1994R2100 — EN — 05.06.2003 — 002.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCILREGULATION(EC)No2100/94
of27July1994
onCommunityplantvariety rights
(OJ L 227, 1.9.1994, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 2506/95 of 25 October 1995 L 258 3 28.10.1995
►M2Council Regulation (EC) No 807/2003 of 14 April 2003 L 122 36 16.5.2003
▼B
COUNCILREGULATION(EC)No2100/94
of27July1994
onCommunityplantvariety rights
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
inparticular Article 235 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the European Parliament (2),
Whereas plant varieties pose specific problems as regards the industrial
property régime which may be applicable;
Whereas industrial property regimes for plant varieties have not been
harmonized at Community level and therefore continue to be regulated
by the legislation of the Member States, the content of which is not
uniform;
Whereas in such circumstances it is appropriate to create a Community
regime which, although co-existing with national regimes, allows forthe grant of industrial property rights valid throughout the Community;
Whereas it is appropriate that the implementation and application of
this Community regime should not be carried out by the authorities of
the Member States but by a Community Office with legal personality,the ‘Community Plan Variety Office’;
Whereas the system must also have regard to developments in plant
breeding techniques including biotechnology; whereas in order tostimulate the breeding and development of new varieties, there should
be improved protectioncompared with the presen t situationfor all
plant breeders without, however, unjustifiably impairing access toprotection generally or in the case of certain breeding techniques;
Whereas varieties of all botanical genera and species should be protect-
able;
Whereas protectable varieties must comply with internationally recog-
nized requirements, i.e. distinctness, uniformity, stability and novelty,
and also be designated by a prescribed variety denomination;
Whereas it is important to provide for a definition of a plant variety, in
order to ensure the proper functioning of the system;
Whereas this definition is not intended to alter definitions which may
have beenestablished inthe field of in tellectual property rights, espe-
cially the patent field, nor to interfere with or exclude from applicationlaws governing the protectability of products, including plants andplant material, or processes under such other industrial property rights;
Whereas it is however highly desirable to have a commondefin itionin
both fields; whereas therefore appropriate efforts at international level
should be supported to reach such a common definition;
Whereas for the grant of Community plant variety rights an assessment
of important characteristics relating to the variety is necessary;whereas, however, these characteristics need not necessarily relate totheir economic importance;
Whereas the system must also clarify to whom the right to Community
plant variety protection pertains; whereas in some cases it would be to
several persons in common, not just to one; whereas the formal entitle-ment to make applications must be regulated;1994R2100 — EN — 05.06.2003 — 002.001 — 2
(1) OJ No C 244, 28. 9. 1990, p. 1 and OJ No C 113, 23. 4. 1993, p. 7.
(2) OJ No C 305, 23. 11. 1992, p. 55 and OJ No C 67, 16. 3. 1992, p. 148.
▼B
Whereas the system must also define the term ‘holder’ used in this
Regulation; whereas that term ‘holder’ without further specification isused in this Regulation including in its Article 29 (5), it is intended to
be within the meaning of Article 13 (1) thereof;
Whereas, since the effect of a Community plant variety right should be
uniform throughout the Community, commercial transactions subject to
the holder's agreement must be precisely delimited; whereas the scopeof protection should be extended, compared with most nationalsystems, to certainmaterial of the variety to take accoun t of trade viacountries outside the Community without protection; whereas,
however, the introduction of the principle of exhaustion of rights must
ensure that the protection is not excessive;
Whereas in order to stimulate plant breeding, the system basically
confirms the internationally accepted rule of free access to protected
varieties for the development therefrom, and exploitation, of new vari-eties;
Whereas in certain cases where the new variety, although distinct, is
essentially derived from the initial variety, a certain form of depen-dency from the holder of the latter one should be created;
Whereas, the exercise of Community plant variety rights must be
subjected to restrictions laid down in provisions adopted in the publicinterest;
Whereas this includes safeguarding agricultural production; whereas
that purpose requires anauthorizationfor farmers to use the productof the harvest for propagation under certain conditions;
Whereas it must be ensured that the conditions are laid down at
Community level;
Whereas compulsory licensing should also be provided for under
certain circumstances in the public interest, which may include theneed to supply the market with material offering specified features, or
to maintain the incentive for continued breeding of improved varieties;
Whereas the use of prescribed variety denominations should be made
obligatory;
Whereas the Community plant variety right should in principle have a
life of at least 25 years and in the case of vine and tree species, at least
30 years; whereas other grounds for termination must be specified;
Whereas a Community plant variety right is an object of the holder's
property and its role in relation to the non-harmonized legal provisions
of the Member States, particularly of civil law, must therefore be clar-ified; whereas this applies also to the settlement of infringements andthe enforcement of entitlement to Community plant variety rights;
Whereas, it is necessary to ensure that the full application of the prin-
ciples of the Community plant variety rights system is not impaired bythe effects of other systems; whereas for this purpose certainrules, inconformity with Member States' existing international commitments,
are required concerning the relationship to other industrial property
rights;
Whereas it is indispensable to examine whether and to what extent the
conditions for the protection accorded in other industrial propertysystems, such as patents, should be adapted or otherwise modified forconsistency with the Community plant variety rights system; whereasthis, where necessary, should be laid down in balanced rules by addi-tional Community law;1994R2100 — EN — 05.06.2003 — 002.001 — 3
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Whereas the duties and powers of the Community Plant Variety Office,
including its Boards of Appeal, relating to the grant, termination orverification of Community plant variety rights and publications are as
far as possible to be modelled onrules developed for other systems, as
are also the Office's structure and Rules of Procedure, the collaborationwith the Commissionan d Member States particularly through anAdministrative Council, the involvement of Examination Offices intechnical examination and moreover the necessary budgetary measures;
Whereas the Office should be advised and supervised by the aforemen-
tioned Administrative Council, composed of representatives of Member
States and the Commission;
Whereas the Treaty does not provide, for the adoption of this Regula-
tion, powers other than those of Article 235;
Whereas this Regulation takes into account existing international
conventions such as the International Convention for the Protection ofNew Varieties of Plants (UPOV Convention), the Convention of theGrant of European Patents (European Patent Convention) or the Agree-ment on trade-related aspects of intellectual property rights, including
trade in counterfeit goods; whereas it consequently implements the
ban on patenting plant varieties only to the extent that the EuropeanPatent Convention so requires, i.e. to plant varieties as such;
Whereas this Regulation should be re-examined for amendment as
necessary in the light of future developments in the aforementionedConventions,
HAS ADOPTED THIS REGULATION:
PART ONE
GENERALPROVISIONS
Article 1
Communityplantvariety rights
A system of Community plant variety rights is hereby established as
the sole and exclusive form of Community industrial property rightsfor plant varieties.
Article 2
Uniformeffect ofCommunityplantvariety rights
Community plant variety rights shall have uniform effect within the
territory of the Community and may not be granted, transferred orterminated in respect of the abovementioned territory otherwise thanona un iform basis.
Article 3
Nationalpropertyrightsforplantvarieties
This Regulationshall be without prejudice to the right of the Member
States to grant national property rights for plant varieties, subject to theprovisions of Article 92 (1).
Article 4
CommunityOffice
For the purpose of the implementation of this Regulation a Community
Plant Variety Office, hereinafter referred to as ‘the Office’, is herebyestablished.1994R2100 — EN — 05.06.2003 — 002.001 — 4
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PART TWO
SUBSTANTIVELAW
CHAPTER I
CONDITIONS GOVERNING THE GRANT OF COMMUNITY
PLANTVARIETYRIGHTS
Article 5
ObjectofCommunityplantvarietyrights
1. Varieties of all botanical genera and species, including, inter alia ,
hybrids between genera or species, may form the object of Community
plant variety rights.
2. For the purpose of this Regulation, ‘variety’ shall be taken to
mean a plant grouping within a single botanical taxon of the lowest
known rank, which grouping, irrespective of whether the conditions
for the grant of a plant variety right are fully met, can be:
— defined by the expression of the characteristics that results from a
given genotype or combination of genotypes,
— distinguished from any other plant grouping by the expression of at
least one of the said characteristics, and
— considered as a unit with regard to its suitability for being propa-
gated unchanged.
3. A plant grouping consists of entire plants or parts of plants as far
as such parts are capable of producing entire plants, both referred to
hereinafter as ‘variety constituents’.
4. The expressionof the characteristics referred to inparagraph 2,
first indent, may be either invariable or variable between variety consti-tuents of the same kind provided that also the level of variation results
from the genotype or combination of genotypes.
Article 6
Protectable varieties
Community plant variety rights shall be granted for varieties that are:
(a) distinct;
(b) uniform;
(c) stable; and
(d) new.
Moreover, the variety must be designated by a denomination in accor-
dance with the provisions of Article 63.
Article 7
Distinctness
1. A variety shall be deemed to be distinct if it is clearly distin-
guishable by reference to the expression of the characteristics thatresults from a particular genotype or combination of genotypes, fromany other variety whose existence is a matter of common knowledge
on the date of application determined pursuant to Article 51.
2. The existence of another variety shall in particular be deemed to
be a matter of commonkn owledge if onthe date of applicationdeter-mined pursuant to Article 51:
(a) it was the object of a plant variety right or entered in an official
register of plant varieties, in the Community or any State, or inany intergovernmental organization with relevant competence;
(b) an application for the granting of a plant variety right in its respect
or for its entering in such an official register was filed, providedthe application has led to the granting or entering in the meantime.1994R2100 — EN — 05.06.2003 — 002.001 — 5
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The implementing rules pursuant to Article 114 may specify further
cases as examples which shall be deemed to be a matter of commonknowledge.
Article 8
Uniformity
A variety shall be deemed to be uniform if, subject to the variation that
may be expected from the particular features of its propagation, it issufficiently uniform in the expression of those characteristics which
are included in the examination for distinctness, as well as any others
used for the variety description.
Article 9
Stability
A variety shall be deemed to be stable if the expressionof the charac-
teristics which are included in the examination for distinctness as well
as any others used for the variety description, remain unchanged afterrepeated propagationor, inthe case of a particular cycle of propaga-tion, at the end of each such cycle.
Article 10
Novelty
1. A variety shall be deemed to be new if, at the date of application
determined pursuant to Article 51, variety constituents or harvestedmaterial of the variety have not been sold or otherwise disposed of toothers, by or with the consent of the breeder within the meaning of
Article 11, for purposes of exploitationof the variety:
(a) earlier than one year before the abovementioned date, within the
territory of the Community;
(b) earlier thanfour years or, inthe case of trees or of vin es, earlier
thansix years before the said date, outside the territory of theCommunity.
2. The disposal of variety constituents to an official body for statu-
tory purposes, or to others onthe basis of a con tractual or other legal
relationship solely for production, reproduction, multiplication, condi-
tioning or storage, shall not be deemed to be a disposal to otherswithin the meaning of paragraph 1, provided that the breeder preservesthe exclusive right of disposal of these and other variety constituents,and no further disposal is made. However, such disposal of variety
constituents shall be deemed to be a disposal in terms of paragraph 1
if these constituents are repeatedly used in the production of a hybridvariety and if there is disposal of variety constituents or harvestedmaterial of the hybrid variety.
Likewise, the disposal of variety constituents by one company or firm
within the meaning of the second paragraph of Article 58 of the Treatyto another of such companies or firms shall not be deemed to be a
disposal to others, if one of them belongs entirely to the other or if
both belong entirely to a third such company or firm, provided nofurther disposal is made. This provisionshall n ot apply inrespect ofcooperative societies.
3. The disposal of variety constituents or harvested material of the
variety, which have beenproduced from plan ts grownfor the purposesspecified in Article 15 (b) and (c) and which are not used for further
reproduction or multiplication, shall not be deemed to be exploitation
of the variety, unless reference is made to the variety for purposes ofthat disposal.
Likewise, no account shall be taken of any disposal to others, if it
either was due to, or in consequence of the fact that breeder haddisplayed the variety at anofficial or officially recogn ized exhibitionwithin the meaning of the Convention on International Exhibitions, or1994R2100 — EN — 05.06.2003 — 002.001 — 6
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at anexhibitionina Member State which was officially recogn ized as
equivalent by that Member State.
