COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(90) 347 final 
Brussels, 30 August 1990 
Proposal for a 
COUNCIL REGULATION (EEC) 
on Community plant variety rights 
(presented by the Commission) 
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EXPLANATORY MEMORANDUM 
i. The subject 
The proposed Regulation is one of the measures contained in 
the Commission's White Paper of 1985 for completing the 
internal market in the field of agrioulture. 
Its subject is the establishment, at Community level, of a 
speoial form of industrial property rights for the development 
of new plant varieties. It shall ensure a proper reward to 
plant breeders for their respective achievements, and 
constitute an incentive for further developments. It is based 
on a system set up by UPOV (Union pour la Protection des 
Obtentions Végétales) and implemented at national level by the 
contracting parties thereto, including the majority of the 
Member States of the Community. 
2. The objectives 
The proposed system is considered to be an important 
instrument to promote the continued breeding of Improved plant 
varieties, as an essential element of technical progress to 
increase agricultural productivity. 
It seeks 
to adapt the current situation determined by various 
national plant variety protection laws to the 
circumstances of the single market, and 
to strengthen, in the light of the development of new 
breeding methods such as biotechnology, the protection 
available to plant breeders. 
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Under this system, breeders would be able to aoquire, upon a 
single application and through a single decision, direot and 
uniform protection throughout the Community for varieties of 
all botanical taxa and hybrids -of taxa. 
3. The structure 
The proposed rules are subdivided in four main seotions: 
the section on substantive law (Artioles 5 - 28) 
the section on operational law (Articles 29 - 88) 
the section on impact on other laws (Articles 89 - 103) 
the section on financial and institutional aspeots 
(Articles 104 - 110). 
4. The substantive law 
It lays down the conditions for the grant of Community plant 
variety rights (Article 5 - 12), in particular distinctness, 
uniformity, stability and novelty of the variety oonoerned and 
personal entitlement. 
It defines the uniform effects of the right granted (Artioles 
13 - 15) and confirms both the internationally reoognlzed 
principle of "breeders' exemption" for new varieties developed 
from protected varieties, and the accepted praotioe of 
"agricultural exemption" for farm-saved seed. 
It establishes rules on the use of variety denominations 
(Articles 16, 17) and fixes the period of protection and other 
criteria for termination (Articles 18 - 20). 
It determines the status of the right granted as an objeot of 
property of the holder (Articles 21 - 27) and provides for a 
system of compulsory licencing (Article 28). 
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5. The operational law 
The implementation of the Community plant variety rights 
system would be entrusted to a "Community Plant Variety 
Office". 
Its status, duties, structure and management are defined 
following examples in the field of other industrial property 
rights (Articles 29 - 37). 
An Administrative Council, consisting of representatives of 
Member States and the Commission, is proposed in order to 
advise the Office and to monitor its activities (Articles 38 -
43). 
Community judicial protection is ensured through "Boards of 
Appeal" and reference to the Court of Justice of the European 
Communities (Articles 44 - 47, 72). 
The proposal also provides for appropriate rules of procedure 
before the Office as such, in respect of applications 
(Articles 48 - 51), of the administrative and teohnioal 
examination thereof (Articles 52 - 59) and of its 
decisions (Articles 60-62) and follow-up-actions 
(Articles 63 - 65), and 
before the Boards of Appeal (Articles 66-71). 
It finally refers to a number of generally accepted principles 
of legal proceedings (Articles 73 - 79). 
This section is completed by certain provisions relating to 
the fees to be charged by the Office (Articles 80 - 83), and 
also to a Register of Community Plant Variety Rights and other 
means of information (Articles 84 - 88). 
6. Impact on other laws 
The system lays down certain provisions defining the 
relationship to national plant variety rights and - based on 
existing international commitments of Member States - to 
patents (Articles 89, 90). 
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It identifies civil law claims derived from the proposed 
system, in particular in cases of infringements (Artioles 91 • 
96), and refers to the relevant international and national 
rules on jurisdiction and procedure in legal actions arising 
out of such claims (Articles 97 - 102). Some amendments to 
national penal laws are also necessary (Article 103). 
7. Financial and institutional aspects 
The proposed budget system is inspired by earlier proposals. 
Mixed financing through fees and subsidies from the general 
budget of the Community is at first envisaged with the aim of 
moving later towards self-financing of the Office's variable 
costs (Articles 104 - 107). 
Finally, rules for the adoption of secondary Community 
provisions in accordance with established procedures are 
provided for (Articles 108 - 110). 
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Proposal for a 
COUNCIL REGULATION (EEC) 
on Community plant variety rights 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European Economic 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 the continued breeding of Improved plant varieties is an essential 
element of technical progress to increase agricultural productivity; 
Whereas measures for promoting such breeding should be supported; 
Whereas an important instrument for these purposes is the creation of a 
Community plant variety right; 
Whereas the system of Community plant variety rights must adapt the present 
situation, under which only national plant variety rights are available, to 
Community conditions and, in particular, ensure that plant breeders can 
acquire, through a single decision, direct and uniform protection in the whole 
of the Community; 
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Whereas the system must also have regard to developments In plant breeding 
techniques including biotechnology; whereas in order to stimulate the breeding 
and development of new varieties, there should be Improved protection compared 
with the present situation for all plant breeders without, however, 
unjustifiably Impairing access to protection generally or in the case of 
certain breeding techniques; 
Whereas varieties of all botanical taxa and hybrids of taxa should be 
protectable; 
Whereas protectable varieties must comply with internationally recognized 
requirements, I.e. distinctness, homogeneity, stability and novelty, and also 
be labelled with 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 the term 
"variety" shall be considered to mean an entity as traditionally and commonly 
understood by plant breeders, plant users and related institutions; whereas 
consequently that entity must be broader than that which satisfies the 
conditions governing the grant of Community plant variety rights in full, 
without however equalling a botanical taxon, and it must meet all the 
specifications set up in the relevant definition and does therefore in 
particular not extend to single cells or parts thereof nor to cell-lines; 
Whereas this definition is not intended to alter definitions which may have 
been established in the field of other industrial property rights, especially 
the patent field, nor to Interfere with or exclude from application laws 
governing the protectabiIity of products, including plants and plant material, 
or processes under such other industrial property rights; 
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Whereas It Is however highly desirable to have a common definition In 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 to their 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 entitlement to make 
applications must be regulated; 
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 scope of protection should 
be extended, compared with most national systems, to certain material of the 
variety to take account of trade via countries 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 varieties; 
Whereas in certain cases, particularly if the new variety, although distinct, 
Is, from a commercial point of view, an Imitation of the source variety, a 
certain form of dependency should be created; 
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Whereas, the exercise of Community plant variety rights must be subjected to 
restrictions laid down In provisions adopted In the public interest; whereas, 
these Include assuring agricultural production; 
Whereas the Commission must ensure that the conditions therefor are laid down 
at Community level either by Community law or possibly through binding 
agreements or otherwise; whereas compulsory licensing should also be provided 
for under certain circumstances; 
Whereas the use of prescribed variety denominations should be made obligatory; 
Whereas the Community plant variety right should In principle have a life of 30 
years and In the case of certain woody genera with longer development times, 50 
years; whereas other grounds for termination must be worked out; 
Whereas a Community plant variety right is an object of the holder's property 
and its rôle In relation to the non-harmonised legal provisions of Member 
States, particularly of civil law, must therefore be clarified; whereas this 
applies also to the settlement of infringements and the enforcement of 
entitlement to Community plant variety rights; 
Whereas, it is necessary to ensure that the full application of the principles 
of the Community plant variety rights system is not Impaired by the effects of 
other systems; whereas for this purpose certain rules, in conformity with 
Member States' existing international commitments, are required concerning the 
relationship to other industrial property rights; 
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Whereas it Is Indispensable to examine whether and to what extent the 
conditions for the protection accorded In other Industrial property systems, 
such as patents, should be adapted or otherwise modified for consistency with 
the Community plant variety rights system-, whereas this, where necessary, 
should be laid down In balanced rules by additional Community law; 
Whereas the Implementation of the Community plant variety rights system should 
be entrusted, following the example of concepts established In other Industrial 
property rights, to a central office, the "Community Plant Variety Office"; 
Whereas the duties and powers of the Office, including its Boards of Appeal, 
relating to the grant, termination or verification of Community plant variety 
rights and publications are as far as possible to be modelled on rules 
developed for similar systems, as are also the Office's structure and rules of 
procedure, the collaboration with the Commission and Member States particularly 
through an Administrative Council, the Involvement of Examination Offices in 
technical examination and moreover the necessary budgetary measures; whereas 
there should be mixed financing with the aim later of self-financing of at 
least the Office's total variable costs, but not necessarily its fixed costs 
such as staffing and accommodation*, whereas Community jurisdiction should be 
ensured ; 
Whereas the Office should be advised and supervised by the aforementioned 
Administrative Council, composed of representatives of Member States and the 
Commission; 
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Whereas this Regulation takes Into acount existing International systems as 
established by the International Convention for the Protection of New Varieties 
of Plants (UPOV-Convent Ion) or the Convention on the Grant of European Patents 
(European Patent Convention); 
Whereas this Regulation should be amended as necessary in the light of future 
developments in the aforementioned systems, or of the negotiations In the GATT 
on trade-related intellectual property rights, 
HAS ADOPTED THIS REGULATION: 
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PART ONE 
General provisions 
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Article 1 
Community plant variety rights 
For plant varieties as a result of breeding or discovery, a system of Community 
plant variety rights Is hereby established as the sole and exclusive form of 
Community industrial property rights. 
