultivation of any
other variety or varieties the material of which has to be used
repeatedly for the productionof the variety, or
— characteristics which have beengen etically modified, where the
variety concerned represents a genetically modified organism
within the meaning of Article 2 (2) of Council Directive 90/
220/EEC(
1);
(e) the region and the country in which the variety was bred or discov-
ered and developed;
(f) date and country of any first disposal of varietal constituents or
harvested material of the variety, for the purposes of assessing1995R1239 — EN — 01.07.1998 — 001.001 — 9
(1) OJ No L 117, 8. 5. 1990, p. 15.
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novelty in accordance with Article 10 of the Basic Regulation, or a
declarationthat such disposal has n ot yet occurred;
(g) the designation of the authority applied to and the file number of
the applications referred to in Article 18 (3);
(h) existing national plant variety rights or any patent for the variety
operating within the Community.
3. The Office may call for any necessary information and documen-
tation, and, if necessary, sufficient drawings or photographs for the
conduct of the technical examination within such time limit as it shall
specify.
4. Where the variety concerned represents a genetically modified
organism within the meaning of Article 2 (2) of Directive 90/220/
EEC, the Office may require the applicant to transmit a copy of thewritten attestation of the responsible authorities stating that a technicalexamination of the variety under Articles 55 and 56 of the Basic Regu-lation does not pose risks to the environment according to the norms of
the aforesaid Directive.
Article 20
Claimingpriority
If the applicant claims a right of priority for an applications within the
meaning of Article 52 (2) of the Basic Regulation, which is not the
earliest of those to be indicated pursuant to the first indent of Article
18 (3), the Office shall state that a priority date canon ly be giventosuch earlier application. Where the Office has issued a receiptincluding the date of filing of an application which is not the earliestof those to be indicated, the priority date notified shall be consideredvoid.
Article 21
EntitlementtoaCommunityplantvarietyrightduringproceedings
1. When the commencement of an action against the applicant in
respect of a claim referred to inArticle 98 (4) of the Basic Regulationhas been entered in the Register of Applications for Community plant
variety rights, the Office may stay the applicationproceedin gs. The
Office may set a date on which it intends to continue the proceedingspending before it.
2. When a final decision in, or any other termination of, the action
referred to inparagraph 1 has beenen tered inthe Register of Commu-nity plant variety rights, the Office shall resume proceedings. It mayresume them at anearlier date, but n ot prior to the date already setpursuant to paragraph 1.
3. Where entitlement to a Community plant variety right is validly
transferred to another person for the purposes of the Office, that personmay pursue the application of the first applicant as if it were his own,provided that he gives notice to this effect to the Office within one
month of the entry of final judgment in the Register of Applications
for Community plant variety rights. Fees due pursuant to Article 83 ofthe Basic Regulation and already paid by the first applicant shall bedeemed to have been paid by the subsequent applicant.
Section 2
Conduct of the technical examination
Article 22
Decisionontestguidelines
1. Upon proposal of the President of the Office, the Administrative
Council shall take a decision as to the test guidelines. The date and thespecies concerned of the decision shall be published in the OfficialGazette referred to inArticle 87 of this Regulation .1995R1239 — EN — 01.07.1998 — 001.001 — 10
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2. In the absence of a decision of the Administrative Council as to
test guidelines, the President of the Office may take a provisional deci-sion thereon. The provisional decision shall lapse on the date of the
decision of the Administrative Council. Where the provisional decision
of the President of the Office deviates from the decision of the Admin-istrative Council, a technical examination started prior to the decisionof the Administrative Council shall not be affected; the AdministrativeCouncil may decide otherwise, if circumstances so dictate.
Article 23
PowersvestedinthePresidentoftheOffice
1. Where the Administrative Council takes a decision on test guide-
lines, it shall include a power whereby the President of the Office mayinsert additional characteristics and their expressions in respect of avariety.
2. Where the President of the Office makes use of the power in
paragraph 1, Article 22 (2) of this Regulationshall apply mutatis
mutandis.
Article 24
NotificationbytheOffice oftheExaminationOffice
In accordance with Article 55 (3) of the Basic Regulation, the Office
shall transmit copies of the following documents relating to the variety
to the Examination Office:
(a) the application form, the technical questionnaire and each addi-
tional document submitted by the applicant containing information
needed for the conduct of the technical examination;
(b) the forms filled out by the applicant pursuant to Article 86 of this
Regulation;
(c) documents relating to an objection based on the contention that the
conditions laid down in Articles 7 to 9 of the Basic Regulation
have not been met.
Article 25
CooperationbetweentheOffice andtheExaminationOffice
The staff of the Examination Office responsible for the technical exam-
ination and the rapporteur designated in accordance with Article 8 (1)of this Regulation shall cooperate in all phases of a technical examina-
tion. Cooperation shall cover at least the following aspects:
(a) monitoring of the conduct of the technical examination, including
inspection of the locations of the test plots and the methods usedfor the tests by the rapporteur; and
(b) without prejudice to other investigations by the Office, information
from the Examination Office about details of any previous disposal
of the variety;
(c) submission by the Examination Office to the Office of interim
reports oneach growin g period.
Article 26
Formoftheexaminationreports
1. The examination report referred to in Article 57 of the Basic
Regulation shall be signed by the responsible member of the staff ofthe Examination Office and shall expressly acknowledge the exclusive
rights of disposal of the Office under Article 57 (4) of the Regulation.
2. The provisions of paragraph 1 shall apply mutatis mutandis to any
interim reports to be submitted to the Office. The Examination Officeshall issue a copy of such interim report direct to the applicant.1995R1239 — EN — 01.07.1998 — 001.001 — 11
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Article 27
Otherexaminationreports
1. An examination report on the results of any technical examination
which has beencarried out or is inthe process of bein g carried out forofficial purposes in a Member State by one of the offices responsiblefor the species concerned pursuant to Article 55(1) of the Basic Regu-lation may be considered by the Office to constitute a sufficient basis
for decision, provided that:
— the material submitted for the technical examination has complied,
in quantity and quality, with any standards that may have been laiddown pursuant to Article 55(4) of the Basic Regulation,
— the technical examination has been carried out in a manner consis-
tent with the designations by the Administrative Council pursuantto Article 55(1) of the Basic Regulation, and has been conductedin accordance with the test guidelines issued, on general instruc-tions given, pursuant to Article 56(2) of that Regulation and
Articles 22 and 23 of this Regulation,
— the Office has had the opportunity to monitor the conduct of the
technical examination concerned, and
— where the final report is not immediately available, the interim
reports oneach growin g period are submitted to the Office prior tothe examination report.
2. Where the Office does not consider the examination report
referred to in paragraph 1 to constitute a sufficient basis for a decision,it may follow the procedure under Article 55 of the Regulation, after
consultation of the applicant and the Examination Office concerned.
3. The Office and each competent national plant variety office in a
Member State shall give administrative assistance to the other by
making available, upon request, any examination reports on a variety,for the purpose of assessing distinctiveness, uniformity and stability ofthat variety. A specific amount shall be charged by the Office or thecompetent national plant variety office for the submission of such areport, such amount being agreed by the offices concerned.
