1995R1238 — EN — 30.03.2003 — 002.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COMMISSIONREGULATION(EC)No1238/95
of31May1995
establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as
regardsthefeespayabletotheCommunityPlantVarietyOffice
(OJ L 121, 1.6.1995, p. 31)
Amended by:
Official Journal
No page date
►M1Commission Regulation (EC) No 329/2000 of 11 February 2000 L 37 19 12.2.2000
►M2Commission Regulation (EC) No 569/2003 of 28 March 2003 L 82 13 29.3.2003
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).
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COMMISSIONREGULATION(EC)No1238/95
of31May1995
establishing implementing rules for the application of Council
Regulation (EC) No 2100/94 as regards the fees payable to 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(the Bas ic Regulation) (1), and in
particular Article 113 thereof,
WhereasRegulation (EC) No 2100/94 isto be implemented by the
Community Plant Variety Office (the Office); whereasthe revenue of
the Office should in principle be sufficient to balance the budget of
the Office; whereas such revenues should be afforded by the fees tobe paid for the official acts set out in the Basic Regulation and inCommission Regulation (EC) No 1239/95 of 31 May 1995 establishingimplementing rulesfor the application of Council Regulation (EC) No
2100/94 asregardsproceedingsbefore the Community Plant Variety
Office (
2) (the ProceedingsRegulation) aswell asby annual fees
payable for the duration of a Community plant variety right;
Whereas a subsidy from the general budget of the European Commu-
nitiesmay cover the expenditure on the initial running phas e of theOffice for the transitional period defined in Article 113 (3) (b) of theRegulation; whereas an extension of that period by one year is possibleby virtue of the same provision;
Whereas such extension of the transitional period should be considered
if sufficient experience has not been gained for setting reasonable
levels of fees ensuring the principle of self-financing whilst safe-
guarding the attractiveness of the Community system of plant varietyprotection; whereas such experience could only be gained by observingthe number of applicationsfor a Community plant variety right, thecosts paid to the Examination Offices and the actual duration of
Community plant variety rightsgranted;
Whereas the level of the fees should be based on the principles of
sound financial management within the Office, and in particular
economy and cost-effectiveness;
Whereas, in the interests of a simplified handling by the staff of the
Office, the fees should be not only laid down, but also charged andpaid in the same currency unit as is used for the budget of the Office;
Whereasthe application fee s hould be a uniform fee covering only the
processing of an application for a Community plant variety right madein respect of any given plant species;
Whereasthe time limit for the payment of the application fee under
Article 51 of the Basic Regulation should be considered as the periodbetween the acts necessary for making the payment and the actual
receipt of such payment by the Office, in particular in the need for a
rapid recovery of costs already incurred by the Office on the one handand for the facilitating of an effective filing of applicationsin the lightof possibly long distances between applicant and Office, on the other;
Whereasthe total of the examination feeswhich are charged for a tech-
nical examination should, in principle, balance the total fees to be paidby the Office to all Examination Offices; whereas costs for the mainte-
nance of the reference collection should not necessarily be covered
entirely by the examination feescharged; whereasthe level of exami-nation fee should vary between three groups of plant species in the1995R1238 — EN — 30.03.2003 — 002.001 — 2
(1) OJ No L 227, 1. 9. 1994, p. 1.
(2) See page 37 of thisOfficial Journal.
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light of experience available from existing national arrangements for
plant variety protection;
Whereasthe annual feesfor the duration of a Community plant variety
right should constitute an extra source of revenue for the Office, butshould, inter alia , cover costs relating to the technical verification of
varietiesafter the grant of a Community plant variety right and, inconsequence, should follow the grouping established for the examina-
tion fees;
Whereasthe appeal fee s hould be uniform in order to cover the main
cost components relating to appeal proceedings, with the expection ofcosts relating to a technical examination pursuant to Articles 55 and 56of the Basic Regulation or to any taking of evidence; whereas two
different dates for payment of the application fee should serve as an
incentive to appellantsto recons ider their appeal in the light of thedecisions taken by the Office pursuant to Article 70 (2) of the BasicRegulation;
Whereas other fees in respect of specific requests shall in principle
cover costs incurred in their processing by the Office, including the
taking of decisions on such requests;
Whereas to ensure flexibility in the management of costs, the President
of the Office should be empowered to lay down the fees payable for
examination reportswhich already exis t at the date of application and
are not available to the Office, and for specific services rendered;
Whereas surcharges may be levied in order to reduce unnecessary costs
to the Office arising from a lack of cooperation on the part of particularapplicantsfor, or holdersof, Community plant variety rights ;
Whereasin the light of Article 117 of the Bas ic Regulation, thisRegu-
lation should enter into force as soon as possible;
Whereas the Administrative Council of the Office has been consulted;
Whereasthe provis ionsprovided for in thisRegulation are in accor-
dance with the opinion of the Standing Committee on Plant VarietyRights,
HAS ADOPTED THIS REGULATION:
Article 1
Scope
1. Feesdue to the Office, asprovided for in the Bas ic Regulation
and the ProceedingsRegulation, s hall be charged in accordance withthisRegulation.