Article 2 
Uniform effect of Community plant variety rights 
Community plant variety rights shall have uniform effect in the territory of 
the Community and may not be granted, transferred or terminated in respect of 
the abovementloned territory otherwise than on a uniform basis. 
Article 3 
National property rights for plant varieties 
This Regulation shall be without prejudice to the right of the Member States to 
grant national property rights for plant varieties, provided that this is not 
excluded by Article 89(1). 
Article 4 
Community Office 
For the purpose of the implementation of this Regulation a Community Plant 
Variety Office, hereinafter referred to as "the Office", Is hereby established. 
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PART TWO 
Substantive law 
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CHAPTER I 
Conditions governing the grant of Community plant variety rights 
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Article 5 
Object of Community plant variety rights 
1. Varieties of all botanical taxa and hybrids of taxa may form the object of 
Community plant variety rights. 
2. For the purpose of this Regulation, "variety" shall be taken to mean any 
group of plants as well as parts of those plants as far as they comprise 
more than a cell or cell line and are usable for the production of plants, 
both referred to hereinafter as "Individuals", provided that: 
(a) it may be defined as an entity on the basis of the expression of the 
characteristics of Its individuals or of a particular distribution 
of such expressions in its individuals, 
(b) the expressions of the characteristics of its Individuals are 
hereditary, or reproduceable In using repeatedly individuals of its 
components, and 
(c) the combination of expressions of the characteristics of Its 
Individuals is not distinctive for all individuals of a botanical 
taxon. 
In cases where the commercial use of a variety does not imply the 
production of entire plants, "plants" within the meaning of the above 
definition shall be taken to mean those parts of plants which have to be 
produced for the purpose of using the variety. 
Article 6 
Protectable varieties 
Community plant variety rights shall be granted in respect of varieties that 
are: 
(a) distinct, 
(b) homogeneous, 
(c) stable and 
(d) new, and 
(e) for which a variety denomination exists which is suitable pursuant 
to Article 62. 
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Article 7 
Distinctness 
1. A variety shall be deemed to be distinct If its individuals either in the 
aggregate or on the basis of a particular distribution are clearly 
distinguishable by the expression of at least one important characteristic 
from the Individuals of any other variety whose existence Is a matter of 
common knowledge on the date of application determined pursuant to 
Article 50. 
2. The existence of another variety shall be deemed to be a matter of common 
knowledge, In particular, if on the date of application determined 
pursuant to Article 50: 
(a) it was entered In an official register of plant varieties; 
(b) an application for Its Inclusion In an official register of plant 
varieties was filed, provided the application has been granted in 
the meantime, or 
(c) one or more of the acts set out In Article 13(2) were notoriously 
effected for commercial purposes with Individuals thereof. 
Article 8 
Homogeneity 
A variety shall be deemed to be homogeneous if Its Individuals, either in the 
aggregate or on the basis of a particular distribution, are sufficiently 
uniform in the expression of each important characteristic, apart from a small 
number of deviations, having regard to the particular features of reproduction 
or propagation. 
Article 9 
Stab Ility 
1. A variety shall be deemed to be stable If Its individuals, either in the 
aggregate or on the basis of a particular distribution, correspond in each 
important characteristic after each propagation or each cycle of 
propagation to the expression that is distinctive of the variety In 
question. 
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2. For the purposes of granting Community plant variety rights, It shall be 
assumed that the requirements of paragraph 1 are satisfied where It 
emerges from the technical examination pursuant to Articles 54 and 55 that 
there Is no Indication that the variety will not be stable. 
Article 10 
Novelty 
1. A variety shall be deemed to be new if, at the date of application 
determined pursuant to Article 50, Individuals thereof have not been 
disposed of to others for commercial purposes or have been disposed of to 
others for commercial purposes only within the following periods of time: 
(a) one year, within the territory of the Community; 
(b) four years or, In the case of vine and tree species, six years, 
outside the territory of the Community. 
2. The disposal of individuals by the applicant or his predecessor in title 
on the basis of a contractual or other legal relationship in which the 
applicant or his predecessor in title preserve the exclusive right of 
disposal of these and other individuals of the variety, in particular for 
purposes solely of reproduction or propagation of this variety, 
preparation or storage shall not be deemed to constitute disposal to 
others within the meaning of paragraph 1, provided no further disposal is 
made. 
Likewise, the disposal of individuals by one legal person to another legal 
person shall not be deemed to constitute disposal to others where one of 
them is part of the other or where both are part of the same third legal 
person, and provided no further disposal is made by the recipient. 
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3. For the purposes of paragraph 1, no account shall be taken of any disposal 
to others that occurred within one year before the beginning of the period 
laid down In paragraph 1, and If It was due to, or in consequence of: 
(a) an evident abuse to the prejudice of the applicant or his 
predecessor In title, or 
(b) the fact that the applicant or his predecessor in title had 
displayed the variety at an official or officially recognized 
exhibition within the meaning of the Convention on International 
Exhibitions. 
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CHAPTER I I 
Persons entitled 
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Article 11 
Entitlement to Community plant variety rights 
1. The original breeder or discoverer of the variety or his successor in 
title shall be entitled to the Community plant variety right. 
2. If two or more persons have bred or discovered the variety Jointly, 
entitlement shall be vested jointly in them or their respective successors 
in title. 
3. Where a variety is derived essentially from individuals of only one other 
variety (source variety) for which a Community plant variety right has 
been granted under this Regulation, entitlement to the right referred to 
in paragraph 1 shall likewise be vested jointly in the holder of the plant 
variety right in respect of the source variety and the original breeder or 
discoverer of the derived variety, or his successor, if: 
(a) the derived variety is the result of a mutation, or 
(b) the derived variety exhibits predominantly the same expressions of 
most of the important characteristics as the source variety, and no 
evidence is available of an impact on economically relevant 
characteristics as compared to the source variety. 
4. Where not a Community plant variety right but a national industrial 
property right has been granted In one of the States referred to in 
Article 12(1) to another party for the source variety, the provisions of 
paragraph 3 shall apply mutatis mutandis, providing the law of the State 
concerned contains a provision comparable to paragraph 3. 
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5. If the breeder or discoverer is an employee, the entitlement to the 
Community plant variety right shall be determined In accordance with the 
national law applicable to the employment relationship in the context of 
which the variety was bred or discovered. 
6. Where entitlement to a Community plant variety right is vested Jointly In 
two or more persons pursuant to paragraphs 2 to 5, one or more of them may 
empower the others by written declaration to such effect to claim 
entitlement thereto. 
7. For the purposes of proceedings before the Office, the first applicant 
shall be deemed to be entitled to claim the entitlement to the Community 
plant variety right. This shall not apply if the Office is aware, by the 
time the decision on the application for grant of the Community plant 
variety right Is taken, or it Is shown by a final judgment delivered with 
regard to a claim for entitlement pursuant to Article 95(4), that 
entitlement Is not or is not solely vested in the first applicant. Where, 
in the event referred to in the second sentence, the identity of the sole 
or other person entitled has been determined, the latter may enter the 
proceedings as applicant. 
Article 12 
Entitlement to file an application for grant 
of a Community plant variety right 
1. An application for grant of 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 another State 
party to the UPOV Convention or are domiciled or have their seat or 
an establishment in such a State; 
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(b) nationals of any other State or are domiciled or have their seat in 
such a State, In so far as the Commission, after obtaining the 
opinion of the Administrative Council, has so decided; such a 
decision 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 protection afforded 
pursuant to this Regulation; the Commission shall establish whether 
this condition is met. 