4. An examination report on the results of a technical examination
which has beencarried out or is inthe process of bein g carried out
for official purposes in a third country which is Member of the Interna-
tional Union for the Protection of New Varieties of Plants may beconsidered by the Office to constitute a sufficient basis for decision,provided the technical examination complies with the conditions laiddown in a written agreement between the Office and the competentauthority of such third country. Such conditions shall at least include:
— those related to the material, as referred to inparagraph 1, first
indent,
— that the technical examination has been conducted in accordance
with the test guidelines issued, or general instructions given,
pursuant to Article 56(2) of the Basic Regulation,
— that the Office has had the opportunity to assess the suitability of
facilities for carrying out a technical examination for the species
concerned in that third country and to monitor the conduct of the
technical examination concerned, and
— those related to the availability of reports, as laid downinpara-
graph 1, fourth indent.
Section 3
Variety denomination
Article 28
Proposalforavariety denomination
The proposal for a variety denomination shall be signed and shall be
filed induplicate at the Office, or, if the proposal accompan ies theapplication for a Community plant variety right filed at the national1995R1239 — EN — 01.07.1998 — 001.001 — 12
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agency designated, or sub-office established, pursuant to Article 30 (4)
of the Regulation, in triplicate. The Office shall make available, free ofcharge, a form for the purposes of proposing a variety denomination.
Article 29
Examinationofaproposal
1. Where the proposal does not accompany the application for a
Community plant variety right or where a proposed variety denomina-
tion cannot be approved by the Office, the Office shall without delaycommunicate this to the applicant, shall require him to submit aproposal or a new proposal and shall indicate the consequences offailure.
2. Where the Office establishes at the time of receipt of the results
of the technical examination pursuant to Article 57 (1) of the Regula-tion that the applicant has not submitted any proposal for a variety
denomination, it shall without delay refuse the application for a
Community plant variety right in accordance with Article 61 (1) (c) ofthe Regulation.
Article 30
Guidelinesforvariety denomination
The Administrative Council shall adopt guidelines establishing uniform
and definitive criteria for determining impediments to the genericdesignation of a variety denomination referred to in Article 63 (3) and
(4) of the Basic Regulation.
CHAPTER II
OBJECTION
Article 31
Filingofobjections
1. Objections under Article 59 of the Basic Regulation shall contain:
(a) the name of the applicant and the file number of the application to
which the objectionis lodged;
(b) the designation of the objector as party to proceedings as set out in
Article 2 of this Regulation;
(c) if the objector has appointed a procedural representative, his name
and the address;
(d) a statement on the contention referred to in Article 59 (3) of the
Basic Regulationonwhich the objectionis based, an d onparticu-lars, items of evidence and arguments presented in support of theobjection.
2. If several objections in respect of the same application for a
Community plant variety right are filed, the Office may deal with thoseobjections in one set of proceedings.
Article 32
Rejectionofobjections
1. If the Office finds that the objection does not comply with Article
59 (1) and (3) of the Basic Regulation or Article 31 (1) (d) of this
Regulation or that it does not provide sufficient identification of the
applicationagain st which objectionis lodged, it shall reject the objec-tion as inadmissible unless such deficiencies have been remediedwithinsuch time limit it may specify.
2. If the Office notes that the objection does not comply with other
provisions of the Basic Regulation or of this Regulation, it shall rejectthe objection as inadmissible unless such deficiences have been reme-died prior to the expiry of the objectionperiods.1995R1239 — EN — 01.07.1998 — 001.001 — 13
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CHAPTER III
MAINTENANCE OF COMMUNITY PLANT VARIETY RIGHTS
Article 33
Obligations ofthe holder underArticle 64 (3)of theBasic Regula-
tion
1. The holder shall permit inspection of material of the variety
concerned and of the location where the identity of the variety is
preserved, in order to furnish the information necessary for assessingthe continuance of the variety in its unaltered state, pursuant to Article64 (3) of the Regulation.
2. The holder shall be required to keep writtenrecords inorder to
facilitate verificationof appropriate measures referred to inArticle 64(3) of the Regulation.
Article 34
Technicalverification oftheprotectedvariety
Without prejudice to Article 87 (4) of the Regulation, a technical veri-
fication of the protected variety shall be conducted in accordance withthe test guidelines duly applied when the Community plant varietyright was granted in respect of that variety. Articles 22 and 24 to 27of this Regulationshall apply mutatis mutandis to the Office, the
Examination Office and to the holder.
Article 35
Othermaterialtobeusedforatechnical verification
Whenthe holder has submitted material of the variety inaccordan ce
with Article 64 (3) of the Basic Regulation, the Examination Office
may, with the consent of the Office, verify the submitted material byinspecting other material which has been taken from holdings wherematerial is produced by the holder, or with his consent, or taken frommaterial being marketed by him, or with his consent, or taken by offi-cial bodies ina Member State by virtue of their powers.
Article 36
Amendmentsofthevariety denominations
1. Where the variety denomination has to be amended in accordance
with Article 66 of the Regulation, the Office shall communicate the
grounds thereof to the holder, shall set up a time limit within which
the holder must submit a suitable proposal for anamen ded varietydenomination, and shall state that, should he fail to do so, the Commu-nity plant variety right may be cancelled pursuant to Article 21 of theRegulation. Each proposal of the holder shall be filed in duplicate at
the Office.
2. Where the proposal for an amended variety denomination cannot
be approved by the Office, the Office shall without delay inform theholder, shall againset a time limit withinwhich the holder must submita suitable proposal, and shall state that, should he fail to comply, the
Community plant variety right may be cancelled pursuant to Article
21 of the Regulation.
3. Articles 31 and 32 of this Regulation shall apply mutatis mutandis
to anobjectionlodged pursuan t to Article 66 (3) of the Basic Regula-tion.1995R1239 — EN — 01.07.1998 — 001.001 — 14
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CHAPTER IV
COMMUNITY EXPLOITATION RIGHTS TO BE GRANTED BY
THE OFFICE
Section 1
Compulsory exploitationrights
Article 37
Applicationsforacompulsoryexploitationright
1. The application for a compulsory exploitation right shall contain:
(a) the designation of the applicant and the opposing holder of the
variety concerned as parties to proceedings;
(b) the variety denomination and the plant species of the variety or
varieties concerned;
(c) a proposal for the type of acts to be covered by the compulsory
exploitationright;
(d) a statement setting out the public interest concerned, including
details of facts, items of evidence and arguments presented insupport of the public interest claimed;
(e) inthe case of anapplicationreferred to inArticle 29 (2) of the
Basic Regulation, a proposal for the category of persons to whichthe compulsory exploitation right shall be granted, including, as thecase may be, the specific requirements related to that category ofpersons.
2. The applicationreferred to inArticle 29 (1) or (5) shall be
accompanied by documents evidencing his unsuccessful request for acontractual exploitation right from the opposing holder.
3. The applicationreferred to inArticle 29 (2) of the Regulation
shall be accompanied by documents evidencing the unsuccessfulrequests of persons for a contractual exploitation right from the
opposing holder. Should the Commission or a Member State be the
applicant for a compulsory exploitation right, the Office may waivethis condition in the case of force majeure .
4. A request for a contractual exploitation right shall be considered
unsuccessful within the meaning of paragraphs 2 and 3 if:
(a) the opposing holder has not given a final reply to the person
seeking such right within a reasonable period; or
(b) the opposing holder has refused to grant a contractual exploitation
right to the personseekin g it; or
(c) the opposing holder has offered a contractual exploitation right to
the person seeking it, on obviously unreasonable fundamental terms
including those relating to the royalty to be paid, or on terms
which, seen as a whole, are obviously unreasonable.
Article 38
Examinationoftheapplicationforacompulsoryexploitation right
1. Oral proceedings and the taking of evidence shall in principle be
held together in one hearing.
2. Requests for further hearings shall be inadmissible except for
those requests based on circumstances which have undergone changeduring or after the hearing.