CHAPTER II
PERSONSENTITLED
Article 11
Entitlement toCommunityplantvariety rights
1. The personwho bred, or discovered an d developed the variety, or
his successor intitle, both — the personan d his successor — referred
to hereinafter as ‘the breeder’, shall be entitled to the Community plantvariety right.
2. If two or more persons bred, or discovered and developed the
variety jointly, entitlement shall be vested jointly in them or theirrespective successors intitle. This provisionshall also apply to two ormore persons in cases where one or more of them discovered the
variety and the other or the others developed it.
3. Entitlement shall also be invested jointly in the breeder and any
other person or persons, if the breeder and the other person or persons
have agreed to joint entitlement by written declaration.
4. If the breeder is an employee, the entitlement to the Community
plant variety right shall be determined in accordance with the nationallaw applicable to the employment relationship in the context of whichthe variety was bred, or discovered and developed.
5. Where entitlement to a Community plant variety right is vested
jointly in two or more persons pursuant to paragraphs 2 to 4, one or
more of them may empower the others by writtendeclarationto such
effect to claim entitlement thereto.
Article 12
Entitlement to file an application for a Community plant variety
right
1. An application for a Community plant variety right may be filed
by any natural or legal person, or any body ranking as a legal person
under the law applicable to that body, provided they are:
(a) nationals of one of the Member States or nationals of a member of
the Union for the Protection of New Varieties of Plants within themeaning of Article 1 (xi) of the Act of 1991 of the InternationalConvention for the Protection of New Varieties of Plants, or aredomiciled or have their seat or anestablishmen t insuch a State;
(b) nationals of any other State who do not meet the requirements laid
downin(a) inrespect of domicile, seat or establishmen t, inso faras the Commission, after obtaining the opinion of the Administra-tive Council referred to in Article 36, has so decided. Such adecision may be made dependent on the other State affording
protection for varieties of the same botanical taxon to nationals of
all the Member States, which corresponds to the protectionafforded pursuant to this Regulation; the Commission shall estab-lish whether this condition is met.
2. An application may be filed jointly by two or more such persons.
CHAPTER III
EFFECTSOFCOMMUNITYPLANTVARIETYRIGHTS
Article 13
Rights of the holder of a Community plant variety right and
prohibitedacts
1. A Community plant variety right shall have the effect that the
holder or holders of the Community plant variety right, hereinafter1994R2100 — EN — 05.06.2003 — 002.001 — 7
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referred to as ‘the holder’, shall be entitled to effect the acts set out in
paragraph 2.
2. Without prejudice to the provisions of Articles 15 and 16, the
following acts in respect of variety constituents, or harvested materialof the protected variety, both referred to hereinafter as ‘material’, shall
require the authorizationof the holder:
(a) productionor reproduction(multiplication );
(b) conditioning for the purpose of propagation;
(c) offering for sale;
(d) selling or other marketing;
(e) exporting from the Community;
(f) importing to the Community;
(g) stocking for any of the purposes mentioned in (a) to (f).
The holder may make his authorization subject to conditions and
limitations.
3. The provisions of paragraph 2 shall apply in respect of harvested
material only if this was obtained through the unauthorized use of
variety constituents of the protected variety, and unless the holder hashad reasonable opportunity to exercise his right in relation to the saidvariety constituents.
4. In the implementing rules pursuant to Article 114, it may be
provided that inspecific cases the provision s of paragraph 2 of thisArticle shall also apply inrespect of products obtain ed directly frommaterial of the protected variety. They may apply only if such products
were obtained through the unauthorized use of material of the protected
variety, and unless the holder has had reasonable opportunity to exer-cise his right inrelationto the said material. To the exten t that theprovisions of paragraph 2 apply to products directly obtained, theyshall also be considered to be ‘material’.
5. The provisions of paragraphs 1 to 4 shall also apply in relation to:
(a) varieties which are essentially derived from the variety in respect
of which the Community plant variety right has been granted,where this variety is not itself an essentially derived variety;
(b) varieties which are not distinct in accordance with the provisions of
Article 7 from the protected variety; and
(c) varieties whose productionrequires the repeated use of the
protected variety.
6. For the purposes of paragraph 5 (a), a variety shall be deemed to
be essentially derived from another variety, referred to hereinafter as‘the initial variety’ when:
(a) it is predominantly derived from the initial variety, or from a
variety that is itself predominantly derived from the initial variety;
(b) it is distinct in accordance with the provisions of Article 7 from the
initial variety; and
(c) except for the differences which result from the act of derivation, it
conforms essentially to the initial variety in the expression of thecharacteristics that results from the genotype or combination ofgenotypes of the initial variety.
7. The implementing rules pursuant to Article 114 may specify
possible acts of derivation which come at least under the provisions of
paragraph 6.
8. Without prejudice to Article 14 and 29, the exercise of the rights
conferred by Community plant variety rights may not violate any
provisions adopted on the grounds of public morality, public policy orpublic security, the protection of health and life of humans, animals orplants, the protection of the environment, the protection of industrial orcommercial property, or the safeguarding of competition, of trade or ofagricultural production.1994R2100 — EN — 05.06.2003 — 002.001 — 8
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Article 14
DerogationfromCommunityplantvariety right
1. Notwithstanding Article 13 (2), and for the purposes of safe-
guarding agricultural production, farmers are authorized to use for
propagating purposes in the field, on their own holding the product ofthe harvest which they have obtained by planting, on their ownholding, propagating material of a variety other than a hybrid orsynthetic variety, which is covered by a Community plant variety right.
2. The provisions of paragraph 1 shall only apply to agricultural
plant species of:
(a) Fodder plants:
Cicer arietinum L. — Chickpea milkvetch
Lupinus luteus L. — Yellow lupinMedicago sativa L. — LucernePisum sativum L. (partim) — Field peaTrifolium alexandrinum L. — Berseem/Egyptian cloverTrifolium resupinatum L. — Persian cloverVicia faba — Field beanVicia sativa L. — Commonvetch
and, in the case of Portugal, Lolium multiflorum lam — Italian
rye-grass
(b) Cereals:
Avena sativa — Oats
Hordeum vulgare L. — BarleyOryza sativa L. — RicePhalaris canariensis L. — Canary grassSecale cereale L. — RyeX Triticosecale Wittm. — TriticaleTriticium aestivum L. emend. Fiori et Paol. — WheatTriticum durum Desf. — Durum wheatTriticum spelta L. — Spelt wheat
(c) Potatoes:
Solanum tuberosum — Potatoes
(d) Oil and fibre plants:
Brassica napus L. (partim) — Swede rape
Brassica rapa L. (partim) — Turnip rapeLinum usitatissimum — linseed with the exclusion of flax.
3. Conditions to give effect to the derogation provided for in para-
graph 1 and to safeguard the legitimate interests of the breeder and of
the farmer, shall be established, before the entry into force of this
Regulation, in implementing rules pursuant to Article 114, on the basisof the following criteria:
— there shall be no quantitative restriction of the level of the farmer's
holding to the extent necessary for the requirements of the holding,
— the product of the harvest may be processed for planting, either by
the farmer himself or through services supplied to him, withoutprejudice to certainrestriction s which Member States may establishregarding the organization of the processing of the said product ofthe harvest, inparticular inorder to en sure iden tity of the product
entered for processing with that resulting from processing,
— small farmers shall not be required to pay any remuneration to the
holder; small farmers shall be considered to be:
— inthe case of those of the plan t species referred to inparagraph
2 of this Article to which Council Regulation (EEC) No 1765/1994R2100 — EN — 05.06.2003 — 002.001 — 9
▼B
92 of 30 June 1992 establishing a support system for producers
of certainarable crops (1) applies, farmers who do not grow
plants on an area bigger than the area which would be needed
to produce 92 tonnes of cereals; for the calculation of the area,
Article 8 (2) of the aforesaid Regulationshall apply,
— inthe case of other plan t species referred to inparagraph 2 of
this Article, farmers who meet comparable appropriate criteria,
— other farmers shall be required to pay anequitable remun erationto
the holder, which shall be sensibly lower than the amount charged
for the licensed production of propagating material of the same
variety inthe same area; the actual level of this equitable remun era-tion may be subject to variation over time, taking into account theextent to which use will be made of the derogation provided for inparagraph 1 in respect of the variety concerned,
— monitoring compliance with the provisions of this Article or the
provisions adopted pursuant to this Article shall be a matter of
exclusive responsibility of holders; in organizing that monitoring,they may not provide for assistance from official bodies,
— relevant information shall be provided to the holders on their
request, by farmers and by suppliers of processing services; relevantinformation may equally be provided by official bodies involved in
the monitoring of agricultural production, if such information has
been obtained through ordinary performance of their tasks, withoutadditional burden or costs. These provisions are without prejudice,in respect of personal data, to Community and national legislationon the protection of individuals with regard to the processing andfree movement of personal data.
Article 15
LimitationoftheeffectsofCommunityplantvariety rights
Limitation of the effects of Community plant variety rights
(a) acts done privately and for non-commercial purposes;
(b) acts done for experimental purposes;
(c) acts done for the purpose of breeding, or discovering and devel-
oping other varieties;
(d) acts referred to inArticle 13 (2) to (4), inrespect of such other
varieties, except where the provisions of Article 13 (5) apply, orwhere the other variety or the material of this variety comes underthe protection of a property right which does not contain a compar-
able provision; and
(e) acts whose prohibitionwould violate the provision s laid downin
Articles 13 (8), 14 or 29.
Article 16
ExhaustionofCommunityplantvarietyrights
The Community plant variety right shall not extend to acts concerning
any material of the protected variety, or of a variety covered by the
provisions of Article 13 (5), which has been disposed of to others by
the holder or with his consent, in any part of the Community, or anymaterial derived from the said material, unless such acts:
(a) involve further propagation of the variety in question, except where
such propagation was intended when the material was disposed of;
or
(b) involve an export of variety constituents into a third country which
does not protect varieties of the plant genus or species to which the
variety belongs, except where the exported materials is for finalconsumption purposes.1994R2100 — EN — 05.06.2003 — 002.001 — 10
(1) OJ No L 181, 1. 7. 1992, p. 12. Regulationas last amen ded by Regulation
(EEC) No 1552/93 (OJ No L 154, 25. 6. 1993, p. 19).
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Article 17
Useofvarietydenominations
1. Any person who, within the territory of the Community, offers or
disposes of to others for commercial purposes variety constituents of aprotected variety, or a variety covered by the provisions of Article 13
(5), must use the variety denomination designated pursuant to Article
63; where it is used in writing, the variety denomination shall bereadily distinguishable and clearly legible. If a trade mark, trade nameor similar indication is associated with the designated denomination,this denomination must be easily recognizable as such.
2. Any person effecting such acts in respect of any other material of
the variety, must inform of that denomination in accordance with other
provisions in law or if a request is made by an authority, by thepurchaser or by any other person having a legitimate interest.
3. Paragraphs 1 and 2 shall apply even after the termination of the
Community plant variety right.
Article 18
Limitationoftheuseofvariety denominations
1. The holder may not use any right granted in respect of a designa-
tion that is identical with the variety denomination to hamper the freeuse of that denomination in connection with the variety, even after thetermination of the Community plant variety right.
2. A third party may use a right granted in respect of a designation
that is identical wih the variety denomination to hamper the free use of
that denomination only if that right was granted before the varietydenomination was designated pursuant to Article 63.
3. Where a variety is protected by a Community plant variety right
or, in a Member State or in a Member of the International Union forthe Protection of New Varieties of Plants by a national property right,neither its designated denomination or any designation which might be
confused with it can be used, within the territory of the Community, in
connection with another variety of the same botanical species or aspecies regarded as related pursuant to the publication made in accor-dance with Article 63 (5), or for material of such variety.
CHAPTER IV
DURATION AND TERMINATION OF COMMUNITY PLANT
VARIETYRIGHTS
Article 19
DurationofCommunityplantvariety rights
1. The term of the Community plant variety right shall run until the
end of the 25th calendar year or, in the case of varieties of vine andtree species, until the end of the 30th calendar year, following theyear of grant.
2. The Council, acting by qualified majority on proposal from the
Commission, may, in respect of specific genera or species, provide for
anexten sionof these terms up to a further five years.