2. An application may also be filed Jointly by two or more applicants. 
3. Persons who are not domiciled or do not have a seat or an establishment 
within the territory of the Community may participate in proceedings 
before the Office only If they have designated a procedural representative 
who is domiciled or has his seat or an establishment within the territory 
of the Community. 
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CHAPTER III 
Effects of Community plant variety rights 
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Article 13 
Rights of the holder of a Community plant variety right 
and prohibited acts 
1. A Community plant variety right shall have the effect that the holder or 
holders of the Community plant variety right, hereinafter referred to as 
"the holder", shall be entitled to effect the acts set out in paragraph 2 
In respect of the variety. 
2. All other persons shall be prohibited, without prejudice to the provisions 
of Articles 14 and 15, save with the consent of the holder, from 
reproducing or propagating the variety or from offering, disposing of to 
others, using or Importing into the Community, exporting from the 
Community or possessing for any of the abovementloned purposes Individuals 
or other parts of plants or harvested material of the variety or products 
obtained directly therefrom, all, i.e. Individuals, other parts of plants 
or harvested material and products directly obtained, referred to 
hereinafter as "material". 
3. If in the case of Article 11(3) no Community plant variety right has been 
granted for the derived variety, all other persons shall be prohibited, 
save with the consent of the holder of the source variety, from effecting 
acts of the type set out in paragraph 2 in respect of the derived variety. 
4. 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 or public security-, the protection of health and life of 
humans, animals or plants; the protection of the environment; or the 
safeguarding of competition, trade and agricultural production. 
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For the purpose of safeguarding agricultural production In the case of 
plant species governed by Community rules on the marketing of seeds or 
other propagating material, authorization may be given at Community level 
and In accordance with the procedure laid down in the Implementing rules 
pursuant to Article 109, to permit growers of propagating material of a 
variety for which a Community plant variety right has been granted to 
plant on their own holding harvested material obtained therefrom. Such 
authorization may be given only under conditions which shall be set up In 
an appropriate manner at Community level, upon initiative of the 
Comm i ss i on. 
Article 14 
Limitation of the effects of Community plant variety rights 
The rights conferred by a Community plant variety right shall not extend to: 
(a) acts relating to products that do not constitute material; 
(b) acts effected privately and for non-commercial purposes; 
(c) acts effected for experimental purposes; 
(d) acts effected for the purpose of discovering or creating new 
varieties; 
(e) without prejudice to the provisions of Article 13 paragraph 3, acts 
effected for the purpose of using the new varieties discovered or 
created pursuant to subparagraph (d), unless 
individuals of the protected variety have to be used repeatedly 
for the production of the new variety for commercial purposes, or 
- he new variety or the material of this variety comes under the 
protection of a property right which does not contain a 
comparable provision; 
f) acts whose prohibition would violate the provisions laid down in 
Article 13(4). 
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Article 15 
Exhaustion of Community plant variety rights 
1. The rights conferred by a Community plant variety right shall not extend 
to acts Involving individuals of the variety that were disposed of to 
others In any part of the Community by the holder or with his consent. 
This shall also be applicable In respect of other material that was 
disposed of to others pursuant to the first sentence or that was obtained 
from Individuals as referred to In the first sentence. 
2. Paragraph 1 shall not apply where the individuals have been or are being 
used as propagating material for the production of further individuals 
without having been intended for that purpose when they were disposed of. 
Article 16 
Use of variety denominations 
1. Anyone who offers or disposes of to others for commercial purposes within 
the territory of the Community propagating material of a variety in 
respect of which a Community plant variety right has been granted must 
state the variety denomination designated for the variety; where it Is 
stated in writing, the variety denomination shall be readily 
distinguishable and clearly legible. The first sentence shall also apply 
In respect of other material of the variety, If this Is required either 
pursuant to other provisions in law or if a request is made by an 
authority, by the purchaser or by any other person having a legitimate 
Interest. 
2. Paragraph 1 shall apply even after the termination of the Community plant 
variety right. 
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Article 17 
Limitation of the use of variety denominations 
1. The holder may not use any right granted in respect of a designation that 
is identical with the variety denomination to prohibit the use of that 
variety denomination. 
2. A third party may use a right granted In respect of a designation that Is 
identical with the variety denomination to prohibit the use of that 
variety denomination only If that right was granted to him before the 
variety denomination was designated. 
3. Where a variety has been granted a Community plant variety right or, in a 
Member State or another State party to the UPOV Convention, a national 
property right, neither Its denomination nor any designation which might 
be confused with it can be used for another variety of the same botanical 
species or a species regarded as related pursuant to the publication made 
in accordance with Article 62(6) or for material of such variety. 
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CHAPTER IV 
Duration and termination of Community plant variety rights 
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Article 18 
Duration of Community plant variety rights 
1. The term of the Community plant variety right shall run until the end of 
the thirtieth calendar year, or, in the case of varieties of vine and tree 
species, until the end of the fiftieth calendar year, following the year 
of grant. 
2. A Community plant variety right shall lapse before the expiry of the terms 
laid down In paragraph 1 if the holder surrenders it by sending a written 
declaration to such effect to the Office, and with effect from the day 
following the day on which the declaration is received by the Office. 
Article 19 
Revocation of Community plant variety rights 
The Office shall revoke a Community plant variety right with effect ab initio 
if it is ascertained that the conditions laid down In Article 7 or 10 were not 
complied with when the right was granted. 
Article 20 
Cancellation of Community plant variety rights 
1. The Office shall cancel the Community plant variety right with effect In 
futurum if it is ascertained that the conditions laid down in 
Article 8 or 9(1) are no longer complied with. If it is discovered that 
these conditions were already no longer complied with from a point in time 
prior to cancellation, cancellation may be made effective as from that 
juncture. 
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2. The Office may cancel a Community plant variety right with effect 
In futurum If the holder: 
(a) has not fulfilled an obligation under Article 63(3), 
(b) In the case referred to in Article 65, neither proposes another 
variety denomination nor consents to a variety denomination 
designated by the Office of its own motion, 
(c) falls to pay within a period of grace such overdue fees as may be 
payable to maintain the Community plant variety right, or 
(d) either as the initial holder or as a successor in title as a result 
of a transfer pursuant to Article 22 other than mortis causa, no 
longer satisfies the conditions laid down In Article 12. 
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CHAPTER V 
Community plant variety rights as objects of property 
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Article 21 
Assimilation with national laws 
1. Save where otherwise provided in Articles 22 to 28, a Community plant 
variety right as an object of property shall be regarded in all respects, 
and for the entire territory of the Community, as a corresponding 
industrial 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 an establishment 
on the relevant date, or, 
(b) if the conditions laid down In subparagraph (a) are not fulfilled, 
the Member State In which the first-mentioned procedural 
representative of the holder, as indicated in the said Register was 
domiciled or had his seat or an establishment on the date of 
registration. 
2. Where the conditions laid down in paragraph 1 are not fulfilled, the State 
referred to in paragraph 1 shall be the Member State in which the seat of 
the Office is located. 
3. Where domiciles, seats or establishments in two or more Member States are 
entered In respect of the holder or the procedural representatives in the 
Register referred to in paragraph 1, the first-mentioned 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 of 
applying paragraph 1(a) shall be the first joint holder taken in order of 
entry in the Register who fulfils the conditions. Where none of the joint 
holders fulfils the conditions laid down in paragraph 1(a), paragraph 2 
shalI be applicab le. 
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Article 22 
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 in Article 12. It 
shall be made in writing and shall require the signature of the parties to 
the contract, except when it is a result of a Judgement. Otherwise It 
shaII be voId. 
3. Save as otherwise provided In Article 96, a transfer shall have no bearing 
on the rights acquired by third parties before the date of transfer. 
4. A transfer shall not take effect for the Office and may not be cited vis-
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 cited vis-à-vis third 
parties who have acquired rights after the date of transfer but who knew 
of the transfer at the date on which they acquired those rights. 
Article 23 
Levy of execution 
A Community plant variety right may be levied In execution. 
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Article 24 
Bankruptcy or like proceedings 
Until such time as common rules for the Member States in this field enter into 
force, the only Member State in which a Community plant variety right may be 
involved In bankruptcy or like proceedings shall be that in which such 
proceedings are first brought within the meaning of national law or of 
conventions applicable in this field. 
Article 25 
The application for grant of a Community plant variety right 
as an object of property 
Articles 21 to 24 shall apply to applications for grant of Community plant 
variety rights. 