3. Before taking a decision, the Office shall invite the parties
concerned to come to an amicable settlement on a contractual exploita-tionright. If appropriate, the Office shall make a proposal for such anamicable settlement.1995R1239 — EN — 01.07.1998 — 001.001 — 15
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Article 39
TenureofaCommunityplantvarietyrightduringtheproceedings
1. If the commencement of an action in respect of a claim referred
to inArticle 98 (1) of the Basic Regulationagain st the holder has beenentered in the Register of Community Plant Variety Rights, the Office
may suspend the proceedings on the grant of a compulsory exploitation
right. It shall not resume them prior to the entry in the same Register ofthe final judgment upon, or any other termination of, such action.
2. If a transfer of the Community plant variety right is binding on
the Office, the new holder shall enter the proceedings as party thereto,
upon request of the applicant, if that applicant has unsuccessfully
requested the new holder to grant him a contractual exploitation rightwithin two months of receipt of communication from the Office thatthe name of the new holder has been entered in the Register ofCommunity Plant Variety Rights. A request from the applicant shall
be accompanied by sufficient documentary evidence of his vain attempt
and, if appropriate, of the conduct of the new holder.
3. Inthe case of anapplicationreferred to inArticle 29 (2) of the
Regulation, the new holder shall enter the proceedings as party thereto.
The provisions of paragraph 1 shall not apply.
Article 40
Contentsofthedecisionontheapplication
The written decision shall be signed by the President of the Office. The
decision shall contain:
(a) a statement that the decison is delivered by the Office;
(b) the date whenthe decisionwas taken ;
(c) the names of the members of the committee having taken part in
the proceedings;
(d) the names of the parties to proceedings and of their procedural
representatives;
(e) the reference to the opinion of the Administrative Council;
(f) a statement of the issues to be decided;
(g) a summary of the facts;
(h) the grounds on which the decision is based;
(i) the order of the Office; if need be, the order shall include the stipu-
lated acts covered by the compulsory exploitationright, the specificconditions pertaining thereto and the category of persons, including
where appropriate the specific requirements relating to that cate-
gory.
Article 41
Grantofacompulsoryexploitation right
1. The decisionto gran t a compulsory exploitationright shall
contain a statement setting out the public interest involved.
2. The following grounds may in particular constitute a public
interest:
(a) the protection of life or health of humans, animals or plants;
(b) the need to supply the market with material offering specific
features; or
(c) the need to maintain the incentive for continued breeding of
improved varieties.
3. The compulsory exploitation right shall be non-exclusive.
4. The compulsory exploitation right may not be assigned, otherwise
thantogether with that part of anen terprise which makes use of thecompulsory exploitationright, or, inthe circumstan ces set out in1995R1239 — EN — 01.07.1998 — 001.001 — 16
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Article 29 (5) of the Basic Regulation, together with the assignment of
the rights over of anessen tially derived variety.
Article 42
Conditionspertaining to the person to whom a compulsory exploi-
tationrightisgranted
1. Without prejudice to the other conditions referred to in Article 29
(3) of the Basic Regulation, the person to whom the compulsoryexploitation right is granted shall dispose of appropriate financial andtechnical capacities to make use of the compulsory exploitation right.
2. Compliance with the conditions pertaining to the compulsory
exploitationright an d laid downinthe decisionthereuponshall beconsidered a ‘circumstance’ under Article 29 (4) of the Basic Regula-tion.
3. The Office shall provide that the personto whom a compulsory
exploitation right is granted may not bring a legal action for infringe-
ment of a Community plant variety right unless the holder has refused
or neglected to do so within two months after being so requested.
Article 43
Categoryofpersonssatisfyingspecific requirements
1. Any person intending to make use of a compulsory exploitation
right who comes under the category of person satisfying specific
requirements referred to in Article 29 (2) of the Basic Regulation shall
declare his intention to the Office and to the holder by registered letterwith advice of delivery. The declarationshall in clude:
(a) the name and address of that person as laid down for parties to
proceedings pursuant to Article 2 of this Regulation;
(b) a statement on the facts meeting the specific requirements;
(c) a statement setting out the acts to be effected; and
(d) an assurance that that person disposes of appropriate financial
resources as well as information about the technical capacity formaking use of the compulsory exploitation right.
2. Uponrequest, the Office shall en ter a personinthe Register of
Community Plant Variety Rights if such person has fulfilled the condi-tions relating to the declaration referred to in paragraph 1. Such personshall not be entitled to make use of the compulsory exploitation rightprior to the entry. The entry shall be communicated to that person andthe holder.
3. Article 42 (3) of this Regulationshall apply mutatis mutandis to a
person entered pursuant to paragraph 2. Any judgment, or other termi-nation, of the legal action in respect of the act of infringement shallapply to the other persons entered or to be entered.
4. The entry referred to in paragraph 2 may be deleted on the sole
grounds that the specific requirements laid down in the decision on the
grant of a compulsory exploitation right or the financial and technicalcapacities established pursuant to paragraph 2 have undergone changemore than one year after the grant of the compulsory exploitation rightand within any time limit stipulated in that grant. The deletion of theentry shall be communicated to the person entered and the holder.1995R1239 — EN — 01.07.1998 — 001.001 — 17
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Section 2
Exploitationrights pursuan t to Article 100 (2) of the Basic
Regulation
Article 44
ExploitationrightspursuanttoArticle100(2)oftheBasicRegula-
tion
1. A request for a contractual non-exclusive exploitation right from
a new holder, as referred to in Article 100 (2) of the Basic Regulation,shall be made, inthe case of the former holder withintwo mon ths, orin the case of a person having enjoyed an exploitation right within four
months, of receipt of notification from the Office that the name of the
new holder has been entered in the Register of Community PlantVariety Rights.
2. An application for an exploitation right to be granted pursuant to
Article 100 (2) of the Basic Regulationshall be accompan ied by docu-ments supporting the unsuccessful request referred to in paragraph 1.The provisions of Articles 37 (1) (a), (b), (c) and (4), 38, 39 (3), 40except letter (f), 41 (3) and (4) and 42 of this Regulation shall apply
mutatis mutandis .
TITLE III
PROCEEDINGSBEFORETHEBOARDOFAPPEAL
Article 45
Contentsofthenoticeofappeal
The notice of appeal shall contain:
(a) the designation of the appellant as party to appeal proceedings in
accordance with Article 2 of this Regulation;
(b) the file number of the decision against which the appeal is lodged
and a statement as to the extent to which amendment or cancella-tionof the decisionis sought;
Article 46
Receiptofthenoticeofappeal
Where the Office receives a notice of appeal, it shall mark it with a file
number of the appeal proceedings and the date of receipt at the Office
and shall notify the appellant of the time limit for setting out thegrounds of the appeal; any omission of such notice may not be pleaded.
Article 47
Participation aspartytotheappealproceedings
1. The Office shall promptly transmit a copy of the notice of appeal
marked with the file number and the date of its receipt to the parties to
proceedings having participated in the proceedings before the Office.
2. The parties to proceedings referred to in paragraph 1 may inter-
vene as parties to the appeal proceedings within two months oftransmission of a copy of the notice of appeal.
Article 48
RoleoftheOffice
1. The body of the Office referred to inArticle 70 (1) of the Basic
Regulation and the chairman of the Board of Appeal shall ensure by
internal preparatory measures that the Board of Appeal can examinethe case immediately after its remittal; the chairmanshall inparticularselect the two other members inaccordan ce with Article 46 (2) of thatRegulation and shall designate a rapporteur, prior to the remittal of thecase.1995R1239 — EN — 01.07.1998 — 001.001 — 18
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2. Prior to the remittal of the case, the body of the Office referred to
inArticle 70 (1) of the Basic Regulationshall promptly tran smit a copyof the documents received by a party to the appeal proceedings to the
other parties to the appeal proceedings.
