Proposal for a Council Regulation (EC) amending Council Regulation (EC) 2100/94 on Community plant variety rights

(95/C 117/08)

COM(95) 144 final - 95/0091(CNS)

(Submitted by the Commission on 19 April 1995)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 43 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas Council Regulation (EC) 2100/94 (1) and any regulation amending this Regulation are directly concerned with the production and marketing of agricultural products and in particular material for the propagation of plants of the varieties protected; whereas these measures contribute to technical progress to increase agricultural productivity through the continued breeding of improved plant varieties;

Whereas it is appropriate, considering the need to ensure coherence of the system of appeal procedures to the Community jurisdiction in the different fields of industrial and commercial property, to align the rules on actions which may be brought against decisions of the Community Plant Variety Office or its Boards of Appeal established by the aforementioned Regulation with those provided for in Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark (2);

Whereas under Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (3), as last amended by Decision 94/149/ECSC, EC (4), that Court shall exercise at the first instance the jurisdiction conferred on the Court of Justice by the Treaties establishing the Communities - with particular regard to appeals lodged under the fourth subparagraph of Article 173 of the EC Treaty - and by the acts adopted in implementation thereof, save as otherwise provided in an act setting up a body governed by Community law; whereas the jurisdiction which this Regulation confers on the Court of Justice to annul or to alter decisions of the Boards of Appeal and in specific cases decisions of the Office shall accordingly be exercised at the first instance by the Court mentioned above in accordance with the above Decision,

HAS ADOPTED THIS REGULATION:

Article 1

Council Regulation (EC) No 2100/94 is hereby amended as follows:

1. Article 67 (3) is hereby amended as follows:

- in the German version, the words 'direkte Beschwerde` are replaced by the words 'unmittelbare Klage`, and the word 'eingelegt` is replaced by the word 'erhoben`,

- in the English version, the words 'direct appeal` are replaced by the words 'direct action`, and the word 'lodged` is replaced by the word 'brought`.

2. Article 73 is replaced by the following:

'Actions against decisions of the Board of Appeal

1. Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals.

2. The action may be brought or grounds of lack of competence, infringements of an essential procedural requirement, infringement of the Treaty, of this Regulation or of any rule of law relating to their application of misuse of power.

3. The Court of Justice has jurisdiction to annul or to alter the contested decision.

4. The action shall be open to any party to appeal proceedings which has been unsuccessful in its submissions.

5. The action shall be brought before the Court of Justice within two months of the date of service of the decision of the Board of Appeal.

6. The Office shall be required to take the necessary measures to comply with the judgment of the Court of Justice.`

3. Article 74 is hereby amended as follows:

- in the German version, the title is replaced by 'Unmittelbare Klage`, and in paragraph (1), the words 'Beschwerde direkt` are replaced by the words 'unmittelbare Klage` and the word 'eingelegt` is replaced by the word 'erhoben`;

- in the English version, the title is replaced by 'Direct action`, and in paragraph (1), the words 'A direct appeal to the Court of Justice of the European Communities may lie from` are replaced by the words 'A direct action may be brought before the Court of Justice against`.

Article 2

This Regulation shall enter into force on 27 April 1995.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

(1) OJ No L 227, 1. 9. 1994.

(2) OJ No L 11, 14. 1. 1994.

(3) OJ No L 319, 25. 11. 1988, p. 1, and corrigendum in OJ No L 241, 17. 8. 1989, p. 4.

(4) OJ No L 66, 10. 3. 1994, p. 29.