Article 26 
Contractual exploitation rights 
1. Community plant variety rights may form In full or In part the subject of 
contractually granted exploitation rights. Exploitation rights may 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 exploitation who contravenes 
any of the limitations attached to his exploitation right pursuant to 
paragraph 1. 
Article 27 
Joint holdership 
Articles 21 to 26 shall apply mutatis mutandis in the event of Joint holdership 
of a Community plant variety right in proportion to the respective share held, 
where such shares have been determined. 
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Article 28 
Compulsory exploitation rights 
1. Where the holder refuses to allow another party to effect acts of the kind 
referred to in Article 13(2) subject to reasonable conditions, the Office 
shall grant entitlement (compulsory exploitation right) to the other party 
upon application to effect such acts, provided it considers, after 
consulting the Administrative Council, this to be: 
(a) economically acceptable to the holder and 
(b) required in the public interest, in particular to supply the market 
with material offering specified features. 
2. On application by one or more Member States, by the Commission or by an 
organization set up at Community level and approved by the Commission for 
that purpose, a compulsory exploitation right may be granted, in 
accordance with the requirements set out In paragraph 1(a) and (b) and 
with the consent of the Administrative Council, to persons satisfying 
certain requirements or to anyone in one or more Member States or 
throughout the Community. 
3. The Office shall, when granting the compulsory exploitation right, 
stipulate the type of acts covered and the conditions pertaining thereto, 
In particular the level of the payment to be made to the holder. On the 
expiry of each one year period after the grant of the compulsory 
exploitation right, any of the parties may request that the decision 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 meantime undergone considerable 
change. 
4. National compulsory exploitation rights may not be granted In respect of a 
Community plant variety right. 
- 37 -
PART THREE 
The Community Plant Variety Office 
- 38 -
CHAPTER I 
General provisions 
- 3? -
Article 29 
Legal status, sub-offices 
1. The Office shall be a Community agency and shall have legal personality. 
2. The seat of the Office shall be located at •••. 
3. In each of the Member States, the Office shall enjoy the most extensive 
legal capacity accorded to legal persons under their laws. It may, in 
particular, acquire or dispose of movable and immovable property and may 
be a party to legal proceedings. For these purposes, the Office shall be 
represented by its President. 
4. With the consent of the Administrative Council, the Office may entrust 
national agencies with the exercise of specific administrative functions 
of the Office or establish its own sub-offices for that purpose in the 
Member States, subject to their consent. 
Article 30 
Staff 
1. The Staff Regulations of officials of the European Communities, the 
Conditions of Employment of Other Servants of the European Communities, 
and the rules adopted jointly by the institutions of the European 
Communities for purposes of the application of those Staff Regulations and 
Conditions of Employment shall apply to the staff of the Office, but 
without prejudice to the application of Article 46 to the members of the 
Board of Appeal. 
2. Without prejudice to Article 36, 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 in relation to its own 
staff. 
- 40 -
Article 31 
Privileges and Immunities 
The Protocol on the Privileges and Immunities of the European Communities shall 
apply to the Office. 
Article 32 
LlabiIity 
1. The contractual liability of the Office shall be governed by the law 
applicable to the relevant contract. 
2. As regards non-contractual liability the Office shall, in accordance with 
the general principles common to the laws of the Member States, make good 
any damage caused by its departments or employees in the performance of 
their duties. 
3. The Court of Justice of the European Communities shall have Jurisdiction 
to give judgment pursuant to any arbitration clause contained in a 
contract concluded by the Office and in disputes relating to compensation 
for any such damage as is referred to in paragraph 2. 
4. The personal liability of employees towards the Office shall be governed 
by the provisions laid down In the Staff Regulations or in the Conditions 
of Employment of other Servants. 
Article 33 
Languages 
1. 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. 
- 41 -
2. The persons participating In the procedure of the Office shall be entitled 
to conduct written and oral proceedings in any official language of the 
Community with translation and, In the case of hearings, simultaneous 
interpretation Into the working languages of the Office and those of the 
persons participating in the procedure In accordance with the Implementing 
rules pursuant to Article 109. 
- 42 -
Article 34 
Decisions of the Office 
1. Decisions of the Office pursuant to Articles 19, 20, 60, 61 and 62 and 
decisions on objections lodged pursuant to Article 58, shall, provided 
they do not have to be made by the Board of Appeal, be taken by a 
committee of three employees, two of whom must have prior technical 
training and one of whom must be a qualified lawyer. However, until the 
decision Is taken, one member of the committee shall normally be charged 
with handling the case. The hearing shall be held before the committee 
Itself. 
2. The committees may consult experts who are Independent of the parties 
concerned, Including those who were responsible for examining the variety. 
The Administrative Council may determine under what circumstances such 
experts should be heard at the request of a party concerned. 
3. The President shall determine how many committees pursuant to paragraph 1 
should be formed using the employees available to the Office, and shall 
decide on the work allocation. 
4. Other decisions of the Office shall be taken by the President or by a 
member of the Office's staff designated by him. 
- 43 -
CHAPTER 
Administration of the Office 
- 44 -
Article 35 
The President 
1. The Office shall be managed by the President. 
2. The President shall have, in particular, the following functions and 
powers: 
(a) he shall be responsible for carrying out the decisions of the 
Administrative Council; 
(b) he shall take all appropriate action, including the adoption of 
Internal administrative Instructions and the publication of 
communications, to ensure the proper operation of the Office-, 
(c) he may place before the Administrative Council draft amendments to 
this Regulation, to the provisions referred to in Articles 108 and 
109 or to any other rules relating to Community plant variety 
rights; 
(d) he shall draw up the estimates of revenue and expenditure of the 
Office pursuant to Article 105(1) and shall execute the Office 
budget ; 
(e) he shall submit a management report to the Administrative Council 
each year-, 
(f) he shall exercise the powers conferred by Article 30(2); 
(g) he may delegate his functions and powers. 
3. One or more Vice-Presidents may be appointed to assist the President. If 
the President is unable to act, the Vice-President or Vice-Presidents will 
act in his place underbill** to be determined by the Administrative Council. 
f~F~-' ~Â- f • "~* """••• 
- 45 -
Article 36 
Appointment of senior officials 
1. The President of the Office shall be appointed by the Commission from a 
list of at most three candidates which shall be prepared by the 
•t 
Administrative Council. Power pto dismiss the President shall I le with the 
Commission, acting on a proposât from the Administrative Council. 
2. The President shall be appointed for a term of office of at most 5 years. 
This term of office shall be renewable. 
3. Vice-Presidents of the Office shall be appointed or dismissed as In 
paragraphs 1 and 2, after consultation of the President. 
4. The Commission shall exercise disciplinary authority over the President 
and Vice-presidents. 
Article 37 
Control of legality 
1. The Commission shall be responsible for legal supervision of those acts of 
the President that are not subject to legal control by another body under 
Community law. 
2. The Commission shall require the alteration or cancellation of acts by the 
President that violate the law. 
3. Any Member State, any member of the Administrative Council or any third 
party who Is directly and personally concerned, may refer to the 
Commission any act of the President pursuant to paragraph 1, whether 
express or implied, for the legality of that act to be examined. The 
matter must be brought before the Commission within fifteen days of the 
date on which the party concerned came to know of the contested act. The 
Commission sha11 take a decision within a period of one month. Where no 
decision Is taken within this time-limit, this shall be deemed to 
constitute rejection. 
- 46 -
CHAPTER 11 I 
The Administrative Council 
- 47 -
Article 38 
Creation and powers 
1. An Administrative Council to the Office is hereby established. In 
addition to the powers assigned to the Administrative Council under this 
Regulation and under the provisions referred to in Articles 108 and 109, 
it shall exercise the powers set out in paragraphs 2 to 6. 
2. The Administrative Council shall advise the President on matters within 
the competence of the Office and shall monitor its activities. 
3. The Administrative Council may forward to the Commission with or without 
amendments the drafts submitted to it pursuant to Article 35(2)(c), or Its 
own draft amendments to this Regulation, to the provisions referred to in 
Articles 108 and 109 or to any other rules relating to Community plant 
variety rights. 
4. Where it considers it to be necessary, the Administrative Council may 
deliver opinions and seek information. 
5. The Administrative Council may establish rules on the working methods of 
the Office. 
6. The Administrative Council shall adopt its own rules of procedure. 
Article 39 
Composition of the Administrative Council 
1. The Administrative Council shall be composed of one representative of each 
Member State and one representative of the Commission. An alternate shall 
be appointed for each representative. 
2. The members of the Administrative Council may, subject to the provisions 
of Its rules of procedure, be assisted by advisers or experts. 