3. The President of the Office shall provide for the publication of
the information referred to in Article 89 of this Regulation, prior tothe remittal of the case.
Article 49
Rejectionoftheappealasinadmissible
1. If the appeal does not comply with the provisions of the Basic
Regulation and in particular Articles 67, 68 and 69 thereof or those of
this Regulationan d inparticular Article 45 thereof, the Board of
Appeal shall so inform the appellant and shall require him to remedythe deficiencies found, if possible, within such period as it may specify.If the appeal is not rectified in good time, the Board of Appeal shallreject it as inadmissible.
2. Where an appeal is lodged against a decision of the Office against
which anactionun der Article 74 of the Basic Regulationis likewise
lodged, the Board of Appeal shall forthwith submit the appeal as anactionto the Court of Justice of the EuropeanCommun ities, with theconsent of the appellant; if the appellant does not consent, it shallreject the appeal as inadmissible. In the case of the submission of an
appeal to the Court of Justice, such anappeal shall be deemed to
have beenlodged with the Court of Justice as at the date of receipt atthe Office under Article 46 of this Regulation.
Article 50
Oral proceedings
1. After the remittal of the case, the chairmanof the Board of
Appeal shall, without delay, summonthe parties to the appeal proceed-ings to oral proceedings as provided for in Article 77 of the Basic
Regulation and shall draw their attention to the contents of Article 59
(2) of this Regulation.
2. The oral proceedings and the taking of evidence shall in principle
be held in one hearing.
3. Requests for further hearings shall be inadmissible except for
requests based on circumstances which have undergone change during
or after the hearing.
Article 51
Examinationofappeals
Unless otherwise provided, the provisions relating to proceedings
before the Office shall apply to appeal proceedings mutatis mutandis;
parties to proceedings shall in that regard be treated as parties to appealproceedings.
Article 52
Decisionontheappeal
1. Within three months after closure of the the oral proceedings, the
decisiononthe appeal shall be forwarded inwritin g to the parties to
the appeal proceedings.
2. The decisionshall be sign ed by the chairmanof the Board of
Appeal and by the rapporteur designated pursuant to Article 48 (1) ofthis Regulation. The decision shall contain:
(a) a statement that the decision is delivered by the Board of Appeal;
(b) the date whenthe decisionwas taken ;
(c) the names of the chairman and of the other members of the Board
of Appeal having taken part in the appeal proceedings;1995R1239 — EN — 01.07.1998 — 001.001 — 19
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(d) the names of the parties to the appeal proceedings and their proce-
dural representatives;
(e) a statement of the issues to be decided;
(f) a summary of the facts;
(g) the grounds on which the decision is based;(h) the order of the Board of Appeal, including, where necessary, a
decisionas to the award of costs or the refun d of fees.
3. The writtendecisionof the Board of Appeal shall be accompa-
nied by a statement that further appeal is possible, together with thetime limit for lodging such further appeal. The parties to the appeal
proceedings may not plead the omission of the statement.
TITLE IV
GENERALPROVISIONSRELATINGTOPROCEEDINGS
CHAPTER I
DECISIONS, COMMUNICATIONS AND DOCUMENTS
Article 53
Decisions
1. Any decision of the Office is to be signed by and to state the
name of the member of staff duly authorized by the President of the
Office in accordance with Article 35 of the Basic Regulation.
2. Where oral proceedings are held before the Office, the decisions
may be given orally. Subsequently, the decision in writing shall be
served onthe parties to proceedin gs.
3. Decisions of the Office which are open to appeal under Article 67
of the Basic Regulationor to direct appeal un der Article 74 thereofshall be accompanied by a statement of that appeal or direct appeal if
possible, together with the time limits provided for lodging such appeal
or direct appeal. The parties to proceedings may not plead to omissionof the statement.
4. Linguistic errors, errors of transcription and patent mistakes in
decisions of the Office shall be corrected.
Article 54
Certificate foraCommunityplantvariety right
1. Where the Office grants a Community plant variety right, it shall
issue, together with the decisionthereon , a certificate for the Commu-
nity plant variety right as evidence of the grant.
2. The Office shall issue the certificate for the Community plant
variety right in whichever official language or languages of the
Communities is requested by the holder.
3. Onrequest, the Office may issue a duplicate to the personen titled
if it establishes that the original certificate has been lost or destroyed.
Article 55
Communications
Unless otherwise provided, any communication by the Office or an
Examination Office shall include the name of the competent memberof the staff.
Article 56
Rightofaudience
1. If the Office finds that a decision may not be adopted in the terms
sought, it shall communicate the deficiencies noted to the party to theproceedings and shall require him to remedy those deficiencies within1995R1239 — EN — 01.07.1998 — 001.001 — 20
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such time limit as it may specify. If the deficiencies noted and commu-
nicated are not remedied in good time, the Office shall proceed to takeits decision.
2. If the Office receives observations from a party to proceedings, it
shall communicate those observations to the other parties to theproceedings and shall require them, if it considers it necessary, to reply
withinsuch time limit as it may specify. If a reply is n ot received in
good time, the Office shall disregard any document received later.
Article 57
Documentsfiledbypartiestoproceedings
1. The date of receipt of any document filed by parties to proceed-
ings shall be deemed to be the date on which a document is in fact
received on the premises of the Office, on the national agency, or thesub-office designated pursuant to Article 30 (4) of the Basic Regula-tion.
2. With the exception of annexed documents, any documents filed
by parties to proceedings must be signed by them or their proceduralrepresentative.
3. With the consent of the Administrative Council, the Office may
allow documents of a party to proceedings to be filed by telegraph,telex, telecopier, or other information equipment and lay down condi-tions governing their use.
4. If a document has not duly been signed or has been allowed to be
filed in accordance with paragraph 3, the party to proceedings shall berequired to supply the original of the document signed pursuant to theprovision of paragraph 2 within a time limit of one month. If such
document is supplied within such time limit, the date of receipt of the
former document shall be maintained; otherwise, it shall be deemed notto have beenreceived.
5. The Office may permit a derogationfrom the time limit required
under paragraph 4 where the party to proceedings concerned may filethe document concerned only at the Office direct. Such derogation maynot exceed two further weeks.
6. Such documents as must be communicated to other parties to
proceedings as well as to the Examination Office concerned, or docu-ments relating to two or more applications for a Community plantvariety right or anexploitationright, must be filed ina sufficien t
number of copies. Missing copies shall be provided at the expense of
the party to the proceedings.
Article 58
Documentaryevidence
1. Documentary evidence of final judgments or decisions other than
those of the Office shall be deemed sufficient where a copy thereof is
furnished that has been certified by the court or authority responsiblefor the judgment or decision.
2. Documentary evidence of other documents to be submitted by
parties to proceedings shall be deemed sufficient where it is the
original document or a certified copy thereof.
CHAPTER II
ORAL PROCEEDINGS AND TAKING OF EVIDENCE
Article 59
Summonstooralproceedings
1. The parties to proceedings shall be summoned to oral proceedings
provided for in Article 77 of the Basic Regulation and their attentionshall be drawn to paragraph 2 hereof. At least one month's notice ofthe summons dispatched to the parties to proceedings shall be given1995R1239 — EN — 01.07.1998 — 001.001 — 21
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unless the parties to proceedings and the Office agree on a shorter
period.