2. The feesdue to the Office s hall be laid down, charged and paid in
ecus.
3. Paragraphs1 and 2 s hall apply mutatis mutandis to any surcharge,
due to the Office.
4. Detailsof the feeswhich may be charged by authoritiesof
Member States by virtue of provisions of the Basic Regulation or thisRegulation shall be governed by the relevant national rules of theMember Statesconcerned.
5. Where the President of the Office is empowered to take a deci-
sion as to the amount of fees and the way in which they are to bepaid, such decisions shall be published in the Official Gazette of theOffice.
Article 2
General provisions
1. For each individual matter, a party to proceedingsass pecified in
the Proceedings Regulation shall be liable to pay fees or surcharges. Inthe case of several parties to proceedings acting in common or on1995R1238 — EN — 30.03.2003 — 002.001 — 3
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whose behalf a common course of action is pursued, each shall be
liable to such payment as joint debtor.
2. Unless otherwise provided in this Regulation, the provisions
relating to proceedingsbefore the Office, including provis ionsasto
languages, as laid down in the Basic Regulation and the Proceedings
Regulation, shall apply.
Article 3
Mannerofpayment
1. Fees and surcharges due to the Office shall be paid by transfer to
a bank account held by the Office.
2. The President of the Office may allow the following alternative
formsof payment in accordance with ruleson working methodswhichshall be established pursuant to Article 36 (1) (d) of the Basic Regula-
tion:
(a) delivery or remittance of certified chequeswhich are made payable
in ecusto the Office;
(b) transfer in ecus to a giro account held by the Office; or
(c) payment into a charge account held in ecuswith the Office.
Article 4
Datetoberegardedasthedateonwhichpaymentisreceived
1. The date on which a payment of fees and surcharges shall be
considered to have been received by the Office shall be the date on
which the amount of the transfer referred to in Article 3 (1) is enteredin a bank account held by the Office.
2. Where the President of the Office allows other forms of payment
in accordance with Article 3 (2), he shall simultaneously include in theconditionsthe date to be regarded asthe date on which the payment isreceived.
3. Where the payment iscons idered not to have been received by
the Office within the requisite time limit, such time limit shall be
considered to have been observed vis-à-vis the Office where sufficient
documentary evidence isproduced within that time limit to s how thatthe person making the payment duly gave an order to a banking estab-lishment or a post office to transfer the amount of the payment in euroto a bank account held by the Office within the time limit.
5. Documentary evidence shall be regarded as sufficient within themeaning of point 3 where an acknowledgement of provision of thetransfer order, issued by a banking establishment or a post office, isproduced. However, where the transfer ordered was a transfer using
the SWIFT electronic bank payment method, the acknowledgement of
provision of the transfer order shall take the form of a copy of theSWIFT report, stamped and signed by a duly authorised official of thebank or post office.
Article 5
Name of the person making the payment and the purpose of
payment
1. A person making a payment of fees or surcharges shall indicate in
writing his name and the purpose of such payment.
2. If the Office cannot establish the purpose of a payment, it shall
require the person having made the payment to inform it thereof inwriting within two months. If the purpose is not indicated within thatperiod, the payment shall be deemed not to have been made and shallbe refunded to the person having made it.1995R1238 — EN — 30.03.2003 — 002.001 — 4
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Article 6
Underpayment
A time-limit for payment of fees or surcharges shall, in principle, be
deemed to have been observed only if the full amount of the fee orsurcharge has been paid in due time. If the fees or surcharges are notpaid in full, the amount which hasbeen paid s hall be refunded after
any time-limit for payment hasexpired. The Office may, however,
where this is considered justified, overlook any small deficiencies,without prejudicing the rightsof the pers on making the payment.