- 48 -
Article 40 
Chairmanship 
1. The Administrative Council shall elect a Chairman and a Deputy Chairman 
from among its members. The Deputy Chairman shall ex officio replace the 
Chairman In the event of him being prevented from attending to his duties. 
2. The duration of the terms of office of the Chairman and the 
Deputy Chairman shall be three years. The terms of office shall be 
renewable . 
Article 41 
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 not be entitled to 
vote. 
3. The Administrative Council shall hold an ordinary meeting once each year. 
In addition, it shall meet on the Initiative of its Chairman or at the 
request of the Commission or of one-third of the Member States. 
4. The Administrative Council may Invite observers to attend its meetings. 
5. The secretariat for the Administrative Council shall be provided by the 
Office. 
Article 42 
Place of meetings 
The Administrative Council shall meet at the seat of the Commission, or at the 
location of the Office or of an Examination Office. The details shall be 
determined in the rules of procedure. 
- 49 -
Article 43 
Voting 
1. The Administrative Council shall take Its decisions, other than those 
referred to In paragraph 2, by a simple majority of the votes cast. 
2. The majority of three-quarters of the votes cast shall be required for the 
decisions which the Administrative Council is empowered to take under 
Articles 12(1)(b), 36(1) and (3), 38(5), 46(1) and 54(2). 
3. The decisions of the Administrative Council shall have no binding force In 
the meaning of Article 189 of the Treaty. 
- 50 -
CHAPTER IV 
The Boards of Appeal 
- 51 -
Article 44 
Establishment and powers 
1. There shall be established within the Office one or more Boards of Appeal. 
2. The Boards of Appeal shall be responsible for deciding on appeals against 
the decisions referred to in Article 66. 
Article 45 
Composition of the Boards of Appeal 
The composition of the Boards of Appeal when deciding shall be as follows: 
(a) in the case of decisions of the Office taken solely on the basis of the 
examination pursuant to Articles 52 and 53, and decisions regarding entry 
of information in and removal of information from the Register of 
Community Plant Variety Rights, two legally-qualified members and one 
member with prior technical training; 
(b) for other decisions, two members with prior technical training and one 
Iega11y-qua11f i ed member. 
An alternate shall be appointed for each member. 
- 52 -
Article 46 
Independence of the members of the Boards of Appeal 
1. The Chairmen of the Boards of Appeal and the other members thereof shall 
be appointed by the Commission for a term of office of five years on a 
proposal from the Administrative Council. They may not be removed from 
office during that term, unless there are serious grounds for such removal 
by decision of the Court of Justice of the European Communities, having 
been seized by the Commission after obtaining the opinion of the 
Administrative Council. The term of office shall be renewable. The 
function of the members of the Boards of Appeal may be a part-time 
function. 
2. The members of the Boards of Appeal shall be independent. In making their 
decisions they shall not be bound by any Instructions whatsoever. 
3. The members of the Boards of Appeal may not perform any other duties In 
the Office. The right to perform any other activity shall be determined In 
accordance with the provisions referred to in Article 30(1). 
Article 47 
Exclusion and objection 
1. Members of the Boards of Appeal may not take part in determining any 
matter In which they have a personal Interest, or In which they have 
previously been Involved as representatives of any of the parties, or if 
they participated in making the decision under appeal. 
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 should not take 
part in any proceedings, he shall inform the Board of Appeal accordingly. 
- 53 -
3. Members of the Boards of Appeal may be objected to by any party for one of 
the reasons mentioned In paragraph 1, or If suspected of partiality. An 
objection shall not be admissible If, while being aware of a reason for 
objecting, the party has submitted applications or opinions In 
proceedings. 
4. The Boards of Appeal shall decide as to the action to be taken in the 
cases specified in paragraphs 2 and 3 without the participation of the 
member concerned. For the purposes of taking this decision, the member 
objected to shall be replaced by his alternate. 
- 54 -
PART FOUR 
Proceedings before the Office 
- 55 -
CHAPTER I 
AppiI cat Ions 
- 56 -
Article 48 
Filing of applications 
1. Applicants shall have the choice of submitting their application for grant 
of a Community plant variety right: 
(a) either at the Office directly, or 
(b) at one of the national agencies or sub-offices entrusted or set up 
pursuant to Article 29(4). 
2. Where the application Is submitted to one of the national agencies 
referred to in paragraph Kb), the latter shall take all necessary steps 
to ensure that the application is forwarded to the Office within two weeks 
of submission. National agencies may charge the applicant a fee which 
should not exceed the administrative costs Incurred in accepting and 
forwarding the application. 
3. Applications that have not reached the Office within one month of 
submission to the national agency shall be deemed to have been withdrawn. 
Article 49 
Conditions governing applications 
1. Applications for grant of a Community plant variety right must contain at 
least the fol lowing: 
(a) particulars Identifying the applicant; 
- 57 -
(b) the name of the original breeder or discoverer of the variety and an 
assurance that, to the best of the applicant's knowledge, no further 
persons have been Involved In the breeding or discovery of the 
variety; if the applicant is not, or not alone, the original breeder 
or discoverer, he shall Indicate, and, on request of the Office, 
provide for the relevant documentary evidence, how the entitlement 
for grant of the Community plant variety right came into his 
possession; if the variety Is derived essentially from individuals 
of only one other variety, the source variety shall also be 
Indicated, without prejudice to the information pursuant to 
paragraph 2(a); 
(c) a provisional designation for the variety-, 
(d) any other Information required by the Office for the purpose of 
examining the application. 
The following shall be supplied with the application: 
(a) a technical description of the variety; 
(b) a proposal for a variety denomination; 
(c) the credentials of any procedural representative. 
However, the proposal for a variety denomination may be submitted at a 
later date, within a time-limit specified by the Office. 
- 58 -
Article 50 
Date of appiI cat Ion 
The date of an application for grant of a Community plant variety right shall 
be the date on which the application was received by the Office pursuant to 
Article 48(1)(a) or by the national agency or sub-office of the Office pursuant 
to Article 48(1)(b), provided it contains at least the particulars enabling the 
identity of the applicant to be determined and a technical description of the 
variety is attached. 
Article 51 
Prior It les 
1. The priorities of applications shall be determined by dates of application 
or, In the case of applications received on the same date, according to 
the order in which they were received pursuant to Article 50, where this 
can be established. 
2. If the applicant or his predecessor in title has already applied for a 
property right In respect of the variety in a Member State or In another 
State party to the UPOV Convention, and the date of application is within 
twenty-four months of the filing of the earlier application, the applicant 
shall enjoy a right of priority for the earlier application as regards the 
application for grant of the Community plant variety right, provided the 
earlier application still exists on the date of application. 
3. The right of priority shall have the effect that the date on which the 
earlier application was filed shall count as the date of application for 
grant of a Community plant variety right for the purposes of Articles 7,10 
and 11(7). 
4. Paragraphs 2 and 3 shall also apply in respect of earlier applications 
that were filed in another State, provided the conditions set out in 
Article 12(1)(b) are met on the date of application. 
- 59 -
5. A claim for priority may be made only in the application. The claim shall 
lapse If the applicant does not submit to the Office within three months 
of the date of application copies of the earlier application that have 
been certified by the authorities responsible for such application. If the 
earlier application has not been made in one of the official languages of 
the European Communities, the Office may require, In addition, a 
translation of the earlier application in one of these languages. 
- 60 -
CHAPTER I I 
Examination 
- 61 -
Article 52 
Formal examination 
1. The Office shall examine whether: 
(a) the application has effectively been filed pursuant to Article 48; 
(b) the application satisfies the conditions laid down in Article 49; 
(c) documents relating to a claim for priority have been submitted 
within the time-limit laid down in Article 51(5) and 
(d) the fees due pursuant to Article 80 have been paid within a 
specif led 11me-1imit. 
2. If the application complies with the conditions for attribution of a date 
of application pursuant to Article 50, but does not comply with the 
conditions set out in Article 49, the Office shall give the applicant an 
opportunity to correct any deficiencies that may have been identified. 
3. If the application does not comply with the conditions for attribution of 
a date of application pursuant to Article 50 or is considered not to have 
been filed pursuant to Article 80 paragraph 2, the Office shall inform the 
applicant thereof directly, or, where this is not possible, by means of a 
publication as set out in Article 86. 
Article 53 
Substantive examination 
The Office shall verify whether the variety may be the object of a Community 
plant variety right pursuant to Article 5, whether the variety is new within 
the meaning of Article 10 and whether the applicant is entitled to file an 
application pursuant to Article 12. The Office shall verify the entitlement of 
the applicant to Community plant variety rights pursuant to Article 11 only if 
there are particular reasons for doubting such entitlement. The Office shall 
also verify, whether the proposed variety denomination is suitable pursuant to 
Article 62. For such purposes, it may avail Itself of the services of other 
bod i es. 