2. If a party to proceedings who has duly been summoned to oral
proceedings before the Office does not appear as summoned, theproceedings may continue without him.
Article 60
TakingofevidencebytheOffice
1. Where the Office considers it necessary to hear the oral evidence
of parties to proceedings or of witnesses or experts, or to carry out an
inspection, it shall take a decision to that effect, stating the means by
which it intends to obtain evidence, the relevant facts to be proved andthe date, time and place of hearing or inspection. If oral evidence fromwitnesses and experts is requested by a party to proceedings, the deci-sionof the Office shall state the period of time withinwhich the partyto proceedings filing the request must make known to the Office the
names and addresses of the witnesses and experts whom the party to
proceedings wishes to be heard.
2. At least one month's notice of a summons dispatched to a party to
proceedings, witness or expert to give evidence shall be given unless
the Office and they agree to a shorter period. The summons shall
contain:
(a) an extract from the decision referred to in paragraph 1, indicating
in particular the date, time and place of the investigation ordered
and setting out the facts regarding which parties to proceedings,
witnesses and experts are to be heard;
(b) the names of the parties to proceedings and particulars of the rights
which the witnesses or experts may invoke under the provisions ofArticle 62 (2) to (4) of this Regulation;
(c) a statement that the party to proceedings, witness or expert may ask
to the heard by the competent judicial or other authority in hiscountry of domicile and a request that he inform the Office withina time limit to be fixed by the Office whether he is prepared toappear before it.
3. Before a party to proceedings, a witness or an expert may be
heard, he shall be informed that the Office may request the competentjudicial or another authority in his country of domicile to re-examinehis evidence on oath or in some other binding form.
4. The parties to proceedings shall be informed of the hearing of a
witness or expert before a competent judicial or other authority. Theyshall have the right to be present and to put questions to the testifyingparties to proceedings, witnesses and experts, either through the inter-
mediary of the authority or direct.
Article 61
Commissioningofexperts
1. The Office shall decide inwhat form the report to be made by an
expert whom it appoints shall be submitted.
2. The mandate of the expert shall contain:
(a) a precise descriptionof his task;
(b) the time limit laid downfor the submissionof the report;
(c) the names of the parties to the proceedings;
(d) particulars of the rights which he may invoke under Article 62 (2)
to (4) of this Regulation.
3. For the purposes of the expert's report, the Office may require the
Examination Office having conducted the technical examination of thevariety concerned to make available material in accordance withinstructions given. If necessary, the Office may also require materialfrom parties to proceedings or third persons.1995R1239 — EN — 01.07.1998 — 001.001 — 22
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4. The parties to proceedings shall be provided with a copy and,
where appropriate, a translation of any written report.
5. The parties to proceedings may object to an expert. Articles 48
(3) and 81 (2) of the Basic Regulation shall apply mutatis mutandis .
6. Article 13 (2) and (3) shall apply mutatis mutandis to the expert
appointed by the Office. When appointing the expert, the Office shall
inform him of the requirement of confidentiality.
Article 62
Costsoftakingevidence
1. The taking of evidence may be made conditional upon deposit
with the Office, by the party to proceedings who requested that such
evidence be taken, of a sum to be quantified by the Office by referenceto anestimate of the costs.
2. Witnesses and experts who are summoned by and who appear
before the Office shall be entitled to appropriate reimbursement ofexpenses for travel and subsistence. An advance may be granted tothem.
3. Witnesses entitled to reimbursement under paragraph 2 shall also
be entitled to appropriate compensation for loss of earnings, and
experts unless members of the staff of the Examination Offices, to
fees for their work. Those payments shall be made to the witnessesafter the taking of evidence and to the experts after they have fulfilledtheir duties or tasks.
4. Payments of amounts due pursuant to paragraphs 2 and 3 and in
accordance with the details and scales laid down in the Annex shall bemade by the Office.
Article 63
Minutesoforalproceedingsandoftakingofevidence
1. Minutes of oral proceedings and of the taking of evidence shall
record the essentials of the oral proceedings or of the taking ofevidence, the relevant statements made by the parties to proceedings,
the testimony of the parties to proceedings, witnesses or experts and
the result of any inspection.
2. The minutes of the testimony of a witness, expert or party to
proceedings shall be read out or submitted to him so that he mayexamine them. It shall be noted in the minutes that this formality hasbeen carried out and that the person who gave the testimony approvedthe minutes. Where his approval is not given, his objections shall be
noted.
3. The minutes shall be signed by the employee who drew them up
and by the employee who conducted the oral proceedings or the takingof evidence.
4. The parties to proceedings shall be provided with a copy and,
where appropriate, a translation of the minutes.
CHAPTER III
SERVICE
Article 64
General provisionsonservice
1. In proceedings before the Office, any service of documents to be
made on a party to proceedings shall take the form of the originaldocument, in the case of the certificate, or of a copy of the originaldocument certified by the Office. Copies of documents emanatingfrom other parties to proceedings shall not require such certification.1995R1239 — EN — 01.07.1998 — 001.001 — 23
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2. If a procedural representative has been appointed by one or more
parties to proceedings, service shall be made on him in accordancewith the provisions of paragraph 1.
3. Service shall be made:
(a) by post in accordance with Article 65 of this Regulation;
(b) by delivery by hand in accordance with Article 66 hereof;
(c) by public notice in accordance with Article 67 hereof.
Article 65
Service bypost
1. Documents or copies thereof containing actions for which service
is provided inArticle 79 of the Regulationshall be served by registered
letter with advice of delivery.
2. Service on addressees not having their domicile or their seat or
establishment within the Community and who have not appointed a
procedural representative in accordance with Article 82 of the Basic
Regulation shall be effected by posting the documents to be served byordinary letter to the addressee's last address known to the Office.Service shall be deemed to have beeneffected by postin g evenif theletter is returned as undeliverable.
3. Where service is effected by registered letter, whether or not with
advice of delivery, this shall be deemed to have beendelivered to theaddressee on the 10th day following its posting, unless the letter has
failed to reach the addressee or has reached him ona later day; inthe
event of any dispute, it shall be for the Office to establish that the letterhas reached its destination or to establish the date on which the letterwas delivered to the addressee, as the case may be.
4. Service by registered letter, whether or not with advice of
delivery, shall be deemed to have beeneffected evenif the addresseerefuses to accept the letter or to acknowledge receipt thereof.
5. Where service by post is not covered by paragraphs 1 to 4, the
law of the State onthe territory of which the service is made shallapply.
Article 66
Service byhanddelivery
Onthe premises of the Office, service of a documen t may be effected
by delivery by hand to the addressee, who shall on delivery acknowl-
edge its receipt. Service shall be deemed to have takenplace evenif
the addressee refuses to accept the document or to acknowledge receiptthereof.
Article 67
Publicnotice
If the address of the addressee cannot be established, or if service in
accordance with Article 65 (1) has proved to be impossible even aftera second attempt by the Office, service shall be effected by public
n otice, to be issued inthe periodical publicationreferred to inArticle
89 of the Basic Regulation. The President of the Office shall determinedetails as to the issue of public notice.
Article 68
Irregularities inservice
If the Office is unable to prove that a document which has reached the
addressee has been duly served, or if provisions relating to its servicehave not been observed, the document shall be deemed to have beenserved onthe date established by the Office as the date of receipt.1995R1239 — EN — 01.07.1998 — 001.001 — 24
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CHAPTER IV
TIME LIMITS AND INTERRUPTION OF PROCEEDINGS
Article 69
Computationoftimelimits
1. Time limits shall be laid downinterms of full years, mon ths,
weeks or days.