Article 7
Applicationfee
1. The applicant for a Community plant variety right (the applicant)
shall pay an application fee of ECU ►
M1900◄for the processing
of the application under Article 113 (2) (a) of the Basic Regulation.
2. The applicant shall take the necessary steps for payment of the
application fee, in accordance with Article 3, prior to or on the dateon which the application isfiled at the Office direct or at one of thesub-offices established or national agencies designated, pursuant toArticle 30 (4) of the Basic Regulation; Article 4 (4) shall apply mutatis
mutandis .
3. If the payment of the application fee iscons idered not to have
been received at the same time as the application is received by theOffice, the Office shall specify, in accordance with Article 51 of the
Basic Regulation, a period of two weeks during which the formal date
of application, assigned in accordance with the aforesaid Article 51,shall not be affected; a new request for payment as provided for inArticle 83 (2) of the Basic Regulation shall not be issued to the appli-cant prior to the expiry of that period.
4. If the payment of the application fee iscons idered not to have
been received within the time limit specified pursuant to paragraph 3,the date of receipt of payment shall be treated as the date of applicationfor the purposes of Article 51 of the Basic Regulation.
5. Paragraph 4 shall not apply where the application is accompanied
by sufficient documentary evidence showing that the person makingthe payment duly gave an order to a banking establishment or a post
office to transfer the amount of the payment in euro to a bank account
held by the Office; Article 4 (5) shall apply mutatis mutandis .
6. Aslong aspayment of the application fee iscons idered not to
have been received by the Office, it shall not publish the applicationconcerned and shall defer the technical examination.
7. Where the application fee isreceived but the application isnot
valid under Article 50 of the basic Regulation, the Office shall retainEUR 300 of the application fee and refund the remainder when noti-
fying the applicant of the deficienciesfound in the application.
Article 8
Feesrelatingtotechnicalexamination
1. Feesfor arranging and carrying out the technical examination of a
variety being the subject of an application for a Community plant
variety right ‘examination fee’ shall be paid in accordance with Annex
I for each growing period started. In the case of varieties for whichmaterial with specific components has to be used repeatedly for theproduction of material, the examination fee laid down in Annex 1 shallbe due in respect of such variety and in respect of each of the compo-nents for which an official description is not available and which must1995R1238 — EN — 30.03.2003 — 002.001 — 5
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also be examined; however, it shall not in any circumstances exceed
ECU 3 000.
2. The examination fee for the first growing period shall be due and
payable no later than ►M1 ◄the closing date for
receipt of the material for the technical examination.
3. The examination fee for each subsequent growing period shall be
due and payable no later than one month prior to the beginning of suchperiod unless the Office decides otherwise.
4. The President of the Office shall publish the dates for payment of
the examination feesin the Official Gazette of the Office.
5. In the case of an examination report on the results of a technical
examination which hasalready been carried out, in accordance withArticle 27 of the ►
M1ProceedingsRegulation ◄, prior to the date
of application under Article 51 of the Basic Regulation, an administra-
tive fee shall be due within such time limit as the Office shall specify.
Article 9
Annualfee
1. The Office shall charge a holder of a Community plant variety
right (hereinafter referred to as‘the holder’) a fee for each year of the
duration of a Community plant variety right (annual fee) of EUR 300for the years2003 to 2005 and of EUR 435 for the year 2006 and thefollowing years.
2. Payment of the annual fee shall be due:
(a) in relation to the first year of the term of the Community plant
variety right, within 60 daysof date of the grant of the right; and
(b) in relation to subsequent years of the term of the Community plant
variety right, on the first day of the calendar month preceding the
month in which the anniversary of the date grant falls.
3. The Office shall issue to the holder a request containing the
subject of payment, the amount due, the date for payment, and infor-mation on the possibility of a surcharge pursuant to Article 13 (2) (a).
4. The Office shall not refund any payments which have been
effected in order to keep the Community plant variety right in force.