- 62 -
Article 54 
Technical examination 
1. Where the Office has not discovered any Impediment to the grant of a 
Community plant variety right on the basis of the examination pursuant to 
Articles 52 and 53, it shall arrange for the technical examination 
relating to compliance with the conditions laid down in Articles 7, 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 examination of 
varieties of the species concerned by the Administrative Council 
(Examination Offices). 
2. Where no Examination Office within the meaning of paragraph 1 is 
available, the Office may, with the consent of the Administrative Council, 
entrust other appropriate agencies with responsibility therefore or 
establish its own sub-offices for the purposes of the examination. For the 
purpose of the provisions of this Chapter, such agencies or sub-offices 
shall be considered as Examination Offices. 
3. The Office shall forward to the Examination Offices the numbers of copies 
of the application required by the implementing rules. 
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 Is to be submitted. 
5. Where the applicant makes a claim for priority pursuant to Article 51(2) 
or (4), he must submit the necessary material and any further documents 
required within two years of the date of application pursuant to Article 
50. If the earlier application is withdrawn or refused before the expiry 
of two years, the Office may require the applicant to submit the material 
or any further documents required within a specified time-limit. 
- 63 -
Article 55 
The conduct of technical examinations 
1. Unless a different manner of technical examination to check fulfilment of 
the conditions laid down in Articles 7, 8 and 9 has been arranged, the 
Examination Offices shall, for the purposes of the technical examination, 
grow the variety or undertake any other investigations required. 
2. If the Administrative Council has issued test guidelines or the Office has 
given instructions for the conduct of the technical examinations, the 
Examination Offices shall base the examinations thereon. 
3. For the purposes of the technical examination, the Examination Offices 
may, with the approval of the Office, avail themselves of the services of 
other technically qualified bodies and take Into account the available 
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 also have begun on the basis of an application 
for grant of a national property right filed on the date on which the 
application sent by the Office was received by the Examination Office. 
5. In the case referred to in Article 54(5), each Examination Office shall 
begin the technical examination, unless the Office has otherwise provided, 
no later than on the date on which an examination would also have begun on 
the basis of an application for grant of a national property right, 
provided the necessary material and any further documents required were 
submitted at the corresponding date. 
- 64 -
6. The Administrative Council may determine that the technical examination 
for varieties of vine and tree species may begin at a later date. 
7. The growing pursuant to paragraph 1 shall last until the decision on the 
grant of the Community plant variety right becomes final. 
Article 56 
Examination reports 
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 evaluate the 
variety, send the Office an examination report, and, where it considers 
that the conditions of Articles 7 to 9 are met, a description of the 
variety. 
2. The Office shall communicate the results of the technical examination 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 for complementary 
examination, unless the applicant, who shall be consulted, objects 
thereto. 
4. The results of the technical examination shall be subject to the exclusive 
rights of disposal of the Office and may only otherwise be used by the 
Examination Offices insofar as this Is approved by the Office. 
Article 57 
Costs of technical examinations 
The Office shall pay the Examination Offices a fee in accordance with the 
implementing rules. 
- 65 -
Article 58 
Object Ions 
1. Any person may lodge a written objection to the grant of a Community plant 
variety right with the Office. 
2. Objectors shall be party to the proceedings for grant of the Community 
plant variety right in addition to the applicant. 
3. Objections may be based only on the contention that: 
(a) the conditions laid down In Articles 7 to 11 are not satisfied; 
(b) there is an Impediment under Article 62(3) or(4) to a variety /\ 
denomination. 
4. Objections under paragraph 3 may be lodged: 
(a) at any time prior to the grant of the Community plant variety right, 
In the case of paragraph 3(a); 
(b) within three months of the publication of the variety denomination 
pursuant to Article 86(1)(c), in the case of objections under 
paragraph 3(b). 
Article 59 
Priority of a new application in the case of objections 
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 application for grant of 
a Community plant variety right and if the objecting party files an application 
for grant of the Community plant variety right within one month following the 
withdrawal or within one month of the date on which the refusal becomes final 
In respect of the same variety, he may require that the date of the withdrawn 
or refused application be deemed to be the date of his application. 
- 66 -
CHAPTER III 
Dec i s ions 
- 67 -
Article 60 
Refusal 
1. The Office shall refuse applications for grant of 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 52 
which he was given an opportunity to correct within the time-limit 
not if led to him; 
(b) has not compiled with a rule or request pursuant to Article 54(4) or 
(5) within the time-limit laid down, unless the Office has consented 
to non-submission; 
(c) has not paid the due fee for the technical examination within the 
time-Mm it laid down, or 
(d) has not proposed a variety denomination which is suitable pursuant 
to Article 62, or in the case referred to in Article 62(5) has 
objected to the variety denomination selected by the Office. 
2. The Office shall also refuse applications for grant of a Community plant 
variety right if: 
(a) it establishes that the conditions it is required to verify pursuant 
to Article 53 have not been fulfilled, or 
(b) it reaches the opinion on the basis of the examination reports 
pursuant to Article 56, that the conditions laid down in Articles 7, 
8 and 9 have not been fulfilled. 
Article 61 
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 impediments pursuant 
to Article 60, it shall grant the Community plant variety right. The decision 
must include an official description of the variety. 
- 68 -
Article 62 
Variety denomination 
1. Where a Community plant variety right is granted, the Office shall 
designate, for the variety in question, the variety denomination proposed 
by the applicant pursuant to Article 49, if it considers, on the basis of 
the examination made pursuant to the third sentence of Article 53, that 
this denomination is suitable. 
2. A variety denomination is suitable, if there is no impediment pursuant to 
paragraphs 3 or 4. 
3. There is an impediment for the designation of a variety denomination 
where: 
(a) its use in the territory of the Community is precluded by the prior 
r ight 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 related species is 
entered in an official register of plant varieties or under which 
material of another variety has been marketed in a Member State or 
in a State party to the UPOV Convention, unless the other variety no 
longer remains in existence and its denomination has acquired no 
special significance; 
(d) it is identical or may be confused with other designations which are 
commonly used for the marketing of goods or which have to be kept 
free under other legislation; 
(e) it Is liable to give offence in one of the Member States or is 
contrary to public policy, or 
- 69 -
(f) It Is liable to mislead or to cause confusion concerning the 
characteristics, the value or the identity of the variety, or the 
Identity of the breeder or discoverer or any other party to 
proceedings. 
4. There is another Impediment where, in the case of varieties which have 
already been entered 
(a) In one of the Member States, 
(b) in another state party to the UPOV Convention, or 
(c) In another State for which it has been established in a Community 
act that varieties are evaluated there under rules which are 
equivalent to those laid down in the Directives on common catalogues 
in an official register of plant varieties or material thereof has been 
marketed there for commercial purposes, the proposed variety denomination 
differs from that which has been registered or used there, unless the 
latter one is the object of an impediment pursuant to paragraph 3. 
5. Where the applicant does not propose a suitable denomination the Office 
shall designate a denomination of its own motion, provided the applicant 
does not object. 
6. The Office shall publish the species which it considers "closely related" 
within the meaning of paragraph 3(c). 
- 70 -
CHAPTER IV 
The maintenance of Community plant variety rights 
- 71 -
Article 63 
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 54 and 55. 
3. The holder shall be required to provide all the information necessary to 
assess the continuing existence unaltered of the variety to the Office 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 the variety and to 
permit to verify whether appropriate measures have been taken to ensure 
the continuing existence unaltered of the variety. 
Article 64 
Report on the technical verification 
1. At the request of the Office, or if it establishes that the variety is not 
homogeneous or stable, the Examination Office entrusted with the technical 
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 opportunity to comment 
thereon. 
- 72 -
Article 65 
Amendment of the variety denomination 
1. The Office shall amend a variety denomination designated pursuant to 
Article 62 if it establishes that the denomination does not satisfy, or no 
longer satisfies, the conditions laid down in Article 62 and in the event 
of a prior conflicting right of a third party, if the holder agrees to the 
amendment or the holder or any other person required to use the variety 
denomination has been prohibited, by a final judgment, for this reason 
from using the variety denomination. 
2. The Office shall give the holder an opportunity to propose another variety 
denomination and shall otherwise proceed in accordance with Article 62. 
3. Objections may be lodged against the new variety denomination in 
accordance with Article 58(3)(b). 
