1995R1238 — EN — 12.02.2000 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COMMISSION REGULATION (EC) No 1238/95
of 31 May 1995
establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as
regards the fees payable to the Community Plant Variety Office
(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
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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COMMISSION REGULATION (EC) No 1238/95
of 31 May 1995
establishing implementing rules for the application of Council
Regulation (EC) No 2100/94 as regards the fees payable to the
Community Plant Variety Office
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Havingreg ard to the Treaty establishingthe European Community,
Having regard to Council Regulation (EC) No 2100/94 of 27 July 1994
on Community plant variety rights (the Basic Regulation)(1), and in
particular Article 113 thereof,
Whereas Regulation (EC) No 2100/94 is to be implemented by the
Community Plant Variety Office (the Office); whereas the revenue ofthe Office should in principle be sufficient to balance the budget of theOffice; whereas such revenues should be afforded by the fees to be paidfor the official acts set out in the Basic Regulation and in CommissionRegulation (EC) No 1239/95 of 31 May 1995 establishing imple-mentingrules for the application of Council Reg ulation (EC) No 2100/94 as regards proceedings before the Community Plant VarietyOffice(
2) (the Proceedings Regulation) as well as by annual fees
payable for the duration of a Community plant variety right;
Whereas a subsidy from the general budget of the European Communi-
ties may cover the expenditure on the initial runningphase of the Officefor the transitional period defined in Article 113 (3) (b) of the Regula-tion; whereas an extension of that period by one year is possible byvirtue of the same provision;
Whereas such extension of the transitional period should be considered
if sufficient experience has not been gained for setting reasonable levelsof fees ensuringthe principle of self-financingwhilst safeg uardingtheattractiveness of the Community system of plant variety protection;whereas such experience could only be gained by observing the numberof applications for a Community plant variety right, the costs paid to theExamination Offices and the actual duration of Community plantvariety rights granted;
Whereas the level of the fees should be based on the principles of sound
financial management within the Office, and in particular economy andcost-effectiveness;
Whereas, in the interests of a simplified handlingby the staff of the
Office, the fees should be not only laid down, but also charged and paidin the same currency unit as is used for the budget of the Office;
Whereas the application fee should be a uniform fee coveringonly the
processingof an application for a Community plant variety rig ht madein respect of any given plant species;
Whereas the 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 makingthe payment and the actualreceipt of such payment by the Office, in particular in the need for arapid recovery of costs already incurred by the Office on the one handand for the facilitatingof an effective filingof applications in the lig htof possibly longdistances between applicant and Office, on the other;
Whereas the total of the examination fees which are charged for a
technical examination should, in principle, balance the total fees to bepaid by the Office to all Examination Offices; whereas costs for themaintenance of the reference collection should not necessarily becovered entirely by the examination fees charged; whereas the level ofexamination fee should vary between three groups of plant species in
(1) OJ No L 227, 1. 9. 1994, p. 1.
(2) See page 37 of this Official Journal.
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the light of experience available from existing national arrangements forplant variety protection;
Whereas the annual fees for the duration of a Community plant variety
right should constitute an extra source of revenue for the Office, butshould,inter alia , cover costs relatingto the technical verification of
varieties after the grant of a Community plant variety right and, inconsequence, should follow the grouping established for the exam-ination fees;
Whereas the appeal fee should be uniform in order to cover the main
cost components relatingto appeal proceeding s, with the expection ofcosts relatingto a technical examination pursuant to Articles 55 and 56of the Basic Regulation or to any taking of evidence; whereas twodifferent dates for payment of the application fee should serve as anincentive to appellants to reconsider 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 processingby the Office, includingthetakingof 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 forexamination reports which already exist at the date of application andare not available to the Office, and for specific services rendered;
Whereas surcharges may be levied in order to reduce unnecessary costs
to the Office arisingfrom a lack of cooperation on the part of particularapplicants for, or holders of, Community plant variety rights;
Whereas in the light of Article 117 of the Basic Regulation, this
Regulation should enter into force as soon as possible;
Whereas the Administrative Council of the Office has been consulted;Whereas the provisions provided for in this Regulation are in accord-
ance with the opinion of the StandingCommittee on Plant VarietyRights,
HAS ADOPTED THIS REGULATION:
Article 1
Scope
1. Fees due to the Office, as provided for in the Basic Regulation and
the Proceedings Regulation, shall be charged in accordance with thisRegulation.
2. The fees due to the Office shall be laid down, charged and paid in
ecus.
3. Paragraphs 1 and 2 shall apply mutatis mutandis to any surcharge,
due to the Office.
4. Details of the fees which may be charged by authorities of
Member States by virtue of provisions of the Basic Regulation or thisRegulation shall be governed by the relevant national rules of theMember States concerned.
5. Where the President of the Office is empowered to take a decision
as to the amount of fees and the way in which they are to be paid, suchdecisions shall be published in the Official Gazette of the Office.