Article 10
Feesforprocessingspecific requests
1. Fees for the processing of a request, payable by the person
making such request, shall be as follows:
(a) for an application for a compulsory exploitation right, including
any entries in the Registers, an application for an exploitation right
to be granted by the Office pursuant to Article 100 (2) of the BasicRegulation, or a request to amend such exploitation rights, oncegranted, (compulsory licence fee), save for the Commission or aMember State in the circumstances referred to in Article 29 (2)
thereof: ECU 1 500;
(b) for a request for the following entries into the Register of Commu-
nity plant variety rights(regis ter fee):
— transfer of a Community plant variety right, contractual exploi-
tation right,
— identification of varieties as initial or essentially derived,— institution of actions in respect of claims referred to in Articles
98 (1), (2) and 99 of the Basic Regulation,
— a Community plant variety right given asa s ecurity or asthe
subject of rights in rem,o r
— any levy of execution asreferred to in Article 24 of the Bas ic
Regulation: ►
M2EUR 100 ◄;1995R1238 — EN — 30.03.2003 — 002.001 — 6
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(c) for a request for any entry in the Register of Applications for
Community plant variety rightsor the Regis ter of Community plantvariety rights, other than those referred to in (a) and (b) above:
ECU 100;
(d) for a request for determining amount of costs pursuant to Article 85
(5) of the Regulation: ECU 100.
2. The feesreferred to in paragraph 1 s hall be due and payable on
the date of receipt of the request to which they relate. Where the
payment isnot received in good time, Article 83 (2) of the Bas ic Regu-
lation shall apply.
3. Where a request for an entry referred to in point (b) or (c) of
paragraph 1 concernsmore than one application or regis tered right,applied for or held by the same person, only one fee shall be charged.
Article 11
Appealfee
1. The appellant shall pay an appeal fee of ECU 1 500 for the
processing of an appeal, as provided for in Article 113 (2) (c) of theBasic Regulation.
2. A third of the appeal fee shall be due on the date of receipt of the
appeal at the Office; Article 83 (2) of the Basic Regulation shall applyto that third. The remaining two-thirdsof the appeal fee s hall be due,upon request of the Office, within one month after remittal of the case
by the relevant body of the Office of the Board of Appeal.
3. A refund of the appeal fee already paid shall be ordered, in the
event of an interlocutory revision, under the authority of the Presidentof the Office and in other cases by the Board of Appeal, provided thatthe conditionslaid down in Article 83 (4) of the Bas ic Regulation aremet.
4. Paragraph 1 shall not apply to the Commission or a Member
State, being the appellant against a decision taken under Article 29 (2)
of the Basic Regulation.
Article 12
FeeslaiddownbythePresidentoftheOffice
1. The President of the Office shall fix the fees for the following
matters:
(a) the administrative fee referred to in Article 8 (5);
(b) fees for issuing copies, certified or not, as in particular referred to
in Article 84 (3) of the ProceedingsRegulation;
(c) feesin res pect of the Official Gazette of the Office (Article 89 of
the Basic Regulation, Article 87 of the Proceedings Regulation)and any other publication ►
M1issued by the Office; and ◄
(d) the administrative fee referred to in Article 82(2) of the Proceed-
ingsRegulation.
2. The President of the Office may decide to make the services
mentioned under ►M1paragraph 1(b), (c) and (d) ◄dependent on
an advance payment.1995R1238 — EN — 30.03.2003 — 002.001 — 7
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Article 13
Surcharges
1. The Office may levy a surcharge to the application fee if it estab-
lishes that:
(a) a proposed denomination cannot be approved, in accordance with
Article 63 of the Basic Regulation, by reason of its being identicalto a denomination of another variety or by reason of its differing
from a denomination of the same variety; or
(b) an applicant for a Community plant variety right makesa new
proposal for a variety denomination unless he was required by theOffice to do so or unless he pursued an application for a Commu-nity plant variety right in accordance with Article 21 (3) of the
ProceedingsRegulation.
The Office shall not publish a proposal for variety denomination prior
to the payment of a surcharge levied in accordance with the provisions
of the first subparagraph.
2. The Office may levy a surcharge to the annual fee if it establishes
that:
(a) the holder hasfailed to pay the annual fee in accordance with
Article 9 (2) and (3); or
(b) the variety denomination must be amended in the event of a prior
conflicting right of a third party, aslaid down in Article 66 (1) of
the Basic Regulation.
3. The surcharges referred to in paragraphs 1 and 2 shall be levied
in accordance with the rules on working methods to be establishedpursuant to Article 36 (1) (d) of the Basic Regulation, shall amount to20 % of the fee concerned, subject to a minimum of ECU 100, andshall be due and payable within one month of the date on which theOffice issues a request.