- 73 -
CHAPTER V 
AppeaI s 
- 74 -
Article 66 
Decisions subject to appeal 
1. An appeal shall lie from decisions of the Office which have been taken 
pursuant to Articles 19, 20, 60, 61, 62 and 65 as well as on decisions 
related to objections pursuant to Article 58, to fees pursuant to Article 
80, to the apportionment of costs pursuant to Article 82, to the entering 
or deletion of information In the Register pursuant to Article 84, to the 
public inspection pursuant to Article 85 and to publications pursuant to 
Article 86. It shall have suspensive effect. 
2. An appeal against a decision which does not terminate proceedings as 
regards one of the parties may only be made in conjunction with an appeal 
against the final decision, unless the decision allows separate appeal. 
Article 67 
Persons entitled to appeal and to be parties 
to appeal proceedings 
Any party to proceedings who is adversely affected by a decision resulting from 
such proceedings may appeal. The other parties to those proceedings and the 
Office shall be party to the appeal proceedings. 
Article 68 
Time-limit and form of appeal 
Notice of appeal shall be filed in writing at the Office within two months of 
the notification of the decision from which the appeal is made and a written 
statement setting out the grounds of appeal shall be filed within four months 
after notification of the decision. 
- 75 -
Article 69 
Interlocutary revision 
1. If the body of the Office which has prepared the decision considers the 
appeal to be admissible and well-founded, it shall rectify its decision. 
This shall not apply where the appellant is opposed by another party to 
the proceedings. 
2. If the appeal is not allowed within one month after receipt of the 
statement of grounds, it shall forthwith be remitted to the Board of 
Appea I. 
Article 70 
Examination of appeals 
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 file observations on notifications issued by itself 
or on commun!cat ions from the other parties within specified time-limits. 
Article 71 
Decision on appeal 
The Board of Appeal shall decide on the appeal on the basis of the examination 
carried out pursuant to Article 70. The Board of Appeal may exercise any power 
which lies within the competence of the Office, or it may remit the case to the 
competent body of the Office for further action. The latter one shall, 
insofar as the facts are the same, be bound by the ratio decidendi of the Board 
of Appeal. 
- 76 -
Article 72 
Further appeal 
1. A further appeal to the Court of Justice of the European Communities shall 
lie from decisions of the Board of Appeal. Such further appeals shall 
have suspensive effect. 
2. The further appeal may be lodged on grounds of lack of competence, 
infringement of an essential procedural requirement, infringement of the 
Treaty, of this Regulation, or of any rule of law relating to their 
application or misuse of power. 
3. The further appeal may be made by any party to the proceedings before the 
Board of Appeal who is adversely affected by its decision, or by the 
Commission or the Office. 
4. The further appeal shall be lodged with the Court of Justice within two 
months of notification of the decision of the Board of Appeal. 
5. The Office may intervene in the proceedings before the Court of Justice. 
It may also present observations without intervening in the proceedings. 
6. If the Court of Justice remits the case for further action to the Board of 
Appeal, the Board shall, in so far as the facts are the same, be bound by 
the ratio decidendi of the Court of Justice. 
- 77 -
CHAPTER VI 
Miscellaneous conditions governing proceedings 
- 78 -
Article 73 
Statement of grounds on which decisions are based, 
r ight of audience 
Decisions of the Office shall be accompanied by statements of the grounds on 
which they are based. They shall be based only on grounds or evidence on which 
the parties Involved have had an opportunity to present their comments. 
Article 74 
/ 
Examination of the facts by the Office of its own motion 
In proceedings before it the Office shall make investigations on the facts of 
its own motion, to the extent that they come under the examination pursuant to 
Articles 53 and 54. It may disregard facts or items of evidence which have not 
been submitted In due time by the parties involved. 
Article 75 
Oral proceedings 
1. If the Office considers oral proceedings to be expedient, they shall be 
held either on the initiative of the Office itself or at the request of 
any of the parties to the proceedings. 
2. Without prejudice to paragraph 3, oral proceedings before the Office shall 
not be pub Iic. 
3. Oral proceedings before the Board of Appeal including delivery of the 
decision, shall be public insofar as the Board of Appeal before which the 
proceedings are taking place does not decide otherwise in circumstances 
where serious and unwarranted disadvantages could arise from admitting the 
public, particularly for any of the parties to the proceedings. 
- 79 -
Article 76 
Taking of evidence 
1. In any proceedings before the Office, the means of giving or obtaining 
evidence shall include the following: 
(a) hearing the parties; 
(b) requests for information; 
(c) the production of documents or other evidence; 
(d) hearing the witnesses; 
(e) opinions by experts; 
(f) Inspection; 
(g) sworn affidavits. 
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, 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 for 
in Article 88(2). 
4. A party, 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 in 
the case that no reaction was given to the summons, the Office may, in 
accordance with Article 88(2), request the competent judicial or other 
authority to hear the evidence of that person. 
- 80 -
5. If a party, witness or expert gives evidence before the Office, the Office 
may, if it considers it advisable that the evidence be given under oath or 
otherwise In binding form, request the competent Judicial or other 
authority In the country of domicile of the relevant person to hear his 
evidence under the requisite conditions. 
6. When the Office requests a competent judicial or other authority to take 
evidence, it may request it take the evidence in binding form and to 
permit a member of the Office to attend the hearing and question the 
party, witness or expert either through that judicial or other authority 
or directly. 
Article 77 
Service 
The Office shall of its own motion effect service of all decisions and 
summonses, and of notifications and communications, from which a time-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 the Office. Service may be effected 
through the competent variety offices of the Member States. 
Article 78 
Restitutio In integrum 
1. Where, in spite of having taken all due care in the particular 
circumstances, the applicant or holder or any party to proceedings before 
the Office has been unable to observe a time-limit vis-à-vis the Office, 
his rights shall, upon application, be restored if his failure to respect 
the time-limit has resulted directly, by virtue of this Regulation, in the 
loss of any right or means of redress. 
- 81 -
2. Applications shall be filed in writing within two months after the cause 
of non-compliance when the t i me-limit has ceased to operate. The act 
omitted shall be completed within this period. Applications shall be 
admissible only within the period of one year following the expiry of the 
time-Mm it 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. 
4. The provisions of this Article shall not apply to the time-limits referred 
to in paragraph 2 nor to the time-limits specified in Article 51(2), (4) 
and (5). 
5. Any person who, in a Member State, has in good faith used or made 
effective and genuine arrangements to use a variety which is the subject 
of a published application for grant of a Community plant variety right, 
or of a Community plant variety right that has been granted, 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 business or for the needs thereof. 
Article 79 
Reference to general principles 
1. In the absence of procedural provisions in this Regulation or in 
provisions adopted pursuant to this Regulation, the Office shall refer to 
the principles of procedural law which are generally recognized in the 
Member States. 
2. Article 47 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 Article 66, 
and to the staff of the Examination Offices, in so far as it participates 
in measures for the preparation of such decisions. 
- 82 -
CHAPTER VI I 
Fees, settlement of costs 
- 83 -
Article 80 
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 a Community plant 
variety right, pursuant to the fees regulations adopted in accordance with 
Article 108. 
2. If fees due in respect of the official acts set out In Article 108(2) or 
of other official acts referred to in the fees regulations, which are only 
to be carried out on application, are not paid, the application shall be 
deemed not to have been filed or the appeal not to have been lodged if the 
acts necessary for the payment of the fees have not been effected within 
one month of the date on which the Office served a new request for payment 
of fees and indicated in so doing these consequences 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 technical examination which 
goes beyond the framework established for the technical examination of 
varieties of the taxon concerned, the fees for the technical examination 
may be increased, after having heard the person liable to pay the fees, up 
to the amount of the expenditure actually incurred. 
4. In the case of a successful appeal, the appeal fees or, in case of a 
partial success, the corresponding part of the appeal fees, shall be 
refunded. However, the refund can be fully or partly refused if the 
decision is based on facts the raising of which was delayed. 
- 84 -
Article 81 
Termination of financial obligations 
1. The Office's right to require payment of fees shall lapse after four years 
from the end of the calendar year In which the fees became due for 
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 of the calendar 
year In which the rights arose. / 
3. A request for payment of a fee shall have effect to Interrupt the time-
limit specified in paragraph 1, and a written and reasoned claim for 
refund shall have effect to interrupt the time-limit specified in 
paragraph 2. After interruption the time-limit shall begin to run again 
immediately and shall terminate at the latest six years after the end of 
the calendar year in which it originally commenced, unless in the meantime 
Judicial proceedings to enforce the right have been instituted; In this 
case the time-limit shall end not earlier than one year after the Judgment 
has acquired the authority of a final decision. 