3. A Community plant variety right shall lapse before the expiry of
the terms laid downinparagraph 1 or pursuan t to paragraph 2, if theholder surrenders it by sending a written declaration to such effect tothe Office, and with effect from the day following the day on whichthe declarationis received by the Office.1994R2100 — EN — 05.06.2003 — 002.001 — 11
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Article 20
NullityofCommunityplantvariety rights
1. The Office shall declare the Community plant variety right null
and void if it is established:
(a) that the conditions laid down in Articles 7 or 10 were not complied
with at the time of the Community plant variety right; or
(b) that where the grant of the Community plant variety right has been
essentially based upon information and documents furnished by theapplicant, the conditions laid down in Articles 8 and 9 were notcomplied with at the time of the grant of the right; or
(c) that the right has been granted to a person who is not entitled to it,
unless it is transferred to the person who is so entitled.
2. Where the Community plant variety right is declared null and
void, it shall be deemed not to have had, as from the outset, the effectsspecified inthis Regulation .
Article 21
CancellationofCommunityplantvariety rights
1. The Office shall cancel the Community plant variety right with
effect in futurum if it is established that the conditions laid down in
Article 8 or 9 are no longer complied with. If it is established that these
conditions were already no longer complied with from a point in timeprior to cancellation, cancellation may be made effective as from thatjuncture.
2. The Office may cancel a Community plant variety right with
effect in futurum if the holder, after being requested to do so, andwithina time limit specified by the Office:
(a) has not fulfilled an obligation pursuant to Article 64 (3); or
(b) inthe case referred to inArticle 66, does n ot propose an other
suitable variety denomination; or
(c) fails to pay such fees as may be payable to keep the Community
plant variety right in force; or
(d) either as the initial holder or as a successor in title as a result of a
transfer pursuant to Article 23, no longer satisfies the conditions
laid downinArticles 12 an d 82.
CHAPTER V
COMMUNITY PLANT VARIETY RIGHTS AS OBJECTS OF
PROPERTY
Article 22
Assimilationwithnationallaws
1. Save where otherwise provided inArticles 23 to 29, a Commu-
nity plant variety right as an object of property shall be regarded inall respects, and for the entire territory of the Community, as a corre-sponding property right in the Member State in which:
(a) according to the entry in the Register of Community Plant Variety
Rights, the holder was domiciled or had his seat or anestablish-ment on the relevant date; or
(b) if the conditions laid down in subparagraph (a) are not fulfilled, the
first-mentioned procedural representative of the holder, as indicatedinthe said Register, was domiciled or had his seat or anestablish-
ment on the date of registration.
2. Where the conditions laid down in paragraph 1 are not fulfilled,
the Member State referred to inparagraph 1 shall be the Member Stateinwhich the seat of the Office is located.1994R2100 — EN — 05.06.2003 — 002.001 — 12
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3. Where domiciles, seats or establishments in two or more Member
States are entered in respect of the holder or the procedural representa-tives inthe Register referred to inparagraph 1, the first-men tion ed
domicile or seat shall apply for the purposes of paragraph 1.
4. Where two or more persons are entered in the Register referred to
in paragraph 1 as joint holders, the relevant holder for the purposes ofapplying paragraph 1 (a) shall be the first joint holder taken in order ofentry in the Register who fulfils the conditions. Where none of the jointholders fulfils the conditions laid down in paragraph 1 (a), paragraph 2
shall be applicable.
Article 23
Transfer
1. A Community plant variety right may be the object of a transfer
to one or more successors in title.
2. Transfer of a Community plant variety right by assignment can be
made only to successors who comply with the conditions laid down inArticle 12 and 82. It shall be made in writing and shall require thesignature of the parties to the contract, except when it is a result of ajudgement or of any other acts terminating court proceedings. Other-
wise it shall be void.
3. Save as otherwise provided inArticle 100, a tran sfer shall have
no bearing on the rights acquired by third parties before the date oftransfer.
4. A transfer shall not take effect for the Office and may not be
citedvis-à-vis third parties unless documentary evidence thereof as
provided for in the implementing rules is provided and until it has
been entered in the Register of Community Plant Variety Rights. A
transfer that has not yet been entered in the Register may, however,be citedvis-à-vis third parties who have acquired rights after the date
of transfer but who knew of the transfer at the date on which theyacquired those rights.
Article 24
Levyofexecution
A Community plant variety right may be levied in execution and be the
subject of provisional, including protective, measures within the
meaning of Article 24 of the Convention on Jurisdiction and the Enfor-
cement of Judgments in Civil and Commercial Matters, signed inLugano on 16 September 1988, hereinafter referred to as the ‘LuganoConvention’.
Article 25
Bankruptcyorlikeproceedings
Until such time as common rules for the Member States in this field
enter into force, the only Member State in which a Community plantvariety right may be involved in bankruptcy or like proceedings shallbe that in which such proceedings are first brought within the meaning
of national law or of conventions applicable in this field.
Article 26
The application for a Community plant variety right as an object
ofproperty
Articles 22 to 25 shall apply to applications for Community plant
variety rights. Concerning such applications, the references made inthose Articles to the Register of Community Plant Variety Rights shallbe regarded as references to the Register of Application for CommunityPlant Variety Rights.1994R2100 — EN — 05.06.2003 — 002.001 — 13
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Article 27
Contractualexploitationrights
1. Community plant variety rights may form in full or in part the
subject of contractually granted exploitation rights. Exploitation rightsmay be exclusive or non-exclusive.
2. The holder may invoke the rights conferred by the Community
plant variety right against a person enjoying the right of exploitationwho contravenes any of the conditions or limitations attached to hisexploitationright pursuan t to paragraph 1.
Article 28
Jointholdership
Articles 22 to 27 shall apply mutatis mutandis in the event of joint
holdership of a Community plant variety right in proportion to therespective share held, where such shares have beendetermin ed.
Article 29
Compulsoryexploitation right
1. Compulsory exploitation rights shall be granted to one or more
persons by the Office, on application by that person or those persons,
but only on grounds of public interest and after consulting the Admin-
istrative Council referred to in Article 36.
2. Onapplicationby a Member State, by the Commissionor by an
organization set up at Community level and registered by the Commis-
sion, a compulsory exploitation right may be granted, either to a
category of persons satisfying specific requirements, or to anyone inone or more Member States or throughout the Community. It may begranted only on grounds of public interest and with the approval ofthe Administrative Council.
3. The Office shall, when granting the compulsory exploitation
right, stipulate the type of acts covered and specify the reasonableconditions pertaining thereto as well as the specific requirementsreferred to in paragraph 2. The reasonable conditions shall take intoaccount the interests of any holder of plant variety rights who would
be affected by the grant of the compulsory exploitation right. The
reasonable conditions may include a possible time limitation, thepayment of an appropriate royalty as equitable remuneration to theholder, and may impose certain obligations on the holder, the fulfil-ment of which are necessary to make use of the compulsoryexploitationright.
4. On the expiry of each one-year period after the grant of the
compulsory exploitation right and within the aforementioned possibletime limitation, any of the parties to proceedings may request that thedecision on the grant of the compulsory exploitation right be cancelled
or amended. The sole grounds for such a request shall be that the
circumstances determining the decision taken have in the meantimeundergone change.
5. On application, the compulsory exploitation right shall be granted
to the holder inrespect of anessen tially derived variety if the criteria
set out in paragraph 1 are met. The reasonable conditions referred to in
paragraph 3 shall include the payment of an appropriate royalty asequitable remuneration to the holder of the initial variety.
6. The implementing rules pursuant to Article 114 may specify
certaincases as examples of public in terest referred to inparagraph 1
and moreover lay down details for the implementation of the provisionsof the above paragraphs.
7. Compulsory exploitation rights may not be granted by Member
States in respect of a Community plant variety right.1994R2100 — EN — 05.06.2003 — 002.001 — 14
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PART THREE
THECOMMUNITYPLANTVARIETYOFFICE
CHAPTER I
GENERALPROVISIONS
Article 30
Legalstatus,sub-offices
1. The Office shall be a body of the Community. It shall have legal
personality.
2. Ineach of the Member States, the Office shall en joy the most
extensive legal capacity accorded to legal persons under their laws. It
may, inparticular, acquire or dispose of movable an d immovable prop-
erty and may be a party to legal proceedings.
3. The Office shall be represented by its President.
4. With the consent of the Administrative Council referred to in
Article 36, the Office may entrust national agencies with the exerciseof specific administrative functions of the Office or establish its ownsub-offices for that purpose inthe Member States, subject to theirconsent.
Article 31
Staff
1. The Staff Regulations of Officials of the European Communities,
the Conditions of Employment of Other Servants of the EuropeanCommunities and the rules adopted jointly by the institutions of theEuropeanCommun ities for purposes of the applicationof those Staff
Regulations and Conditions of Employment shall apply to the staff of
the Office, without prejudice to the applicationof Article 47 to themembers of the Board of Appeal.
2. Without prejudice to Article 43, the powers conferred on the
appointing authority by the Staff Regulations, and by the Conditions
of Employment of Other Servants, shall be exercised by the Office inrespect of its ownstaff.
Article 32
Privileges andimmunities
The Protocol on the Privileges and Immunities of the European
Communities shall apply to the Office.
Article 33
Liability
1. The contractual liability of the Office shall be governed by the
law applicable to the contract in question.
2. The Court of Justice of the EuropeanCommun ities shall have
jurisdiction to give judgment pursuant to any arbitration clause
contained in a contract concluded by the Office.
3. In the case of non-contractual liability, the Office shall, in accor-
dance with the general principles common to the laws of the Member
States, make good any damage caused by its departments or by itsservants in the performance of their duties.
4. The Court of Justice shall have jurisdictionindisputes relatin g to
compensation for the damage referred to in paragraph 3.
5. The personal liability of its servants towards the Office shall be
governed by the provisions laid down in the Staff Regulations orConditions of Employment applicable to them.1994R2100 — EN — 05.06.2003 — 002.001 — 15
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Article 34
Languages
1. The provisions laid down in Regulation No 1 of 15 April 1958
determining the languages to be used in the European EconomicCommunity (
1), shall apply regarding the Office.
2. Applications to the Office, the documents required to process
such applications and all other papers submitted shall be filed in one
of the official languages of the European Communities.
3. Parties to proceedings before the Office as specified in the imple-
menting rules pursuant to Article 114, shall be entitled, to conductwritten and oral proceedings in any official language of the EuropeanCommunities with translation and, in the case of hearings, simulta-neous interpretation, at least into any other of the official languages of
the European Communities chosen by any other party to proceedings.
The exercise of these rights does not imply specific charges for theparties to proceedings.
4. The translation services required for the functioning of the Office
are in principle provided by the Translation Centre of the Bodies of theUnion.
Article 35
DecisionsoftheOffice
1. Decisions of the Office shall, provided they do not have to be
made by the Board of Appeal pursuant to Article 72, be taken by orunder the authority of the President of the Office.
2. Subject to paragraph 1, decisions pursuant to Articles 20, 21, 29,
59, 61, 62, 63, 66 or 100 (2) shall be takenby a Committee of threemembers of the Office's staff. The qualifications of the members of
such Committee, the powers of individual members in the preparatory
phase of the decisions, the voting conditions and the role of the Presi-dent in respect of such Committee shall be determined in theimplementing rules pursuant to Article 114. Otherwise, the membersof such Committee, in making their decisions, shall not be bound by
any instructions.
3. Decisions of the President, other than those specified in paragraph
2, if not taken by the President, may be taken by a member of theOffice's staff to whom the power to do so has beendelegated pursuan tto Article 42 (2) (h).
CHAPTER II
THEADMINISTRATIVECOUNCIL
Article 36
Creationandpowers
1. An Administrative Council is hereby set up, attached to the
Office. In addition to the powers assigned to the Administrative
Council by other provisions of this Regulation, or by the provisionsreferred to inArticles 113 an d 114, it shall have the powers inrelationto the Office defined below:
(a) It shall advise onmatters for which the Office is respon sible, or
issue general guidelines in this respect.
(b) It shall examine the management report of the President, and shall
moreover monitor the Office's activities, on the basis of that exam-ination and any other information obtained.1994R2100 — EN — 05.06.2003 — 002.001 — 16
(1) OJ No 17, 6. 10. 1958, p. 385/58. Regulationas last amen ded by the 1985
Act of Accession.