Article 2
General provisions
1. For each individual matter, a party to proceedings as specified in
the Proceedings Regulation shall be liable to pay fees or surcharges. Inthe case of several parties to proceedings acting in common or on
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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
relatingto proceeding s before the Office, includingprovisions as tolanguages, as laid down in the Basic Regulation and the ProceedingsRegulation, shall apply.
Article 3
Manner of payment
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 followingalternative
forms of payment in accordance with rules on workingmethods whichshall be established pursuant to Article 36 (1) (d) of the Basic Regula-tion:
(a) delivery or remittance of certified cheques which are made payable
in ecus to the Office;
(b) transfer in ecus to a giro account held by the Office; or
(c) payment into a charge account held in ecus with the Office.
Article 4
Date to be regarded as the date on which payment is received
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 onwhich the amount of the transfer referred to in Article 3 (1) is entered ina 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 theconditions the date to be regarded as the date on which the payment isreceived.
3. Where the payment is considered not to have been received by the
Office within the requisite time limit, such time limit shall be consid-ered to have been observed vis-à-vis the Office if sufficient documen-
tary evidence is produced within that time-limit to show that the personwho made the payment took necessary steps.
4. It shall be considered to be ‘necessary' within the meaningof
paragraph 3 if the person making the payment duly gave an order to abankingestablishment or a post office to transfer the amount of thepayment in ecus to a bank account held by the Office.
5. Documentary evidence shall be regarded as ‘sufficient'within the
meaning of paragraph 3 if an acknowledgement of provision of thetransfer order, issued by a bankingestablishment or a post office, isproduced.
Article 5
Name of the person making the payment and the purpose of
payment
1. A person makinga payment of fees or surcharg es shall indicate in
writinghis name and the purpose of such payment.
2. If the Office cannot establish the purpose of a payment, it shall
require the person havingmade the payment to inform it thereof inwritingwithin two months. If the purpose is not indicated within thatperiod, the payment shall be deemed not to have been made and shall berefunded to the person havingmade it.
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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 has been paid shall be refunded after anytime-limit for payment has expired. The Office may, however, wherethis is considered justified, overlook any small deficiencies, withoutprejudicingthe rig hts of the person makingthe payment.
Article 7
Application fee
1. The applicant for a Community plant variety right (the applicant)
shall pay an application fee of ECU ►
M1900◄for the processingof
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 date onwhich the application is filed 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 is considered 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 theBasic Regulation, a period of two weeks during which the formal dateof 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 theapplicant prior to the expiry of that period.
4. If the payment of the application fee is considered 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 if the application is accompanied by
sufficient documentary evidence that the steps necessary to effectpayment have been taken; Article 4 (5) shall apply mutatis mutandis .
6. As longas payment of the application fee is considered not to
have been received by the Office, it shall not publish the applicationconcerned and shall defer the technical examination.
Article 8
Fees relating to technical examination
1. Fees for arrang ingand carryingout the technical examination of a
variety beingthe subject of an application for a Community plantvariety right ‘examination fee'shall be paid in accordance with Annex Ifor 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 mustalso be examined; however, it shall not in any circumstances exceedECU 3 000.
2. The examination fee for the first growing period shall be due and
payable no later than ►
M1 ◄the closingdate 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 fees in the Official Gazette of the Office.
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5. In the case of an examination report on the results of a technicalexamination which has already been carried out, in accordance withArticle 27 of the ►
M1Proceedings Regulation ◄, prior to the date of
application under Article 51 of the Basic Regulation, an administrativefee shall be due within such time limit as the Office shall specify.
Article 9
Annual fee
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 theduration of a Community plant variety right (annual fee) as laid down inAnnex II.
2. The date for payment of the annual fee shall be the last day of the
calendar month followingthe calendar month in which the Communityplant variety right was granted, and in each subsequent year on thecorrespondingday.
3. The Office shall issue to the holder a request containingthe
subject of payment, the amount due, the date for payment, and informa-tion 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
Fees for processing specific requests
1. Fees for the processingof 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 begranted 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 followingentries into the Reg ister of
Community plant variety rights (register 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 as a security or as the
subject of rights in rem,o r
— any levy of execution as referred to in Article 24 of the Basic
Regulation: ECU 300;
(c) for a request for any entry in the Register of Applications for
Community plant variety rights or the Register of Community plantvariety rights, other than those referred to in (a) and (b) above: ECU100;
(d) for a request for determiningamount of costs pursuant to Article 85
(5) of the Regulation: ECU 100.
2. The fees referred to in paragraph 1 shall 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 Basic Regulation shallapply.
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Article 11
Appeal fee
1. The appellant shall pay an appeal fee of ECU 1 500 for the
processingof 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 remainingtwo-thirds of the appeal fee shall be due,upon request of the Office, within one month after remittal of the caseby 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 conditions laid down in Article 83 (4) of the Basic Regulation aremet.
4. Paragraph 1 shall not apply to the Commission or a Member State,
beingthe appellant ag ainst a decision taken under Article 29 (2) of theBasic Regulation.