2. Time limits shall runfrom the day followin g the day onwhich
the relevant event occurred, the event being either an action or theexpiry of another time limit. Unless otherwise provided, the eventconsidered shall be the receipt of the document served, where theactioncon sists inservice.
3. Notwithstanding the provisions of paragraph 2, the time limits
shall runfrom the 15th day followin g the day of publicationof a rele-vant action, where the action is either the public notice referred to inArticle 67 of this Regulation, a decision of the Office unless served tothe relevant person, or any action of a party to proceedings to be
published.
4. When a time limit is expressed as one year or a certain number of
years, it shall expire in the relevant subsequent year in the monthhaving the same name and on the day having the same number as themonth and the day on which the said event occurred; where the rele-
vant subsequent month has no day bearing the same number the time
limit shall expire onthe last day of that mon th.
5. When a time limit is expressed as one month or a certain number
of months, it shall expire in the relevant subsequent month on the daywhich has the same number as the day on which the said event
occurred; where the relevant subsequent month has no day bearing the
same number the period shall expire on the last day of that month.
6. Where a time limit is expressed as one week or a certain number
of weeks, it shall expire in the relevant subsequent week on the dayhaving the same name as the day on which the said event occurred.
Article 70
Durationoftime limits
Where either the Basic Regulationor this Regulationspecifies a time
limit to be determined by the Office, such a time limit shall be notless than one month and not more than three months. In certain special
cases, the time limit may be extended by up to six months upon a
request presented before the expiry of such time limit.
Article 71
Extensionoftimelimits
1. If a time limit expires ona day onwhich the Office is n ot open
for receipt of documents or on which, for reasons other than those
referred to in paragraph 2, ordinary mail is not delivered in the localityin which the Office is situated, the time limit shall extend until the firstday thereafter on which the Office is open for receipt of documents andonwhich ordin ary mail is delivered. The days referred to inthe first
sentence shall be as stated and communicated by the President of the
Office before the commencement of each calendar year.
2. If a time limit expires ona day onwhich there is a gen eral in ter-
ruptionor a subsequen t dislocationinthe delivery of mail ina MemberState or betweena Member State an d the Office, the time limit shall
extend until the first day following the end of the period of interruption
or dislocation for parties to proceedings having their domicile or seator establishment in the State concerned or having appointed proceduralrepresentatives with a seat in that State. Should the Member Stateconcerned be the State in which the Office is located, this provisionshall apply to all parties to proceedings. The duration of the period of1995R1239 — EN — 01.07.1998 — 001.001 — 25
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interruption or dislocation shall be as stated and communicated by the
President of the Office.
3. Paragraphs 1 and 2 shall apply mutatis mutandis to the national
agencies, or the sub-offices designated, pursuant to Article 30 (4) of
the Regulationas well as to the Examin ationOffices.
Article 72
Interruptionofproceedings
1. Proceedings before the Office shall be interrupted:
(a) in the event of the death or legal incapacity of the applicant for, or
holder of, a Community plant variety right or of the applicant foranexploitationright to be gran ted by the Office or of the personentitled to enjoy such exploitation right, or of the procedural repre-sentative of any of those parties; or
(b) in the event of a supervening legal impediment to such person's
continuation of proceedings before the Office, due to some actiontakenagain st his property.
2. When the necessary particulars in respect of the identity of the
person authorized to continue proceedings as party thereto or proce-dural representative have been entered in the relevant register, the
Office shall inform such person and the other parties that the proceed-
ings shall be resumed as from the date to be determined by the Office.
3. The time limits inforce shall beginafresh as from the day on
which proceedings are resumed.
4. The interrruption of proceedings shall not affect the pursuit of the
technical examination or verification of the variety concerned by anExamination Office where the relevant fees have already been paid tothe Office.
CHAPTER V
PROCEDURAL REPRESENTATIVES
Article 73
Designationofaproceduralrepresentative
1. Any designation of a procedural representative shall be communi-
cated to the Office. The communication shall contain the name and
address of the procedural representative; Article 2 (2) and (3) of thisRegulationshall apply mutatis mutandis .
2. Without prejudice to Article 2 (4), the communication referred to
inparagraph 1 shall also iden tify as such employee of the party toproceedings. An employee may not be designated as procedural repre-sentative within the meaning of Article 82 of the Basic Regulation.
3. Failure to comply with the provisions of paragraphs 1 and 2 shall
lead to the communication being deemed not to have been received.
4. A procedural representative whose mandate has ended shall
continue to be considered as procedural representative until the termi-nation of his mandate has been communicated to the Office. Subject toany provisions to the contrary contained therein, a mandate shallhowever, terminate vis-à-vis the Office uponthe death of the person
who conferred it.
5. If there are two or more parties to proceedings acting in common,
which have not notified a procedural representative to the Office, theparty to proceedings first named in an application for a Communityplanvariety right or for anexploitationright to be gran ted by theOffice or inanobjectionshall be deemed to be design ated as theprocedural representative of the other party or parties to proceedings.1995R1239 — EN — 01.07.1998 — 001.001 — 26
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Article 74
Credentialsofproceduralrepresentatives
1. Where the appointment of a procedural representative is notified
to the Office, the necessary signed credentials shall be presented for
inclusion in the files within such period as the Office may specifyunless otherwise provided. If the credentials are not filed in due time,any procedural step taken by the procedural representative shall bedeemed not to have been taken.
2. Credentials may cover one or more proceedings and shall be filed
in the corresponding number of copies. General credentials enabling aprocedural representative to act in all the proceedings of the partygiving the credentials may be filed. A single document embodying the
general credentials shall be sufficient.
3. The President of the Office may determine the contents of, and
make available, forms for credentials, including the general credentials
referred to inparagraph 2, free of charge.
CHAPTER VI
APPORTIONMENT AND DETERMINATION OF COSTS
Article 75
Awardsofcosts
1. A decisionas to costs shall be dealt with inthe decisiononthe
revocation or cancellation of a Community plant variety right, or thedecisiononthe appeal.
2. Inthe case of anaward of costs pursuan t to Article 85 (1) of the
Regulation, the Office shall set out that award in the statement of thegrounds of the decision on the revocation or cancellation of a Commu-nity plant variety right, or the decision on the appeal. The parties toproceedings may not plead the omission of the indication.
Article 76
Determination ofcosts
1. A request for the determination of costs shall be admissible only
if the decisionhas beentakeninrespect of which the determin ationof
costs is required and if, in the event of an appeal against such decision,
the Board of Appeal has decided uponthat appeal. A bill of costs, withsupporting documents, shall be attached to the request.
2. Costs may be determined once their credibility is established.
3. Where one party to proceedings incurs the costs of another party
to the proceedings, it shall not be required to reimburse any costs other
thanthose referred to inparagraph 4. Where the successful party to
proceedings is represented by more than one agent, adviser or advo-cate, the losing party shall bear the costs referred to in paragraph 4for one such person only.
4. The costs essential to proceedings shall cover:
(a) costs of witnesses and experts paid by the Office to the witness or
expert concerned;
(b) expenses for travel and subsistence of a party to proceedings and
an agent, adviser or advocate duly designated as a proceduralrepresentative before the Office, within the relevant scales applic-able to witnesses and experts laid down in the Annex;
(c) remuneration of an agent, adviser or advocate duly designated as
the procedural representative of a party to proceedings before theOffice, within the scales laid down in the Annex.1995R1239 — EN — 01.07.1998 — 001.001 — 27
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Article 77
Settlement ofcosts
In the event of a settlement of costs referred to in Article 85 (4) of the
Basic Regulation, the Office shall confirm such settlement in a commu-nication to the parties to the proceedings. Where such communicationconfirms also a settlement as to the amount of costs to be paid, a
request for the determination of costs shall be inadmissible.