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(c) It shall, on a proposal from the Office, either determine the number
of Committees referred to inArticle 35, the work allocationan d theduration of their respective function, or issue general guidelines in
this respect.
(d) It may establish rules onworkin g methods of the Office.
(e) It may issue test guidelines pursuant to Article 56 (2).
2. Moreover the Administrative Council:
— may deliver opinions to, and require information from the Office or
the Commission, where it considers that this is necessary,
— may forward to the Commission, with or without amendments, the
drafts placed before it pursuant to Article 42 (2) (g), or its owndraft amendments to this Regulation, to the provisions referred toin Articles 113 and 114 or to any other rules relating to Community
plant variety rights,
— shall be consulted pursuant to Articles 113 (4) and 114 (2),— shall carry out its functions relating the Office's budget pursuant to
Articles 109, 111 and 112.
Article 37
Composition
1. The Administrative Council shall be composed of one representa-
tive of each Member State and one representative of the Commission
and their alternates.
2. The members of the Administrative Council may, subject to the
provisions of its rules of procedure, be assisted by advisers or experts.
Article 38
Chairmanship
1. The Administrative Council shall elect a Chairman and a Deputy
Chairmanfrom amon g its members. The Deputy Chairmanshall ex
officioreplace the Chairman in the event of him being prevented from
attending to his duties.
2. The terms of office of the Chairmanor Deputy Chairmanshall
expire when their respective membership of the Administrative Council
ceases. Without prejudice to this provision, the duration of the terms of
office of the Chairmanor Deputy Chairmanshall be three years, un lessanother Chairman or Deputy Chairman have been elected before theend of this period. The terms of office shall be renewable.
Article 39
Meetings
1. Meetings of the Administrative Council shall be convened by its
Chairman.
2 The President of the Office shall take part in the deliberations,
unless the Administrative Council decides otherwise. He shall nothave the right to vote.
3. The Administrative Council shall hold an ordinary meeting once a
year; in addition, it shall meet on the initiative of its Chairman or at therequest of the Commissionor of on e-third of the Member States.
4. It shall adopt rules of procedure, and may set up, in accordance
with these rules, Committees placed under its authority.
5. The Administrative Council may invite observers to attend its
meetings.
6. The secretariat for the Administrative Council shall be provided
by the Office.1994R2100 — EN — 05.06.2003 — 002.001 — 17
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Article 40
Place ofmeetings
The Administrative Council shall meet at the seat of the Commission,
or at the locationof the Office or of anExamin ationOffice. The detailsshall be determined in the rules of procedure.
Article 41
Voting
1. The Administrative Council shall take its decisions, other than
those referred to inparagraph 2, by a simple majority of the represen -tatives of the Member States.
2. The majority of three quarters of the representatives of the
Member States shall be required for the decisions which the Adminis-trative Council is empowered to take under Articles 12 (1) (b), 29, 36(1) (a), (b), (d) and (e), 43, 47, 109 (3) and 112.
3. Each Member State shall have one vote.
4. The decisions of the Administrative Council shall have no
binding force within the meaning of Article 189 of the Treaty.
CHAPTER III
MANAGEMENTOFTHEOFFICE
Article 42
FunctionsandpowersofthePresident
1. The Office shall be managed by the President.
2. To this end, the President shall have, in particular, the following
functions and powers:
(a) The President shall take all necessary steps, including the adoption
of internal administrative instructions and the publications ofnotices, to ensure the functioning of the Office in accordance withthe provisions of this Regulation, with those referred to in Articles113 and 114, or with the rules established, or guidelines issued, bythe Administrative Council pursuant to Article 36 (1).
(b) He shall submit a management report to the Commission and
Administrative Council each year.
(c) He shall exercise inrespect of the staff the powers laid downin
Article 31 (2).
(d) He shall submit proposals as referred to inArticle 36 (1) (c) an d 47
(2).
(e) He shall draw up estimates of the revenue and expenditure of the
Office pursuant to Article 109 (1), and shall implement the budgetpursuant to Article 110.
(f) He shall supply information as required by the Administrative
Council pursuant to Article 36 (2), first indent.
(g) He may place before the Administrative Council draft amendments
to this Regulation, to the provisions referred to in Articles 113 and114 or to any other rules relating to Community plant varietyrights.
(h) He may delegate his powers to other members of the Office's staff,
and subject to the provisions referred to in Articles 113 and 114.
3. The President shall be assisted by one or more Vice-Presidents. If
the President is absent or indisposed, the Vice-President or one of theVice-Presidents shall take his place in accordance with the procedurelaid downinthe rules established, or the guidelin es issued, by theAdministrative Council pursuant to Article 36 (1).1994R2100 — EN — 05.06.2003 — 002.001 — 18
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Article 43
Appointmentofseniorofficials
1. The President of the Office shall be appointed by the Council
from a list of candidates which shall be proposed by the Commissionafter obtaining the opinion of the Administrative Council. Power todismiss the President shall lie with the Council, acting on a proposal
from the Commission after obtaining the opinion of the Administrative
Council.
2. The term of office of the President shall not exceed five years.
This term of office shall be renewable.
3. The Vice-President or Vice-Presidents of the Office shall be
appointed or dismissed as in paragraphs 1 and 2, after consultation ofthe President.
4. The Council shall exercise disciplinary authority over the officials
referred to inparagraphs 1 an d 3.
Article 44
Controloflegality
1. The Commissionshall con trol the legality of those acts of the
President in respect of which Community law does not provide forany control on legality by another body, and of the acts of the Admin-istrative Council relating to the Office's budget.
2. The Commission shall require that any unlawful act referred to in
paragraph 1 be altered or annulled.
3. Member States, any member of the Administrative Council or any
other persons directly and personally involved may refer to the
Commissionan y act referred to inparagraph 1, whether express or
implied, to examine the legality of that act. Referral shall be made tothe Commissionwithintwo mon ths of the day onwhich the partyconcerned became aware of the act in question. The Commission shalltake and communicate a decision within two months.
CHAPTER IV
THEBOARDSOFAPPEAL
Article 45
Establishmentandpowers
1. There shall be established withinthe Office on e or more Boards
of Appeal.
2. The Board or Boards of Appeal shall be responsible for deciding
onappeals from the decision s referred to inArticle 67.
3. The Board or Boards of Appeal shall be convened as necessary.
The number of Boards of Appeal and the work allocation shall bedetermined in the implementing rules pursuant to Article 114.
Article 46
CompositionoftheBoardsofAppeal
1. A Board of Appeal shall consist of a Chairman and two other
members.
2. The Chairmanshall select for each case the other members an d
their respective alternates from the list of qualified members estab-lished pursuant to Article 47 (2).
3. Where the Board of Appeal considers that the nature of the
appeal so requires, it may call up to two further members from theaforesaid list for that case.
4. The qualifications required for the members of each Board of
Appeal, the powers of individual members in the preparatory phase of1994R2100 — EN — 05.06.2003 — 002.001 — 19
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the decisions and the voting conditions shall be determined in the
implementing rules pursuant to Article 114.
Article 47
IndependenceofthemembersoftheBoardsofAppeal
1. The Chairmenof the Boards of Appeal an d their respective alter-
nates shall be appointed by the Council from a list of candidates for
each chairman and each alternate which shall be proposed by the
Commission after obtaining the opinion of the Administrative Council.The term of office shall be five years. It shall be renewable.
2. The other members of the Boards of Appeal shall be those
selected pursuant to Article 46 (2), from a list of qualified members
established ona proposal from the Office, for a term of five years, by
the Administrative Council. The list shall be established for a term offive years. This shall be renewable for whole or part of the list.
3. The members of the Board of Appeal shall be independent. In
making their decisions they shall not be bound by any instructions.
4. The members of the Boards of Appeal may not be members of
the Committees referred to in Article 35 nor perform any other dutiesinthe Office. The fun ctionof the members of the Boards of Appealmay be a part-time function.
5. The members of the Boards of Appeal may not be removed from
office nor from the list respectively, during the respective term, unlessthere are serious grounds for such removal and the Court of Justice ofthe EuropeanCommun ities, onapplicationby the Commissionafterobtaining the opinion of the Administrative Council takes a decision
to this effect.
Article 48
Exclusionandobjection
1. Members of the Boards of Appeal may not take part in any
appeal proceedings if they have any personal interest therein, or ifthey have previously been involved as representatives of one of theparties to proceedings, or if they participated in the decision underappeal.
2. If, for one of the reasons mentioned in paragraph 1 or for any
other reason, a member of a Board of Appeal considers that he shouldnot take part in any appeal proceedings, he shall inform the Board ofAppeal accordingly.
3. Members of the Boards of Appeal may be objected to by any
party to the appeal proceedings for one of the reasons mentioned inparagraph 1, or if suspected of partiality. Anobjectionshall n ot beadmissible if, while being aware of a reason for objecting, the partyto the appeal proceedings has taken a procedural step. No objectionmay be based on the nationality of members.
4. The Boards of Appeal shall decide as to the actionto be takenin
the cases specified inparagraphs 2 an d 3 without the participationofthe member concerned. For the purposes of taking this decision, themember who withdraws or has beenobjected to shall be replaced inthe Board of Appeal by his alternate.1994R2100 — EN — 05.06.2003 — 002.001 — 20
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PART FOUR
PROCEEDINGSBEFORETHEOFFICE
CHAPTER I
APPLICATIONS
Article 49
Filingofapplications
1. An application for a Community plant variety right shall be filed
at the choice of the applicant:
(a) at the Office directly; or
(b) at one of the sub-offices or national agencies, established or
entrusted, pursuant to Article 30 (4), subject to the applicantforwarding an information on this filing to the Office directlywithintwo weeks after filin g.
Details on the manner in which the information referred to in (b) above
must be forwarded, may be laid down in the implementing rulespursuant to Article 114. The omission of forwarding information onan application to the Office pursuant to (b) above, does not affect the
validity of the applicationif the applicationhas reached the Office
within one month after filing at the sub-office or national agency.
2. Where the application is filed at one of the national agencies
referred to in paragraph 1 (b), the national agency shall take all stepsto forward the applicationto the Office withintwo weeks after filin g.National agencies may charge the applicant a fee which shall notexceed the administrative costs of receiving and forwarding the appli-cation.
Article 50
Conditionsgoverningapplications
1. The application for a Community plant variety right must contain
at least the following:
(a) a request for the grant of a Community plant variety right;
(b) identification of the botanical taxon;
(c) information identifying the applicant or, where appropriate, the
joint applicants;
(d) the name of the breeder and an assurance that, to the best of the
applicants knowledge, no further persons have been involved inthe breeding, or discovery and development, of the variety; if theapplicant is not the breeder, or not the only breeder, he shall
provide the relevant documentary evidence as to how the entitle-
ment to the Community plant variety right came into hispossession;
(e) a provisional designation for the variety;
(f) a technical description of the variety;
(g) the geographic originof the variety;(h) the credentials of any procedural representative;
(i) details of any previous commercialization of the variety;(j) details of any other application made in respect of the variety.
2. Details of the conditions referred to in paragraph 1, including the
provision of further information, may be laid down in the imple-
menting rules pursuant to Article 114.
3. An application shall propose a variety denomination which may
accompany the application.1994R2100 — EN — 05.06.2003 — 002.001 — 21
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Article 51
Dateofapplication
The date of application for a Community plant variety right shall be the
date onwhich a valid applicationwas received by the Office pursuan tto Article 49 (1) (a) or by a sub-office or national agency pursuant toArticle 49 (1) (b), provided it complies with Article 50 (1) and subject
to payment of the fees due pursuant to Article 83 within a time limit
specified by the Office.
Article 52
Therightofpriority
1. The right of priority of anapplicationshall be determin ed by the
date of receipt of the application. Where applications have the same
date of application, the priorities thereof shall be determined accordingto the order inwhich they were received, if this canbe established.Otherwise they shall have the same priority.