Article 12
Fees laid down by the President of the Office
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 issuingcopies, certified or not, as in particular referred to in
Article 84 (3) of the Proceedings Regulation;
(c) fees in respect of the Official Gazette of the Office (Article 89 of
the Basic Regulation, Article 87 of the Proceedings Regulation) andany other publication ►
M1issued by the Office; and ◄
▼M1
(d) the administrative fee referred to in Article 82(2) of the Proceedings
Regulation.
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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.
Article 13
Surcharges
1. The Office may levy a surcharge to the application fee if it
establishes 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 differingfrom a denomination of the same variety; or
(b) an applicant for a Community plant variety right makes a new
proposal for a variety denomination unless he was required by theOffice to do so or unless he pursued an application for aCommunity plant variety right in accordance with Article 21 (3) ofthe Proceedings Regulation.
The Office shall not publish a proposal for variety denomination prior
to the payment of a surcharge levied in accordance with the provisionsof the first subparagraph.
2. The Office may levy a surcharge to the annual fee if it establishes
that:
(a) the holder has failed to pay the annual fee in accordance with
Article 9 (2) and (3); or
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(b) the variety denomination must be amended in the event of a prior
conflictingrig ht of a third party, as laid down in Article 66 (1) ofthe Basic Regulation.
3. The surcharges referred to in paragraphs 1 and 2 shall be levied in
accordance with the rules on workingmethods 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, and shallbe due and payable within one month of the date on which the Officeissues a request.
Article 14
Derogations
1. NotwithstandingArticle 7, the formal date of application assig ned
under Article 51 of the Basic Regulation shall remain valid in respect ofall applications filed in accordance with Article 116 (1) or (2) thereof ifsufficient evidence is produced on 30 September 1995 at the latest thatthe applicant for the Community plant variety right carried out the actsnecessary for payment of the application fee.
2. NotwithstandingArticle 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 the grantof a national plant variety right in accordance with Article 116 (3) ofthe Basic Regulation. Such administrative fee shall be due on 30November 1995 at the latest.
3. NotwithstandingArticle 8 (5), authorities before which proceed-
ings for the grant of a national plant variety right have been held maycharge the applicant for a Community plant variety right a fee formarkingavailable the relevant documents under the conditions laiddown in Article 93 (3) of the Proceedings Regulation. Such fee shall notexceed the fee charged in the Member State concerned for the transmis-sion of an examination report from a testingauthority in anothercountry; its payment shall be without prejudice to the payments to bemade pursuant to paragraphs 1 and 2.
4. NotwithstandingArticle 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.
Article 15
Entry into force
This Regulation shall enter into force on the day of its publication in the
Official Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable in
all Member States.
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ANNEX I
The examination fee due to be paid pursuant to Article 8 shall be as follows:
GroupA EUR 1 000
Group A covers the followingg enera or species:
Avena sativa L.,Beta vulgaris L. ssp.vulgarisvar.altissima Döll,Beta vulgaris
L. ssp.vulgarisvar.crassa(Alef.) Wittm, Brassica napus L.,Glycine max (L.)
Merril,Gossypium L.,Helianthus annuus L.,Hordeum vulgare L.sensu lato ,
Oryza sativa L.,Phalaris canariensis L.,Sorghum bicolor (L.) Moench,
Sorghum sudanense (Piper) Stapf., Sorghum bicolor (L.) Moench x Sorghum
sudanense (Piper) Stapf., Secale cereale L.,Solanum tuberosum L.,Triticum
aestivum L. emend. Fiori et Paol., Triticum durum Desf.,Triticum spelta L., X
Triticosecale Wittm.,Zea mays L.
GroupB EUR 800
Group B covers:
1. agricultural crops (including grasses), other than those covered by Group A;
and
2. the followingg enera or species:
Allium cepa L. var.cepaL.,Capsicum annuum L.,Cichorium endivia L.,
Citrullus lanatus (Thunb.) Matsum et. Nakai, Cucumis melo L.,Cucumis
sativusL.,Cucurbita pepo L.,Cucurbita moschata L. (Duch.) Duch. Ex.
Prior,Cucurbita maxima Duch.,Lactuca sativa L.,Lycopersicon lycoper-
sicum(L.) Karst. ex. Farw., Phaseolusvulgaris L.,Pisumsativum L. (partim),
Solanum melongena L.,Vicia faba L. (partim);
Alstroemeria L.,Anthurium Schott,Begonia-Elatior -Hybriden, Calibrachoa -
Hybriden,Chrysanthemum L.,Dianthus L.,Euphorbia pulcherrima Willd. ex
Klotzsch,FuchsiaL.,GerberaL.,Impatiens L.,Kalanchoe Adans.,LiliumL.,
Orchidaceae ,Pelargonium L’Hérit. ex Ait., PentasBenth.,Petunioa Juss.,
Rhododendron L.,RosaL.,Saintpualia H. Wendl., Spathiphyllum Schott.
GroupC EUR 700
Group C covers all genera or species, other than those covered by Group A or
Group B.
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ANNEX II
On the basis of the groups referred to in Annex I, the annual fee to be paid
pursuant to Article 9 shall be as follows.
(EUR)
Group
Year
A B C
1 400 400 300
2 600 500 400
3 800 600 500
4 and subsequent years 1 000 700 600