TITLE V
INFORMATIONGIVENTOTHEPUBLIC
CHAPTER I
REGISTERS, PUBLIC INSPECTION AND PUBLICATIONS
Section 1
The Registers
Article 78
Entries related to proceedings and to Community plant variety
rights,tobeenteredintheRegisters
1. The following ‘other particulars’ referred to in Article 87 (3) of
the Regulation shall be entered in the Register of Applications forCommunity Plant Variety Rights:
(a) date of publicationwhere such publicationis a relevan t even t for
the computationof time limits;
(b) any objection, together with its date, the name and address of the
objector and those of his procedural representative;
(c) priority data (date and State of the earlier application);
(d) any institution of actions in respect of claims referred to in Articles
98 (4) and 99 of the Regulation as to entitlement to the Community
plant variety right, and the final decision in, or of any other termi-
nation of, such action.
2. The following ‘other particulars’ referred to in Article 87 (3) of
the Regulation shall be entered in the Register of Community PlantVariety Rights, uponrequest:
(a) the giving of a Community plant variety right as a security or as
the object of any other rights in rem;o r
(b) any institution of actions on claims referred to in Articles 98 (1)
and (2) and 99 of the Regulation and relating to the Communityplant variety right, and the final decision in, or of any other termi-nation of, such institution.
3. The President of the Office shall decide upon the details of the
entries to be made and may decide upon further particulars to be
entered in the Registers for the purpose of the management of theOffice.
Article 79
EntryoftransferofaCommunityplantvariety right
1. Any transfer of Community plant variety rights shall be entered in
the Register of Community Plant Variety Rights on production ofdocumentary evidence of the transfer, or of official documentsconfirming the transfer, or of such extracts from those documents as
suffice to establish the transfer. The Office shall retain a copy of those
papers inits files.
2. The entry of a transfer may be refused only in the event of failure
to comply with the conditions laid down in paragraph 1 and Article 23of the Regulation.1995R1239 — EN — 01.07.1998 — 001.001 — 28
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3. Paragraphs 1 and 2 shall apply to any transfer of an entitlement to
a Community plant variety right for which an application has beenentered in the Register of Applications for Community Plant Variety
Rights. The reference to the Register of Community Plant Variety
Rights shall be understood as a reference to the Register of Applica-tions for Community Plant Variety Rights.
Article 80
ConditionsforentriesintheRegisters
Without prejudice to other provisions of the Basic Regulation or of this
Regulation, a request for an entry or a deletion of an entry in theRegisters may be made by any interested person. The request shall bemade in writing, accompanied by supporting documents.
Article 81
Conditionsforspecific entries intheRegisters
1. Where a Community plant variety right applied for or granted is
involved in bankruptcy or like proceedings, an entry to this effect shallbe made, free of charge, in the Register for Community Plant VarietyRights at the request of the competent national authority. This entryshall also be deleted at the request of the competent national authority,
free of charge.
2. Paragraph 1 shall apply mutatis mutandis to the institution of
actions on claims referred to in Artcile 98 and 99 of the Regulation
and the final decision in, or of any other termination of, such institu-tion.
3. Where varieties are identified respectively as initial and essen-
tially derived, a request for entry by all the parties to proceedingsmay be made jointly or separately. In the event of a request fromonly one party to proceedings, the request shall be accompanied by
sufficient documentary evidence of the actions referred to in Article
87 (2) (h) of the Regulationto replace the request of the other party.
4. Where the entry of a contractual exclusive exploitation right or of
a Community plant variety right given as security or as the subject ofrightsin remis requested, such request shall be acompanied by suffi-
cient documentary evidence.
Article 82
PublicinspectionoftheRegisters
1. The Registers shall be openfor public in spectiononthe premises
of the Office.
2. Extracts from the Registers shall be delivered at the request of
any person on receipt of payment of an administrative fee.
3. The President of the Office may provide for public inspection on
the premises of national agencies, or sub-offices designated, pursuant toArticle 30 (4) of the Regulation.
Section 2
Keeping of documents, public inspection of documents and
varieties grown
Article 83
Keepingofthefiles
1. Documents relating to proceedings shall be kept in files, a file
number being attached to such proceedings, except for those documentsrelating to the exclusion of, or objection to, members of the Board ofAppeal, or to the staff of the Office or the Examination Officeconcerned, which shall be kept separately.1995R1239 — EN — 01.07.1998 — 001.001 — 29
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2. The Office shall keep one copy of the file referred to in paragraph
1 (file copy) which shall be considered the true and complete copy ofthe file. The Examination Office may keep a copy of the documents
relating to such proceedings (examination copy), but shall at all times
ensure delivery of those originals which the Office does not hold.
3. The President of the Office shall determine details as to the form
of the files to be kept.
Article 84
Inspectionofdocuments
1. A written request for the inspection of documents shall be
addressed to the Office.
2. Inspection of documents shall take place on the premises of the
Office. However, on request, inspection of documents may take placeon the premises of the national agencies or sub-offices designatedpursuant to Article 30 (4) of the Regulation on the territory of theMember State in which the person making the request is resident orhas his seat or establishment.
3. On request, the Office shall permit inspection of the documents
by issuing copies thereof to the person requesting them. Such copiesmay be subject to separate fees. Onrequest, the documen ts may alsobe inspected by way of a communication in writing of the informationcontained therein. However, the Office may require the personconcerned to view the documents personally should it deem this to be
appropriate in view of the quantity of information to be supplied.
Article 85
Inspectionofthegrowingofthevarieties
1. A request for inspection of the growing of the varieties shall be
addressed in writing to the Office. With the consent of the Office,access to the test plots shall be arranged by the Examination Office.
2. Without prejudice to Article 88 (3) of the Basic Regulation,
general access to the test plot by visitors shall not be affected by the
provisions of this Regulation, provided that all grown varieties are
coded, that appropriate measures against any removal of material aretaken by the Examination Office entrusted and are approved by theOffice, and that all necessary steps are taken to safeguard the rights ofthe applicant for, or holder of, a Community plant variety right.
3. The President of the Office may lay down the details of the
procedure for the inspection of the growing of the varieties, and may
review the safeguards to be provided under paragraph 2.
Article 86
Confidentialinformation
For the purpose of keeping information confidential, the Office shall
make available, free of charge, forms to be used by the applicant fora Community plant variety right in order to request the withholding of
all data relating to components as referred to in Article 88 (3) of the
Regulation.
Section 3
Publications
Article 87
Official Gazette
1. The publication to be issued at least every two months pursuant
to Article 89 of the Basic Regulationshall be called the OfficialGazette of the Community Plant Variety Office (hereinafter ‘the Offi-cial Gazette’).1995R1239 — EN — 01.07.1998 — 001.001 — 30
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2. The Official Gazette shall also contain the information entered in
the Registers pursuant to Articles 78 (1) (c), (d) and (2) and 79 of thisRegulation.
Article 88
Publication of applications for exploitation rights to be granted by
theOffice anddecisionsthereupon
The date of receipt of anapplicationfor anexploitationright to be
granted by the Office and of delivery of the decision on such applica-tion, the names and addresses of the parties to proceedings and theform of order sought, or decided upon, shall be published in the Offi-cial Gazette. Inthe case of a decisionto gran t a compulsory
exploitation right, the contents of such decision shall likewise be
published.