2. If the applicant or his predecessor in title has already applied for
a property right for the variety ina Member State or ina Member ofthe International Union for the Protection of New Varieties of Plants,and the date of application is within 12 months of the filing of theearlier application, the applicant shall enjoy a right of priority for theearlier applicationas regards the applicationfor the Commun ity plan t
variety right, provided the earlier applicationstill exists onthe date of
application.
3. The right of priority shall have the effect that the date onwhich
the earlier applicationwas filed shall coun t as the date of applicationfor the Community plant variety right for the purposes of Articles 7,
10 and 11.
4. Paragraphs 2 and 3 shall also apply in respect of earlier applica-
tions that were filed in another Member State, provided the conditionsset out in Article 12 (1) (b), second sentence, is met regarding this
State on the date of application for the Community plant variety right.
5. Any claim for a right of priority earlier than that provided for in
paragraph 2 shall lapse if the applicant does not submit to the Officewithinthree mon ths of the date of applicationcopies of the earlierapplicationthat have beencertified by the authorities respon sible for
such application. If the earlier application has not been made in one
of the official languages of the European Communities, the Officemay require, in addition, a translation of the earlier application in oneof these languages.
CHAPTER II
EXAMINATION
Article 53
Formal examinationofapplication
1. The Office shall examine whether:
(a) the applicationhas effectively beenfiled pursuan t to Article 49;
(b) the application complies with the conditions laid down in Article
50 and the conditions laid down in the implementing rules pursuant
to that Article;
(c) where appropriate, a claim for priority complies with the provision
laid down in Article 52 (2), (4) and (5); and
(d) the fees due pursuant to Article 83 have been paid within a time
limit specified by the Office.
2. If the application, although complying with the conditions
referred to in Article 51, does not comply with other conditions laiddown in Article 50, the Office shall give the applicant an opportunityto correct any deficiencies that may have been identified.1994R2100 — EN — 05.06.2003 — 002.001 — 22
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3. If the application does not comply with the conditions referred to
in Article 51, the Office shall inform the applicant thereof, or, wherethis is not possible, publish the information pursuant to Article 89.
Article 54
Substantiveexamination
1. The Office shall examine whether the variety may be the object
of a Community plant variety right pursuant to Article 5, whether thevariety is new pursuant to Article 10, whether the applicant is entitled
to file an application pursuant to Article 12 and whether the conditions
laid downinArticle 82 are complied with. The Office shall alsoexamine whether the proposed variety denomination is suitablepursuant to Article 63. For such purposes, it may avail itself of theservices of other bodies.
2. The first applicant shall be deemed to be entitled to the Commu-
nity plant variety right pursuant to Article 11. This shall not apply if,before a decisiononthe applicationis taken , the Office is aware, or itis shown by a final judgment delivered with regard to a claim for enti-
tlement pursuant to Article 98 (4), that entitlement is not or is not
solely vested in the first applicant. Where the identity of the sole orother person entitled has been determined, the person or persons mayenter the proceedings as applicant or applicants.
Article 55
Technicalexamination
1. Where the Office has not discovered any impediment to the grant
of a Community plant variety right on the basis of the examinationpursuant to Articles 53 and 54, it shall arrange for the technical exam-ination relating to compliance with the conditions laid down in Articles7, 8 and 9 to be carried out by the competent office or offices in at
least one of the Member States entrusted with responsibility for the
technical examination of varieties of the species concerned by theAdministrative Council, hereafter referred to as the ‘ExaminationOffice or Offices’.
2. Where no Examination Office is available, the Office may, with
the consent of the Administrative Council, entrust other appropriateagencies with responsibility therefore or establish its own sub-officesfor the same purposes. For the purpose of the provisions of thisChapter, such agencies or sub-offices shall be considered as Examina-
tionOffices. They may avail themselves of facilities made available by
the applicant.
3. The Office shall forward to the Examination Offices copies of the
application as required under the implementing rules pursuant to
Article 114.
4. The Office shall determine, through general rules or through
requests in individual cases, when, where and in what quantities and
qualities the material for the technical examination and reference
samples are to be submitted.
5. Where the applicant makes a claim for priority pursuant to Article
52 (2) or (4), he shall submit the necessary material and any further
documents required within two years of the date of applicationpursuant to Article 51. If the earlier application is withdrawn or refusedbefore the expiry of two years, the Office may require the applicant tosubmit the material or any further documents within a specified time
limit.
Article 56
Theconductoftechnical examinations
1. Unless a different manner of technical examination relating to
compliance with the conditions laid down in Articles 7 to 9 has beenarranged, the Examination Offices shall, for the purposes of the tech-1994R2100 — EN — 05.06.2003 — 002.001 — 23
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nical examination, grow the variety or undertake any other investiga-
tions required.
2. The conduct of any technical examinations shall be in accordance
with test guidelines issued by the Administrative Council and any
instructions given by the Office.
3. For the purposes of the technical examination, the Examination
Offices may, with the approval of the Office, avail themselves of theservices of other technically qualified bodies and take into account theavailable findings of such bodies.
4. Each Examination Office shall begin the technical examination,
unless the Office has otherwise provided, no later than on the date on
which a technical examination would have begun on the basis of anapplication for a national property right filed on the date on which theapplication sent by the Office was received by the Examination Office.
5. Inthe case of Article 55 (5), each Examin ationOffice shall begin
the technical examination, unless the Office has otherwise provided, no
later thanonthe date onwhich anexamin ationwould have begunon
the basis of an application for a national property right, provided thenecessary material and any further documents required were submittedat that date.
6. The Administrative Council may determine that the technical
examination for varieties of vine and tree species may begin at a later
date.
Article 57
Examinationreports
1. The Examination Office shall, at the request of the Office or if it
deems the results of the technical examination to be adequate to eval-uate the variety, send the Office an examination report, and, where itconsiders that the conditions laid down in Articles 7 to 9 are compliedwith, a descriptionof the variety.
2. The Office shall communicate the results of the technical exami-
nations and the variety description to the applicant and shall give him
an opportunity to comment thereon.
3. Where the Office does not consider the examination report to
constitute a sufficient basis for decision, it may provide of its ownmotion, after consultation of the applicant, or on request of the appli-cant for complementary examination. For the purposes of assessment of
the results, any complementary examination carried out until a decision
taken pursuant to Articles 61 and 62 becomes final shall be consideredto be part of the examination referred to in Article 56 (1).
4. The results of the technical examination shall be subject to the
exclusive rights of disposal of the Office and may only otherwise beused by the Examination Offices in so far as this is approved by the
Office.
Article 58
Costsoftechnicalexaminations
The Office shall pay the Examination Offices a fee in accordance with
the implementing rules pursuant to Article 114.
Article 59
Objectionstograntofright
1. Any person may lodge with the Office a written objection to the
grant of a Community plant variety right.
2. Objectors shall be party to the proceedings for grant of the
Community plant variety right in addition to the applicant. Withoutprejudice to Article 88, objectors shall have access to the documents,1994R2100 — EN — 05.06.2003 — 002.001 — 24
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including the results of the technical examination and the variety
descriptionas referred to inArticle 57 (2).
3. Objections may be based only on the contention that:
(a) the conditions laid down in Articles 7 to 11 are not complied with;
(b) there is an impediment under Article 63 (3) or (4) to a proposed
variety denomination.
4. Objections may be lodged:
(a) at any time after the application and prior to a decision pursuant to
Articles 61 or 62, inthe case of paragraph 3 (a) hereof;
(b) withinthree mon ths of the publicationof the proposed variety
denomination pursuant to Article 89, in the case of objectionsunder paragraph 3 (b) hereof.
5. The decisions on objections may be taken together with the deci-
sions pursuant to Articles 61, 62 or 63.
Article 60
Priority ofanewapplicationinthecaseofobjections
Where an objection on the grounds that the conditions laid down in
Article 11 are not met leads to the withdrawal or refusal of the applica-
tion for a Community plant variety right and if the objector files anapplication for a Community plant variety right within one monthfollowing the withdrawal or within one month of the date on whichthe refusal becomes final in respect of the same variety, he may requirethat the date of the withdrawnor refused applicationbe deemed to be
the date of his application.
CHAPTER III
DECISIONS
Article 61
Refusal
1. The Office shall refuse applications for a Community plant
variety right if and as soon as it establishes that the applicant:
(a) has not remedied any deficiencies within the meaning of Article 53
which he was givenanopportun ity to correct withinthe time limitnotified to him;
(b) has not complied with a rule or request pursuant to Article 55 (4)
or (5) within the time limit laid down, unless the Office hasconsented to non-submission; or
(c) has not proposed a variety denomination which is suitable pursuant
to Article 63.
2. The Office shall also refuse applications for a Community plant
variety right if:
(a) it establishes that the conditions it is required to verify pursuant to
Article 54 have not been fulfilled; or
(b) it reaches the opinion on the basis of the examination reports
pursuant to Article 57, that the conditions laid down in Articles 7,
8 and 9 have not been fulfilled.
Article 62
Grant
If the Office is of the opinion that the findings of the examination are
sufficient to decide on the application and there are no impedimentspursuant to Articles 59 and 61, it shall grant the Community plantvariety right. The decisionshall in clude anofficial descriptionof thevariety.1994R2100 — EN — 05.06.2003 — 002.001 — 25
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Article 63
Varietydenomination
1 Where a Community plant variety right is granted, the Office shall
approve, for the variety in question, the variety denomination proposedby the applicant pursuant to Article 50 (3), if it considers, on the basisof the examination made pursuant to the second sentence of Article 54
(1), that this denomination is suitable.
2. A variety denomination is suitable, if there is no impediment
pursuant to paragraphs 3 or 4 of this Article.
3. There is an impediment for the designation of a variety denomi-
nation where:
(a) its use inthe territory of the Commun ity is precluded by the prior
right of a third party;
(b) it may commonly cause its users difficulties as regards recognition
or reproduction;
(c) it is identical or may be confused with a variety denomination
under which another variety of the same or of a closely relatedspecies is entered in an official register of plant varieties or underwhich material of another variety has been marketed in a Member
State or in a Member of the International Unit for the Protection of
New Varieties of Plants, unless the other variety no longer remainsin existence and its denomination has acquired no special signifi-cance;
(d) it is identical or may be confused with other designations which are
commonly used for the marketing of goods or which have to bekept free under other legislation;
(e) it is liable to give offence in one of the Member States or is
contrary to public policy;
(f) it is liable to mislead or to cause confusion concerning the charac-
teristics, the value or the identity of the variety, or the identity ofthe breeder or any other party to proceedings.
4. There is another impediment where, in the case of a variety
which has already beenen tered:
(a) inon e of the Member States; or
(b) in a Member of the International Union for the Protection of New
Varieties of Plants; or
(c) inan other State for which it has beenestablished ina Commun ity
act that varieties are evaluated there under rules which are equiva-lent to those laid down in the Directives on common catalogues;
in an official register of plant varieties or material thereof and has been
marketed there for commercial purposes, and the proposed varietydenomination differs from that which has been registered or used there,unless the latter one is the object of an impediment pursuant to para-graph 3.
5. The Office shall publish the species which it considers ‘closely
related’ within the meaning of paragraph 3 (c).
CHAPTER IV
THE MAINTENANCE OF COMMUNITY PLANT VARIETY
RIGHTS
Article 64
Technical verification
1. The Office shall verify the continuing existence unaltered of the
protected varieties.
2. For this purpose, a technical verification shall be carried out
pursuant to Articles 55 and 56.1994R2100 — EN — 05.06.2003 — 002.001 — 26
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3. The holder shall be required to provide all the information neces-
sary to assess the continuing existence unaltered of the variety to theOffice and to the Examination Offices to which technical verification
of the variety has been entrusted. He shall be required, in accordance
with the instructions given by the Office, to submit material of thevariety and to permit to verify whether appropriate measures havebeen taken to ensure the continuing existence unaltered of the variety.
Article 65
Reportonthetechnical verification
1. At the request of the Office, or if it establishes that the variety is
not uniform or stable, the Examination Office entrusted with the tech-nical verification shall send the Office a report on its findings.
2. If any deficiencies pursuant to paragraph 1 have been found
during the technical verification, the Office shall inform the holder of
the results of the technical verification and shall give him an opportu-
nity to comment thereon.