Article 14
Derogations
1. Notwithstanding Article 7, the formal date of application assigned
under Article 51 of the Basic Regulation shall remain valid in respectof all applicationsfiled in accordance with Article 116 (1) or (2)
thereof if sufficient evidence is produced on 30 September 1995 at the
latest that the applicant for the Community plant variety right carriedout the acts necessary for payment of the application fee.
2. Notwithstanding Article 8 (5), an administrative fee of ECU 100
shall be paid where a technical examination of the variety is carried outon the basis of the available findings from any proceedings for thegrant of a national plant variety right in accordance with Article 116(3) of the Basic Regulation. Such administrative fee shall be due on
30 November 1995 at the latest.
3. Notwithstanding Article 8 (5), authorities before which proceed-
ingsfor the grant of a national plant variety right have been held maycharge the applicant for a Community plant variety right a fee formarking available the relevant documentsunder the conditionslaiddown in Article 93 (3) of the ProceedingsRegulation. Such fee s hallnot exceed the fee charged in the Member State concerned for the
transmission of an examination report from a testing authority in
another country; itspayment s hall be without prejudice to the paymentsto be made pursuant to paragraphs 1 and 2.
4. Notwithstanding Article 8, a report fee of ECU 300 shall be due
in the case of an examination report referred to in Article 94 of theProceedings Regulation within such time limit as the Office shallspecify.1995R1238 — EN — 30.03.2003 — 002.001 — 8
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Article 15
Entryintoforce
ThisRegulation s hall enter into force on the day of itspublication in
theOfficial Journal of the European Communities .
ThisRegulation s hall be binding in itsentirety and directly applicable
in all Member States.1995R1238 — EN — 30.03.2003 — 002.001 — 9
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ANNEX I
Feesrelatingtotechnical examinationsasreferred toinArticle 8
The fee to be paid for the technical examination of a variety pursuant to Article
8 shall be determined, by reference to the year in which the growing period
begins and to the species group to which the variety belongs, in accordance
with the table:
(in EUR)
Cost groupFee in years
2003 to 2005Fee in year
2006 et seq.
Agriculturalgroup
1 Regular crops1 020 1 020
2 Vegetatively propagated crops1 190 1 190
3 Oilcrops1 020 1 0204 Grasses 1 020 1 0205 Beet crops1 020 1 020
6 Fibre crops1 020 1 020
7 Crops with special test arrangements 1 020 1 0208 Other agricultural crops1 020 1 020
Ornamentalgroup
9 Specieswith living reference collection,
greenhouse test, long cultivation1 190 1 190
9A Specieswith living reference collection,
greenhouse test, long cultivation and
special phytosanitary conditions1 200 2 040
10 Specieswith living reference collection,
greenhouse test, short cultivation1 105 1 105
11 Specieswith living reference collection,
outdoor test, long cultivation1 105 1 105
12 Specieswith living reference collection,
outdoor test, short cultivation1 105 1 105
13 Specieswithout living reference collec-
tion, greenhouse test, long cultivation1 200 1 360
13A Specieswithout living reference collec-
tion, greenhouse test, long cultivation
with a further propagation step1 200 2 040
14 Specieswithout living reference collec-
tion, greenhouse test, short cultivation1 105 1 105
15 Specieswithout living reference collec-
tion, outdoor test, long cultivation1 105 1 105
16 Specieswithout living reference collec-
tion, outdoor test, short cultivation1 105 1 105
17 New species, greenhouse test 1 190 1 190
18 New species, outdoor test 1 190 1 1901995R1238 — EN — 30.03.2003 — 002.001 — 10
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(in EUR)
Cost groupFee in years
2003 to 2005Fee in year
2006 et seq.
19 Seed-propagated species(not falling into
any other category)1 200 1 360
Vegetablegroup
20 Seed-propagated species, outdoor test 1 050 1 44521 Seed-propagated species, greenhouse
test1 200 1 955
22 Vegetatively propagated species,
outdoor test1 050 1 700
23 Vegetatively propagated species, green-
house test1 200 1 360
Fruitgroups
24 Trees1 050 1 615
24A Tree species with a large permanent
living reference collection1 050 2 380
25 Shrubs1 050 1 190
26 Vine habit 1 050 1 19027 Runners1 050 1 8701995R1238 — EN — 30.03.2003 — 002.001 — 11