Article 89
Publicationofappealsanddecisionsthereupon
The date of receipt of a notice of appeal and of delivery of the decision
on such appeal, the names and addresses of the parties to the appealproceedings and the form of order sought, or decided upon, shall bepublished inthe Official Gazette.
CHAPTER II
ADMINISTRATIVE AND LEGAL COOPERATION
Article 90
Communicationofinformation
1. Information to be exchanged in accordance with Article 90 of the
Basic Regulationshall be commun icated direct betweenthe authorities
referred to inthat provision .
2. Communication of information referred to in Article 91 (1) of the
Regulationby or to the Office may be effected through the competen t
plant variety offices of the Member States, free of charge.
3. Paragraph 2, shall apply mutatis mutandis to communication of
information under Article 91 (1) of the Regulation effected to or by
the Examination Office. The Office shall receive a copy of suchcommunication.
Article 91
Inspection by or via courts or public proscutors' offices of the
MemberStates
1. Inspection of files under Article 91 (1) of the Regulation shall be
of duplicate file copies issued by the Office exclusively for that
purpose.
2. Courts or public prosecutors' offices of the Member States may,
in the course of proceedings before them, lay the documents trans-
mitted by the Office opento in spectionby third parties. Such
inspection shall be subject to Article 88 of the Basic Regulation, theOffice shall not charge any fee for it.
3. The Office shall, at the time of transmission of the files to the
courts or public prosecutor's offices of the Member States, indicatethe restrictions to which the inspection of documents relating to appli-cations for, or to grants of Community plant variety rights is subjectpursuant to Article 88 of the Basic Regulation.1995R1239 — EN — 01.07.1998 — 001.001 — 31
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Article 92
Procedure forlettersrogatory
1. Each Member State shall designate a central authority which will
undertake to receive letters rogatory issued by the Office and totransmit them to the court or authority competent to execute them.
2. The Office shall draw up letters rogatory inthe lan guage of the
competent court or authority or shall attach to such letters a translation
into that language.
3. Subject to paragraphs 4 and 5, the competent court or authority
shall apply its ownlaw as to the procedures to be followed inexecuting such requests. In particular, it shall apply suitable coercivemeasures inaccordan ce with its law.
4. The Office shall be informed of the time when, and the place
where, the enquiry or other legal measures is to take place and shallinform the parties to proceedings, witnesses and experts concerned.
5. If so requested by the Office, the competent court or authority
shall permit the attendance of the staff of the Office concerned and
allow them to question any person giving evidence, either directly or
through the competent court or authority.
6. The execution of letters rogatory shall not give rise to any charge
of fees or to costs of any kind. Nevertheless, the Member State inwhich letters rogatory are executed has the right to require the Office
to reimburse any fees paid to experts and interpreters and the costs
arising from the procedure under paragraph 5.
TITLE VI
FINALPROVISIONS
Article 93
Transitionalprovisions
1. In accordance with Article 15 (4) of this Regulation, the Office
shall pay the Examination Office a fee for the conduct of the technical
examination, on the basis of full recovery of costs incurred. By 27April 1997 the Administrative Council shall have determined uniformmethods for calculating the costs and the uniform constituents of thecosts, which shall apply to all designated Examination Offices.
2. The Administrative Council shall take a decision by 27 October
1996 on the test guidelines referred to in Article 22 of this Regulation;the President of the Office shall submit a proposal for such test guide-lines by 27 April 1996, taking into account those examination reportswhich form part of the findings referred to in Article 116 (3) of theBasic Regulation.
3. The applicant for a Community plant variety right pursuant to
Article 116 (1) or (2) of the Basic Regulationshall provide a certifiedcopy of the findings referred to in Article 116 (3) of that Regulation by30 November 1995. Such copy shall include the relevant documentsrelating to the proceedings for the grant of a national plant variety right
and shall be certified by the authority before which the proceedings
were held. Where such certified copy is not provided in good time,Article 55 of the Basic Regulationshall apply.
Article 94
Derogations
Notwithstanding Article 27 (1) of this Regulation, the Office may
consider examination reports on the results of a technical examinationonthat variety for official purposes ina Member State provided thatexamination has begun by 27 April 1996 unless a decision by theAdministrative Council on the test guidelines concerned has been takenprior to that date.1995R1239 — EN — 01.07.1998 — 001.001 — 32
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Article 95
Entryintoforce
This Regulation shall enter into force on the day of its publication in
theOfficial Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable
inall Member States.1995R1239 — EN — 01.07.1998 — 001.001 — 33
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ANNEX
1. The compensation payable to witnesses and experts in respect of travel and
subsistence expenses provided for in Article 62 (2) shall be calculated as
follows:
1.1. Travel expenses:
For the outward and return journey between the domicile or seat and the
place where oral proceedings are held or where evidence is taken:
(a) the cost of the first-class rail transport including usual transport supple-
ments shall be paid where the total distance by the shortest rail route
does not exceed 800 km;
(b) the cost of the tourist-class air transport shall be paid where the total
distance by the shortest rail route exceeds 800 km or the shortest route
requires a sea-crossing.
1.2. Subsistence expenses shall be paid equal to the daily subsistence allowance
of officials in grades A4 to A8 as laid down in Article 13 of Annex VII of
the Staff Regulations of Officials of the European Communities.
1.3. When a witness or expert is summoned to proceedings at the Office he will
receive with the summons a travel order containing details of those
amounts payable under 1.1 and 1.2, together with a request form covering
an advance on expenses. Before an advance can be paid to a witness or
expert his entitlement must be certified by the member of the staff of the
Office who ordered the evidence to be taken or, in the case of appeal
proceedings, the chairman of the responsible Board of Appeal. The request
form must therefore be returned to the Office for certification.
2. The compensation payable to witnesses in respect of loss of earnings
provided for inArticle 62 (3) shall be calculated as follows:
2.1. If a witness is required to be absent for a total period of more than 12
hours or less, the compensation for loss of earnings shall be equal to one
sixtieth of the basic monthly salary of an employee of the Office at the
lowest step of grade A4.
2.2. If a witness is required to be absent for a total period of more than 12
hours, he shall be entitled to payment of further compensation equal to
on e sixtieth of the basic salary referred to in2.1 inrespect of each further
period of 12 hours which is commenced.
3. The fees payable to experts provided for inArticle 62 (3) shall be deter-
mined, case by case, taking into account a proposal by the expert
concerned. The Office may decide to invite the parties to proceedings to
submit their comments on the amount proposed. Fees may be paid to an
expert only if he adduces evidence by supporting documents of not being
a member of the staff of anExamin ationOffice.
4. Payments to witnesses or experts for loss of earnings or fees under points 2
and 3 will be made following certification of the entitlement of the witness
or expert concerned by the member of the staff of the Office who ordered
the evidence to be taken or, in the case of the appeal proceedings, the
chairmanof the respon sible Boards of Appeal.
5. The remuneration of an agent, adviser or advocate acting as a representa-
tive of a party to proceedings as provided for in Article 76 (3) and (4) (c)
shall be borne by the other party to proceedings on the basis of the
following maximum rates:
(a) in the case of appeal proceedings except for the taking of evidence
which involves the examination of witnesses, opinions by experts or
inspection: ECU 500;
(b) in the case of taking of evidence in appeal proceedings which involves
the examination of witnesses, opinions by experts or inspection:
ECU 250;
(c) in the case of proceedings for revocation or cancellation of a Commu-
nity plant variety right: ECU 250.1995R1239 — EN — 01.07.1998 — 001.001 — 34