Article 66
Amendmentofthevariety denomination
1. The Office shall amend a variety denomination designated
pursuant to Article 63 if it establishes that the denomination does not
satisfy, or no longer satisfies, the conditions laid down in Article 63and in the event of a prior conflicting right of a third party, if theholder agrees to the amendment or the holder or any other personrequired to use the variety denomination has been prohibited, by a finaljudgment, for this reason from using the variety denomination.
2. The Office shall give the holder anopportun ity to propose an
amended variety denomination and shall proceed in accordance with
Article 63.
3. Objections may be lodged against the proposed amended variety
denomination in accordance with Article 59 (3) (b).
CHAPTER V
APPEALS
Article 67
Decisionssubjecttoappeal
1. Anappeal shall lie from decision s of the Office which have been
taken pursuant to Articles 20, 21, 59, 61, 62, 63 and 66, as well as on
decisions related to fees pursuant to Article 83, to costs pursuant to
Article 85, to the entering or deletion of information in the Registerpursuant to Article 87 and to the public inspection pursuant to Article88.
2. An appeal lodged pursuant to paragraph 1 shall have suspensory
effect. The Office may, however, if it considers that circumstances sorequire, order that the contested decision not be suspended.
3. An appeal may lie from decisions of the Office pursuant to Arti-
cles 29 and 100 (2), unless a ►
M1direct action ◄is
►M1brought◄pursuant to Article 74. The appeal shall not have
suspensory effect.
4. An appeal against a decision which does not terminate proceed-
ings as regards one of the parties may only be made in conjunctionwith an appeal against the final decision, unless the decision providesfor separate appeal.1994R2100 — EN — 05.06.2003 — 002.001 — 27
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Article 68
Personsentitledtoappealandtobepartiestoappealproceedings
Any natural or legal person may appeal, subject to Article 82, against a
decision, addressed to that person, or against a decision which,although in the form of a decision addressed to another person, is ofdirect and individual concern to the former. The parties to proceedingsmay, and the Office shall, be party to the appeal proceedings.
Article 69
Timelimitandform
Notice of appeal shall be filed inwritin g at the Office withintwo
months of the service of the decision where addressed to the appealingperson, or, in the absence thereof, within two months of the publicationof the decision, and a written statement setting out the grounds ofappeal shall be filed withinfour mon ths after the aforesaid service or
publication.
Article 70
Interlocutoryrevision
1. If the body of the Office which has prepared the decision
considers the appeal to be admissible and well founded, the Officeshall rectify the decision. This shall not apply where the appellant isopposed by another party to the appeal proceedings.
2. If the decision is not rectified within one month after receipt of
the statement of grounds, for the appeal, the Office shall forthwith:
— decide whether it will take anactionpursuan t to Article 67 (2),
second sentence, and
— remit the appeal to the Board of Appeal.
Article 71
Examinationofappeals
1. If the appeal is admissible, the Board of Appeal shall examine
whether the appeal is well-founded.
2. When examining the appeal, the Board of Appeal shall as often as
necessary invite the parties to the appeal proceedings to file observa-tions on notifications issued by itself or on communications from theother parties to the appeal proceedings within specified time limits.Parties to the appeal proceedings shall be entitled to make oral repre-sentations.
Article 72
Decisiononappeal
The Board of Appeal shall decide onthe appeal onthe basis of the
examination carried out pursuant to Article 71. The Board of Appealmay exercise any power which lies within the competence of theOffice, or it may remit the case to the competent body of the Officefor further action. The latter one shall, in so far as the facts are the
same, be bound by the ratio decidendi of the Board of Appeal.
Article 73
ActionsagainstdecisionsoftheBoardsofAppeal
1. Actions may be brought before the Court of Justice against deci-
sions of the Boards of Appeal on appeals.
2. The action may be brought on grounds of lack of competence,
infringement of an essential procedural requirement, infringement ofthe Treaty, of this Regulation or of any rule of law relating to theirapplication, or misuse of power.1994R2100 — EN — 05.06.2003 — 002.001 — 28
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3. The Court of Justice shall have jurisdiction to annul or to alter the
contested decision.
4. The action shall be open to any party to appeal proceedings
which has beenun successful, inwhole or inpart, inits submission s.
5. The actionshall be brought before the Court of Justice withintwo
months of the date of service of the decision of the Board of Appeal.
6. The Office shall be required to take the necessary measures to
comply with the judgment of the Court of Justice.
Article 74
Direct action
1.►M1A direct actionmay be brought before the Court of Justice
against◄decisions of the Office pursuant to Articles 29 and 100 (2).
2. The provisions laid down in Article 73 shall apply mutatis
mutandis.
CHAPTER VI
MISCELLANEOUS CONDITIONS GOVERNING PROCEED-
INGS
Article 75
Statement of grounds on which decisions are based, right of audi-
ence
Decisions of the Office shall be accompanied by statements of the
grounds on which they are based. They shall be based only on groundsor evidence on which the parties to proceedings have had an opportu-nity to present their comments orally or in writing.
Article 76
ExaminationofthefactsbytheOffice ofitsownmotion
In proceedings before it the Office shall make investigations on the
facts of its own motion, to the extent that they come under the exam-
ination pursuant to Articles 54 and 55. It shall disregard facts or itemsof evidence which have not been submitted within the time limit set bythe Office.
Article 77
Oral proceedings
1. Oral proceedings shall be held either on the initiative of the
Office itself or at the request of any of the parties to proceedings.
2. Without prejudice to paragraph 3, oral proceedings before the
Office shall not be public.
3. Oral proceedings before the Board of Appeal including delivery
of the decision, shall be public in so far as the Board of Appeal before
which the proceedings are taking place does not decide otherwise incircumstances where serious and unwarranted disadvantages could arisefrom admitting the public, particularly for any of the parties to theappeal proceedings.
Article 78
Takingofevidence
1. In any proceedings before the Office, the means of giving or
obtaining evidence may include the following:
(a) hearing the parties to proceedings;1994R2100 — EN — 05.06.2003 — 002.001 — 29
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(b) requests for information;
(c) the production of documents or other evidence;
(d) hearing the witnesses;
(e) opinions by experts;
(f) inspection;
(g) swornaffidavits.
2. Where the Office decides through a collective body, that body
may commission one of its members to examine the evidence adduced.
3. If the Office considers it necessary that a party to proceedings,
witness or expert give evidence orally, it shall either:
(a) issue a summons requiring the relevant person to appear before it;
or
(b) request the competent judicial or other authority in the country of
domicile of the relevant person to take the evidence as provided forinArticle 91 (2).
4. A party to proceedings, witness or expert who is summoned
before the Office may request it to allow his evidence to be heard by
the competent judicial or other authority in his country of domicile. On
receipt of such a request or inthe case that n o reactionwas giventothe summons, the Office may, in accordance with Article 91 (2),request the competent judicial or other authority to hear the evidenceof that person.
5. If a party to proceedings, witness or expert gives evidence before
the Office, the Office may, if it considers it advisable that the evidencebe given under oath or otherwise in binding form, request the compe-tent judicial or other authority in the country of domicile of therelevant person to hear his evidence under the requisite conditions.
6. Whenthe Office requests a competen t judicial or other authority
to take evidence, it may request it to take the evidence in binding formand to permit a member of the Office to attend the hearing and ques-tion the party to proceedings, witness or expert either through thatjudicial or other authority or directly.
Article 79
Service
The Office shall of its own motion effect service of all decisions and
summonses, and of notifications and communications, from which atime limit is reckoned, or which are required to be served either in
pursuance of other provisions of this Regulation or by provisions
adopted pursuant to this Regulation or by order of the President of theOffice. Service may be effected through the competent variety officesof the Member States.
Article 80
Restitutioinintegrum
1. Where, inspite of havin g takenall due care inthe particular
circumstances, the applicant for a Community plant variety right orthe holder or any other party to proceedings before the Office hasbeenun able to observe a time limit vis-à-visthe Office, his rights shall,
uponapplication , be restored if his failure to respect the time limit has
resulted directly, by virtue of this Regulation, in the loss of any right ormeans of redress.
2. Applications shall be filed in writing within two months after the
cause of non-compliance when the time limit has ceased to operate.
The act omitted shall be completed withinthis period. Application s
shall be admissible only within the period of one year following theexpiry of the time limit which has not been observed.
3. An application shall be accompanied by a statement of the
grounds on which it is based and the facts on which it relies.1994R2100 — EN — 05.06.2003 — 002.001 — 30
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4. The provisions of this Article shall not apply to the time limits
referred to inparagraph 2 n or to the time limits specified inArticle52 (2), (4) and (5).
5. An y personwho, ina Member State, has ingood faith used or
made effective and genuine arrangements to use a variety which is thesubject of a published application for grant of a Community plantvariety right, or of a Community plant variety right that has beengranted, in the course of a period between the loss of rights pursuant
to paragraph 1 in respect of the application or of a Community plant
variety right that has been granted and the restoration of those rights,may without payment continue such use in the course of his businessor for the needs thereof.
Article 81
General principles
1. In the absence of procedural provisions in this Regulation or in
provisions adopted pursuant to this Regulation, the Office shall apply
the principles of procedural law which are generally recognized in the
Member States.
2. Article 48 shall apply mutatis mutandis to the staff of the Office
in so far as it is involved in decisions of the kind referred to in Article67, and to the staff of the Examination Offices, in so far as it partici-pates inmeasures for the preparationof such decision s.
Article 82
Procedural representative
Persons who are not domiciled or do not have a seat or an establish-
ment within the territory of the Community may participate as partyto proceedings before the Office only if they have designated a proce-dural representative who is domiciled or has his seat or anestablishment within the territory of the Community.
CHAPTER VII
FEES,SETTLEMENTOFCOSTS
Article 83
Fees
1. The Office shall charge fees for its official acts provided for
under this Regulation as well as for each year of the duration of aCommunity plant variety right, pursuant to the fees regulations adoptedinaccordan ce with Article 113.
2. If fees due inrespect of the official acts set out inArticle 113 (2)
or of other official acts referred to inthe fees regulation s, which are
only to be carried out on application, are not paid, the application shall
be deemed not to have been filled or the appeal not to have beenlodged if the acts necessary for the payment of the fees have not beeneffected within one month of the date on which the Office served anew request for payment of fees and indicated in so doing these conse-quences of failure to pay.
3. If certain information provided by the applicant for grant of a
Community plant variety right can only be verified by a technicalexamination which goes beyond the framework established for thetechnical examination of varieties of the taxon concerned, the fees forthe technical examination may be increased, after having heard theperson liable to pay the fees, up to the amount of the expenditure actu-
ally incurred.
4. Inthe case of a successful appeal, the appeal fees or, incase of a
partial success, the corresponding part of the appeal fees, shall berefunded. However, the refund can be fully or partly refused if thesuccess of the appeal is based onfacts which were n ot available atthe time of the original decision.1994R2100 — EN — 05.06.2003 — 002.001 — 31
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Article 84
Terminationoffinancialobligations
1. The Office's right to require payment of fees shall lapse after four
years from the end of the calender year in which the fees became duefor payment.
2. Rights against the Office for the refunding of fees or of sums
overcharged by the Office shall lapse after four years from the end ofthe calendar year in which the rights arose.
3. A request for payment of a fee shall have the effect of inter-
rupting the time limit specified in paragraph 1, and a written and
reasoned claim for refund shall have the effect of interrupting the
time limit specified inparagraph 2. After in terruptionthe time limitshall begin to run again immediately and shall terminate at the latestsix years after the end of the calendar year in which it originallycommenced, unless judicial proceedings to enforce the right have been
instituted in the meantime; in that case the time limit shall end not
earlier than one year after the judgment has acquired the authority ofa final decision.
Article 85
Apportionmentofcosts
1. The losing party to proceedings for revocation or cancellation of
a Community plant variety right, or to appeal proceedings shall bear
the costs incurred by the other party to proceedings as well as all costs
incurred by him essential to the proceedings, including travel andsubsistence and the remuneration of an agent, adviser or advocate,withinthe limits of the scales set for each category of costs un der theconditions laid down in the implementing rules pursuant to Article 114.
2. However, where each party to proceedings succeeds on some and
fails onother heads, or if reason s of equity so dictate, the Office or
Board of Appeal shall decide a different apportionment of costs.
3. The party to proceedings who terminates the proceedings by with-
drawing the application for a Community plant variety right, the
applicationfor revocationor can cellationof rights, or the appeal, orby surrendering the Community plant variety rights, shall bear the costsincurred by the other party to proceedings as stipulated in paragraphs 1and 2.
4. Where the parties to proceedings conclude before the Office, or
Board of Appeal a settlement of costs differing from that provided for
in the preceding paragraphs, note shall be taken of that agreement.
5. Onrequest, the Office or Board of Appeal shall determin e the
amount of the costs to be paid pursuant to the preceding paragraphs.
Article 86
Enforcementofdecisionswhichdeterminetheamountofcosts
1. Final decisions of the Office which determine the amount of costs
shall be enforceable.
2. Enforcement shall be governed by the rules of civil procedure
applicable inthe Member State inwhich it takes place. Subject on lyto verification that the relevant document is authentic, the enforcementclause or endorsement shall be appended by the national authority
appointed for that purpose by the Government of each Member State;
the Governments shall inform the Office and the Court of Justice of theEuropean Communities of the identity of each such national authority.
3. When, upon application by the party seeking enforcement, these
formalities have beencompleted, it shall be en titled to proceed toendorsement under national law by bringing the matter directly beforethe competent body.1994R2100 — EN — 05.06.2003 — 002.001 — 32
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4. Enforcement shall not be suspended except by decision of the
Court of Justice of the European Communities. Control as to the regu-larity of enforcement measures shall, however, reside with the national
courts.
CHAPTER VIII
REGISTERS
Article 87
EstablishmentoftheRegisters
1. The Office shall keep a Register of Applications for Community
Plant Variety Rights which shall contain the following particulars:
(a) applications for a Community plant variety right together with a
statement of the taxon and the provisional designation of thevariety, the date of application and the name and address of theapplicant, of the breeder and of any procedural representative
concerned;
(b) any cases of termination of proceedings concerning applications for
a Community plant variety right together with the information setout insubparagraph (a);
(c) proposals for variety denominations;
(d) changes in the identity of the applicant or his procedural represen-
tative;
(e) on request, any levy of execution as referred to in Articles 24 and
26.
2. The Office shall keep a Register of Community Plant Variety
Rights wherein, after grant of a Community plant variety right, the
following particulars shall be entered:
(a) the species and variety denomination of the variety;
(b) the official description of the variety or a reference to documents in
the Office's possessioninwhich the official descriptionof thevariety is contained as integrating part of the Register;
(c) in the case of varieties for which material with specific components
has to be used repeatedly for the productionof material, a referen ceto such components;
(d) the name and address of the holder, of the breeder and of any
procedural representative concerned;
(e) the date on which the Community plant variety right begins and
ends, together with the reasons for the termination of right;
(f) on request, any contractual exclusive exploitation right or compul-
sory exploitation right, including the name and address of theperson enjoying the right of exploitation;
(g) onrequest, an y levy of executionas referred to inArticle 24;
(h) where the holder of an initial variety and the breeder of a variety
essentially derived from the initial variety both so request, the iden-tification of the varieties as initial and essentially derived includingthe variety denominations and the names of the parties concerned.A request from one of the parties concerned only shall suffice if he
has obtained either a non-contentious acknowledgement by the
other party pursuant to Article 99 or a final decision or a finaljudgment pursuant to the provisions of this Regulation whichcontain an identification of the varieties concerned as initial andessentially derived.
3. Any other particular or any condition for the entering in both
Registers may be specified in the implementing rules pursuant toArticle 114.
4. The Office may of its own motion and upon consultation with the
holder adapt the official variety descriptioninrespect of the n umberand type of characteristics or of the specified expressions of those char-1994R2100 — EN — 05.06.2003 — 002.001 — 33
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acteristics, when necessary, in the light of the current principles
governing the description of varieties of the taxon concerned, in orderto render the description of the variety comparable with the descrip-
tions of other varieties of the taxon concerned.
Article 88
Publicinspection
1. The Registers mentioned in Article 87 shall be open to public
inspection.
2. In case of a legitimate interest, the following shall be open to
public inspection, in accordance with the conditions set up in theimplementing rules pursuant to Article 114:
(a) documents relating to applications for grant of a Community plant
variety right;
(b) documents relating to Community plant variety rights already
granted;
(c) the growing of varieties for the purposes of their technical exami-
nation;
(d) the growing of varieties for the purpose of verifying their conti-
nuing existence.
3. Inthe case of varieties for which material with specific compo-
nents has to be used repeatedly for the production of material, at therequest of the applicant for a Community plant variety right, all datarelating to components, including their cultivation, shall be withheldfrom inspection. Such a request for withholding from inspection may
not be filed once the decision on the application for grant of a Commu-
nity plant variety right has been taken.
4. Materials submitted or obtained in connection with examinations
under Articles 55 (4), 56 and 64 may not be given to other parties bythe competent authorities under this Regulation unless the person
entitled gives his consent or such transfer is required in connection
with the cooperationcovered by this Regulationfor the purposes ofthe examination or by virtue of legal provisions.
Article 89
Periodical publications
The Office shall at least every two months, issue a publication
containing the information entered into the Registers pursuant toArticle 87 (1) and (2) (a), (d), (e), (f), (g) and (h), and not yetpublished. The Office shall also publish an annual report, containinginformation which the Office regards as expedient, but at least a list
of valid Community plant variety rights, their holders, the dates of
grant and expiry and the approved variety denominations. Details ofthese publications shall be specified by the Administrative Council.
Article 90
Exchangeofinformationandofpublications
1. The Office and the competent variety offices of the Member
States shall, on request and without prejudice to the conditions set upfor the sending of results of technical examinations, dispatch to eachother for their ownuse, free of charge, on e or more copies of theirrespective publications and any other useful information relating to
property rights applied for or granted.
2. The data referred to inArticle 88 (3) shall be excluded from
information, unless:
(a) the information is necessary for the conduct of the examinations
pursuant to Articles 55 and 64; or
(b) the applicant for a Community plant variety right or the holder
gives his consent.1994R2100 — EN — 05.06.2003 — 002.001 — 34
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Article 91
Administrativeandlegal cooperation
1. Unless otherwise provided in this Regulation or in national law,
the Office, Examination Offices referred to in Article 55 (1) and thecourts or authorities of the Member States shall onrequest give assis-tance to each other by communicating information or opening files
related to the variety, and samples or growing thereof for inspection.
Where the Office and the Examination Offices lay files, samples orgrowing thereof open to inspection by courts or public prosecutors'offices, the inspection shall not be subject to the restrictions laiddown in Article 88, and the inspection given by the Examination
Offices shall not be subject to a decision of the Office pursuant to
that Article.
2. Uponreceipt of letters rogatory from the Office, the courts or
other competent authorities of the Member States shall undertake onbehalf of that Office and within the limits of their jurisdiction, anynecessary enquiries or other related measures.
PART FIVE
IMPACTONOTHERLAWS
Article 92
Cumulativeprotectionprohibited
1. Any variety which is the subject matter of a Community plant
variety right shall not be the subject of a national plant variety rightor any patent for that variety. Any rights granted contrary to the firstsentence shall be ineffective.
2. Where the holder has been granted another right as referred to in
paragraph 1 for the same variety prior to grant of the Community plantvariety right, he shall be unable to invoke the rights conferred by such
protection for the variety for as long as the Community plant variety
right remains effective.
Article 93
Applicationofnationallaw
Claims under Community plant variety rights shall be subject to limita-
tions imposed by the law of the Member States only as expressly
referred to inthis Regulation .
PART SIX
CIVIL LAW CLAIMS, INFRINGEMENTS, JURISDIC-
TION
Article 94
Infringement
1. Whosoever:
(a) effects one of the acts set out in Article 13 (2) without being
entitled to do so, in respect of a variety for which a Communityplant variety right has been granted; or
(b) omits the correct usage of a variety denomination as referred to in
Article 17 (1) or omits the relevant information as referred to in
Article 17 (2); or
(c) contrary to Article 18 (3) uses the variety denomination of a variety
for which a Community plant variety right has been granted or adesignation that may be confused with it;
may be sued by the holder to enjoin such infringement or to pay
reasonable compensation or both.1994R2100 — EN — 05.06.2003 — 002.001 — 35
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2. Whosoever acts intentionally or negligently shall moreover be
liable to compensate the holder for any further damage resulting fromthe act in question. In cases of slight negligence, such claims may be
reduced according to the degree of such slight negligence, but not
however to the extent that they are less than the advantage derivedtherefrom by the person who committed the infringement.
Article 95
ActspriortograntofCommunityplantvarietyrights
The holder may require reasonable compensation from any person who
has, inthe time betweenpublicationof the applicationfor a Commu-nity plant variety right and grant thereof, effected an act that he wouldbe prohibited from performing subsequent thereto.
Article 96
Prescription
Claims pursuant to Articles 94 and 95 shall be time barred after three
years from the time at which the Community plant variety right has
finally been granted and the holder has knowledge of the act and of
the identity of the party liable or, in the absence of such knowledge,after 30 years from the termination of the act concerned.
Article 97
Supplementaryapplicationofnationallawregardinginfringement
1. Where the party liable pursuant to Article 94 has, by virtue of the
infringement, made any gain at the expense of the holder or of a personentitled to exploitation rights, the courts competent pursuant to Articles101 or 102 shall apply their national law, including their private inter-national law, as regards restitution.
2. Paragraph 1 shall also apply as regards other claims that may
arise in respect of the performance or omission of acts pursuant to
Article 95 inthe time betweenpublicationof the applicationfor gran tof a Community plant variety right and the disposal of the request.
3. In all other respects the effects of Community plant variety rights
shall be determined solely in accordance with this Regulation.
Article 98
Claimingentitlement toaCommunityplantvariety right
1. If a Community plant variety right has been granted to a person
who is not entitled to it under Article 11, the person entitled to it may,without prejudice to any other remedy which may be open to himunder the laws of the Member States, claim to have the Community
plant variety right transferred to him.
2. Where a person ist entitled to only part of a Community plant
variety right, that personmay, inaccordan ce with paragraph 1, claimto be made a joint holder.
3. Claims pursuant to paragraphs 1 and 2 may be invoked only
withina period of up to five years of publicationof the gran t of theCommunity plant variety right. This provision shall not apply if the
holder knew, at the time it was granted to or acquired by him, that he
was not entitled to such rights or that entitlement thereto was notvested solely inhim.
4. The personen titled shall be eligible mutatis mutandis to pursue
claims pursuant to paragraphs 1 and 2 in respect of an application forgrant of a Community plant variety right filed by a person who was notentitled to it or whom the entitlement was not vested solely.1994R2100 — EN — 05.06.2003 — 002.001 — 36
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Article 99
Obtainingidentificationofavariety
The holder of an initial variety and the breeder of a variety essentially
derived from the initial variety shall be entitled to obtain an acknowl-edgement of the identification of the varieties concerned as initial andessentially derived.
Article 100
Consequences of a change in holdership of a Community plant
variety right
1. In the event of a complete change in the holdership of a Commu-
nity plant variety right in consequence of a final judgment deliveredpursuant to Articles 101 or 102 for the purposes of claiming entitle-
ment under Article 98 (1), any exploitation or other rights shall lapse
with the entry of the person entitled in the Register of CommunityPlant Variety Rights.
2. Where the holder or a person enjoying the right of exploitation
has effected one of the acts set out in Article 13 (2) or has made effec-tive and genuine arrangements to do so prior to the commencement ofthe proceedings pursuant to Articles 101 or 102, he may continue or
perform such acts provided he requests a non-exclusive exploitation
right from the new holder entered in the Register of Community PlantVariety Rights. Such requests must be made withinthe time limit laiddown in the implementing rules. The exploitation right may be grantedby the Office in the absence of an agreement between the parties.
Article 29 (3) to (7) shall apply mutatis mutandis .
3. Paragraph 2 shall not apply where the holder or persons enjoying
the right of exploitationacted inbad faith whenthey effected the acts
or began to make the arrangements.
Article 101
Jurisdiction and procedure in legal actions relating to civil law
claims
1. The Lugano Convention as well as the complementary provisions
of this Article and of Articles 102 to 106 of this Regulation shall apply
to proceedings relating to actions in respect of the claims referred to inArticles 94 to 100.
2. Proceedings of the type referred to in paragraph 1 shall be
brought inthe courts:
(a) of the Member State or another Contracting Party to the Lugano
Convention in which the defendant is domiciled or has his seat or,in the absence of such, has an establishment; or
(b) if this condition is not met in any of the Member States or
Contracting Parties, of the Member State in which the plaintiff isdomiciled or has his seat or, inthe absen ce of such, has anestab-lishment; or
(c) if this condition is also not met in any of the Member States, of the
Member States inwhich the seat of the Office is located.
The competent courts shall have jurisdiction in respect of infringements
alleged to have beencommitted inan y of the Member States.
3. Proceedings relating to actions in respect of claims for infringe-
ment may also be brought in the courts for the place where theharmful event occured. In such cases, the court shall have jurisdictiononly in respect of infringements alleged to have been committed in theterritory of the Member State to which it belongs.
4. The legal processes and the competent courts shall be those that
operate under the laws of the State determined pursuant to paragraphs 2or 3.1994R2100 — EN — 05.06.2003 — 002.001 — 37
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Article 102
Supplementaryprovisions
1. Actions for claiming entitlement pursuant to Article 98 of this
Regulation shall not be considered to fall under the provisions ofArticle 5 (3) and (4) of the Lugano Convention.
2. Notwithstanding Article 101 of this Regulation, Articles 5 (1), 17
and 18 of the Lugano Convention shall apply.
3. For the purposes of applying Articles 101 and 102 of this Regula-
tion, the domicile or seat of a party shall be determined pursuant to
Articles 52 and 53 of the Lugano Convention.
Article 103
Rulesofprocedureapplicable
Where jurisdiction lies with national courts pursuant to Articles 101
and 102, the rules of procedure of the relevant State governing thesame type of action relating to corresponding national property rightsshall apply without prejudice to Articles 104 and 105.
Article 104
Entitlementtobringanactionforinfringement
1. Actions for infringement may be brought by the holder. Persons
enjoying exploitation rights may bring such actions unless that hasbeenexpressly excluded by agreemen t with the holder inthe case of
anexclusive exploitationright or by the Office pursuan t to Articles 29
or 100 (2).
2. Any person enjoying exploitation rights shall, for the purpose of
obtaining compensation for damage suffered by him, be entitled tointervene in an infringement action brought by the holder.
Article 105
Obligationofnationalcourtsorotherbodies
A national court or other body hearing an action relating to a Commu-
nity plant variety right shall treat the Community plant variety right asvalid.
Article 106
Stayofproceedings
1. Where an action relates to claims pursuant to Article 98 (4) and
the decision depends upon the protectability of the variety pursuant toArticle 6, this decisionmay n ot be givenbefore the Office has decided
on the application for a Community plant variety right.
2. Where an action relates to a Community plant variety right that
has been granted and in respect of which proceedings for revocation
or cancellation pursuant to Articles 20 or 21 have been initiated, the
proceedings may be stayed in so far as the decision depends upon thevalidity of the Community plant variety right.
Article 107
Penalties forinfringementofCommunityplantvariety rights
Member States shall take all appropriate measures to ensure that the
same provisions are made applicable to penalize infringements ofCommunity plant variety rights as apply in the matter of infringementsof corresponding national rights.1994R2100 — EN — 05.06.2003 — 002.001 — 38
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PART SEVEN
BUDGET, FINANCIAL CONTROL, COMMUNITY
IMPLEMENTINGRULES
Article 108
Budget
1. Estimates of all the Office's revenue and expenditure shall be
prepared for each financial year and shall be shown in the Office's
budget, and each financial year shall correspond with the calendar year.
2. The revenue and expenditure shown in the budget shall be in
balance.
3. Revenue shall comprise, without prejudice to other types of
income, total fees payable pursuant to Article 83 under the fees regula-tions referred to in Article 113, and, to the extent necessary, a subsidy
from the general budget of the European Communities.
4. Expenditure shall comprise, without prejudice to other types of
expenditure, the fixed costs of the Office and the costs arising fromthe Office's normal functioning, including sums payable to the Exami-nation Offices.
Article 109
Preparationofthebudget
1. The President shall draw up each year an estimate of the Office's
revenue and expenditure for the following year and shall transmit it tothe Administrative Council not later than 31 March each year, togetherwith a list of posts and, where the estimate provides for a subsidy
referred to in Article 108 (3), prefaced by an explanatory statement.
2. Should the estimate provide for a subsidy referred to inArticle
108 (3), the Administrative Council shall immediately forward the esti-mate to the Commission, together with the list of posts and theexplanatory statement, and may attach its opinion. The Commissionshall forward them to the budget authority of the Communities and
may attach an opinion along with an alternative estimate.
3. The Administrative Council shall adopt the budget, which shall
include the Office's list of posts. Should the estimate contain a subsidy
referred to inArticle 108 (3), the budget shall, if n ecessary, be adjustedto the appropriations in the general budget of the European Commu-nities.
Article 110
Implementationofthebudget
The President shall implement the Office's budget.
Article 111
Control
1. Control of commitment and payment of all expenditure and
control of the existence and recovery of all revenue of the Office shallbe carried out by the financial controller appointed by the Administra-tive Council.
2. Not later than 31 March each year the President shall transmit to
the Commission, the Administrative Council and the Court of Auditors
of the European Communities accounts of the Office's total revenueand expenditure for the preceding financial year. The Court of Auditorsshall examine them in accordance with relevant provisions applicableto the general budget of the European Communities.
3. The Administrative Council shall give a discharge to the Presi-
dent of the Office in respect ot the implementation of the budget.1994R2100 — EN — 05.06.2003 — 002.001 — 39
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Article 112
Financial provisions
The Administrative Council shall, after consulting the Court of Audi-
tors, adopt internal financial provisions specifying, in particular, theprocedure for establishing and implementing the Office's budget. The
financial provisions must, as far as possible, correspond to the provi-
sions of the Financial Regulation applicable to the general budget ofthe European Communities and depart from them only when thespecific requirements of the individual operation of the Office sodictate.
Article 113
Feesregulations
1. The fees regulations shall determine in particular the matters for
which fees pursuant to Article 83 (1) are due, the amounts of the feesand the way in which they are to be paid.
2. Fees shall be charged for at least inrespect of the followin g
matters for:
(a) the processing of applications for grant of a Community plant
variety right; this fee shall cover:
— the formal examination, (Article 53),
— the substantive examination (Article 54),
— the examination of the variety denomination (Article 63),
— the decision(Articles 61, 62)— the related publishing (Article 89);
(b) the arranging and carrying out of the technical examination;
(c) the processing of an appeal including the decision;
(d) each year of the duration of a Community plant variety right.
3. (a) Without prejudice to (b) and (c), the amounts of the fees shall
be fixed at such a level as to ensure that the revenue in respectthereof is in principle sufficient for the budget of the Office tobe balanced.
(b) However, the subsidy referred to inArticle 108 (3) may cover,
for a transitional period ending on 31 December of the fourth
year from the date laid downinArticle 118 (2), the expen diturerelating to the initial running phase of the Office. In accordancewith the procedure laid downinArticle 115, this period may beextended, if necessary, for no more than one year.
(c) Moreover, during the abovementioned transitional period only,
the subsidy referred to inArticle 108 (3) may also cover certainexpenditure of the Office relating to certain activities other thanthe processing of applications, the arranging and carrying out ofthe technical examinations and the processing of appeals. These
activities shall be specified, at the latest one year after the adop-
tion of this Regulation, in implementing rules pursuant toArticle 114.
4. The fees regulations shall be adopted in accordance with the
procedure laid down in Article 115, after consultation of the Adminis-trative Council on the draft of the measures to be taken.
Article 114
Otherimplementingrules
1. Detailed implementing rules shall be adopted for the purpose of
applying this Regulation. They shall in particular include procisions:
— defining the relationship between the Office and the Examination
Offices, agencies or its own sub-offices referred to in Articles 30
(4) and 55 (1) and (2),
— onmatters referred to inArticles 36 (1) an d 42 (2),1994R2100 — EN — 05.06.2003 — 002.001 — 40
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— onthe procedure of the Boards of Appeal.
2. Without prejudice to Articles 112 and 113, all the implementing
rules referred to inthis Regulationshall be adopted inaccordan ce with
the procedure laid downinArticle 115, after con sultationof the
Administrative Council on the draft of the measures to be taken.
Article 115
Procedure
1. The Commissionshall be assisted by a committee.2. Where reference is made to this Article, Articles 5 and 7 of Deci-
sion1999/468/EC (
1) shall apply.
The period laid downinArticle 5(6) of Decision1999/468/EC shall be
set at three months.
3. The committee shall adopt its rules of procedure.
PART EIGHT
TRANSITIONALANDFINALPROVISIONS
Article 116
Derogations
1. Notwithstanding Article 10 (1) (a) and without prejudice to the
provisions of Article 10 (2) and (3), a variety shall be deemed to benew also in cases where variety constituents or harvested materialthereof have not been sold or otherwise disposed of to others, by orwith the consent of the breeder, within the territory of the Community
for purposes of exploitationof the variety, earlier thanfour years, in
the case of trees or of vines earlier than six years, before the entryinto force of this Regulation, if the date of application is within oneyear of that date.
2. The provisionof paragraph 1 shall apply to such varieties also in
cases where a national plant variety right was granted in one or more
Member States before the entry into force of this Regulation.
3. Notwithstanding Articles 55 and 56, the technical examination of
these varieties shall be carried out to the extent possible by the Officeon the basis of the available findings resulting from any proceedingsfor the grant of a national plant variety right, in agreement with theauthority before which these proceedings were held.
4. In the case of a Community plant variety right granted pursuant
to paragraphs 1 or 2:
— Article 13 (5) (a) shall not apply in relation to essentially derived
varieties, the existence of which was a matter of common knowl-
edge in the Community before the date of entry into force of this
Regulation.
— Article 14 (3), fourth indent shall not apply to farmers who
continue to use an established variety in accordance with theauthorization of Article 14 (1) if, before the entry into force ofthis Regulation, they have already used the variety for the purposesdescribed in Article 14 (1) without payment of a remuneration; this
provision shall apply until 30 June of the seventh year following
that of the entry into force of this Regulation. Before that date theCommissionshall submit a report onthe situationof the establishedvarieties dealing with each variety individually. That period may beextended, in the implementing provisions adopted pursuant toArticle 114, inso far as the Commission 's report justifies it.1994R2100 — EN — 05.06.2003 — 002.001 — 41
(1) OJ L 184, 17.7.1999, p. 23.▼M2
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— without prejudice to the rights conferred by national protection, the
provisions of Article 16 shall apply mutatis mutandis to acts
concerning material disposed of to others by the breeder or with
his consent prior to the date of entry into force of this Regulation,
and effected by person who, prior to that date, have already effectedsuch acts or have made effective and genuine arrangements to doso.
If such earlier acts have involved further propagation which was
intended within the meaning of Article 16 (a), the authorization ofthe holder shall be required for any further propagation after the
expiry of the second year, in the case of varieties of vine and tree
species after the expiry of the fourth year, following the date ofentry into force of this Regulation.
— Notwithstanding Article 19, the duration of the Community plant
variety right shall be reduced by the longest period:
— during which variety constituents or harvested material thereof
have beensold or otherwise disposed of to others, by or with
the consent of the breeder, within the territory of the Commu-
nity for purposes of exploitation of the variety, as establishedin the findings resulting from the procedure for the grant of theCommunity plant variety right, in the case of paragraph 1,
— during which any national plant variety right or rights have been
effective, inthe case of paragraph 2,
but not more than by five years.
Article 117
Transitionalprovisions
The Office shall be set up ingood time to assume fully the tasks
incumbent upon it pursuant to this Regulation as from 27 April 1995.
Article 118
Entryintoforce
1. This Regulation shall enter into force on the day of its publication
intheOfficial Journal of the European Communities .
2. Articles 1, 2, 3, 5 to 29 and 49 to 106 shall apply from 27 April
1995.
This Regulation shall be binding in its entirety and directly applicable
inall Member States.1994R2100 — EN — 05.06.2003 — 002.001 — 42