Article 82 
Apportionment of costs 
1. Each party to objection proceedings or to proceedings for revocation or 
cancellation of a Community plant variety right, or to appeal proceedings 
shall meet the costs he has incurred unless a decision of the Office or 
the Board of Appeal, for reasons of equity, orders a different 
apportionment of essential costs, including travel and subsistence and the 
remuneration of an agent, adviser or lawyer. A decision on the 
apportionment of costs may also be taken on request when a Community plant 
variety right application, an objection or an application for revocation 
or cancellation of the Community plant variety right is withdrawn, or 
where the holder surrenders It pursuant to Article 18(2). 
- 85 -
2. The Office shall, upon application, determine the amount of costs to be 
paid where a decision is taken pursuant to paragraph 1 to divide them. 
Article 83 
Enforcement of decisions which determine the amount of costs 
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 
in the Member State in which it takes place. Subject only to verification 
that the relevant document is authentic, the enforcement clause 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 the European Communities of 
the identity of each such national authority. 
3. When, upon application by the party seeking enforcement, these formalities 
have been completed, it shall be entitled to proceed to endorsement under 
national law by bringing the matter directly before the competent body. 
4. Enforcement shall not be suspended except by decision of the Court of 
Justice of the European Communities. Control as to the regularity of 
enforcement measures shall, however, reside with the national courts. 
- 86 -
CHAPTER VI I 1 
Register of Community Plant Variety Rights, 
Information of the public 
- 87 -
Article 84 
Establishment of the Register 
1. 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 possession in which the official description of the 
variety 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 production of material, a 
reference to such components; 
(d) the names and addresses of: 
- the holder, 
- the original breeder or discoverer, 
- the procedural representative; 
(e) the date on which the Community plant variety right begins and ends, 
together with the reasons for the termination of the right; 
(f) any contractual exclusive exploitation right, if the holder or the 
licensee in submitting documented evidence so requests, or 
compulsory exploitation right, including the name and address of the 
person enjoying the right of exploitation; 
(g) any levy of execution pursuant to Article 23, if a party thereto so 
requests; 
(h) any other particular as may be specified in the implementing rules 
pursuant to Article 109. 
- 88 -
2. The Office may of Its own motion and upon consultation with the holder 
adapt the official variety description In respect of the number and type 
of characteristics or of the specified expressions of those 
characteristics, when necessary, in the light of the current principles 
governing the description of varieties of the taxon concerned, In order to 
render the description of the variety comparable with the descriptions of 
other varieties of the taxon concerned. 
3. Changes in holdership or in the Identity of a procedural representative 
shall be entered in the Register if supporting evidence is provided to the 
Office. 
4. The holder shall be required, in accordance with the instructions given by 
the Office, to deposit a reference sample of individuals of the variety. 
This sample shall be referred to for determining the identity of the 
var iety. 
Article 85 
Pub!1c Inspect Ion 
1. The following shall be open to public inspection, in accordance with the 
conditions set up in the implementing rules pursuant to Article 109: 
(a) the Register of Community plant variety rights; 
(b) documents relating to published applications for grant of a 
Community plant variety right; 
(c) documents relating to Community plant variety rights already 
granted; 
(d) the growing of varieties for the purposes of their technical 
examinât ion; 
(e) the growing of varieties for the purpose of verifying their 
continuing existence, 
(f) the reference samples deposited pursuant to Article 84(4). 
- 89 -
2. Documents relating to applications for grant of a Community plant variety 
right which have not yet been published shall be made available for 
Inspect Ion only: 
(a) with the consent of the applicant, or If 
(b) the person seeking inspection can prove that the applicant has 
stated, directly or indirectly, that after the Community plant 
variety right has been granted he may invoke the rights under it 
against that person. 
3. In the case referred to in Article 84(1 )(c), at the request of the 
applicant, all data relating to components, including their cultivation, 
shall be withheld from inspection. Such a request for withholding from 
inspection may not be filed once the decision on the application for grant 
of a Community plant variety right has been taken. 
4. Materials submitted or obtained in connection with examinations under 
Articles 54(4), 55 and 63 may not be given to other parties by the 
competent authorities under this Regulation unless the person entitled 
gives his consent or such transfer is required in connection with the 
cooperation covered by this Regulation for the purposes of the examination 
or by virtue of legal provisions. 
Article 86 
Periodical Publications 
1. The Office shall periodically publish the following in a publication which 
shall be specified by the Administrative Council: 
(a) applications for grant of a Community plant variety right together 
with a statement of the taxon and the provisional designation of the 
variety, the date of application and the name and address of the 
applicant, of the original breeder or discoverer and of any 
procedural representative; 
- 90 -
(b) any cases of termination of proceedings for grant of a Community 
plant variety right together with the Information set out In 
subparagraph (a); 
(c) proposals for variety denominations; 
(d) grants of Community plant variety rights together with the 
information laid down In Article 84(1)(a), (d) and (e); 
(e) any cases of termination of Community plant variety rights together 
with the information set out above; 
(f) any cases of creation or termination of contractual exclusive 
exploitation rights or compulsory exploitation rights, in the case 
of Article 84 paragraph 1(f); 
(g) amendments to variety denominations pursuant to Article 65; 
(h) changes in holdership or in the identity of a procedural 
representative pursuant to Article 84(3); 
(I) any levy of execution pursuant to Article 23, if a party thereto so 
requests. 
2. In addition, the publication shall contain notices and information of a 
general character issued by the Office, and may contain any other 
information relevant to this Regulation or its implementation. 
Article 87 
Exchange of Information and of publications 
1. The Office and the competent variety offices of the Member States shall, 
on request and without prejudice to the conditions set up for the sending 
of results of technical examinations, dispatch to each other for their own 
use, free of charge, one or more copies of their respective publications 
and any other useful information relating to property rights applied for 
or granted. 
2. The data referred to in Article 85(3) shall be excluded from information, 
unless 
(a) the information is necessary for the conduct of the examinations 
pursuant to Articles 54 and 63, or 
(b) the applicant or holder gives his consent. 
- 91 -
Article 88 
Administrative and legal cooperation 
1. Unless otherwise provided in this Regulation or in national law, the 
Office and the courts or authorities of the Member States shall on request 
give assistance to each other by communicating Information or opening 
files related to the variety, and samples or growing thereof for 
inspection. Where the Office lays files, samples or growing thereof open 
to inspection by courts or public prosecutors' offices, the inspection 
shall not be subject to the restrictions laid down in Article 85. 
2. Upon receipt of letters rogatory from the Office, the courts or other 
competent authorities of the Member States shall undertake on behalf of 
that Office and within the limits of their Jurisdiction, any necessary 
enquiries or other related legal measures. 
92 -
PART FIVE 
Impact on other laws 
- 93 -
Article 89 
Cumulative protection prohibited 
1. Varieties that are the subject matter of Community plant variety rights 
shall not be patented nor be the subject matter of national plant variety 
rights. Any rights granted contrary to the first sentence shall be 
ineffeetIve. 
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 plant 
variety right, he shall be unable to invoke the rights conferred by such 
protection in respect of the variety for as long as the Community plant 
variety right remains effective. 
Article 90 
Application of national law 
Claims under Community plant variety rights shall be subject to limitations 
imposed by the law of the Member States only as expressly referred to in this 
Régulât ion. 
- 94 -
PART SIX 
Civil law claims, Infringements, Jurisdiction 
- 95 -
Article 91 
Infringement of Community plant variety rights 
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 Community 
plant variety right has been granted or 
(b) contrary to Article 17(3) uses the variety denomination of a variety 
for which a Community plant variety right has been granted or a 
designation that may be confused with it, 
may be sued by the holder to enjoin such infringement or to pay reasonable 
compensation or both. 
2. Whosoever acts intentionally or negligently shall moreover be liable to 
compensate the holder for any further damage resulting from the act in 
question. In cases of slight negligence, such claims shall be reduced 
according to the degree of such slight negligence, but not however to the 
extent that they are less than the advantage derived therefrom by the 
person who committed the infringement. 
Article 92 
Acts prior to grant of Community plant variety rights 
The holder may require reasonable compensation from any person who has, in the 
time between publication of the application for grant of a Community plant 
variety right and grant thereof, effected an act that he would be prohibited 
from performing subsequent thereto. 
- 96 -
Article 93 
Prescription 
Claims pursuant to Articles 91 and 92 shall be barred by prescription after 
three years from the time at which the holder has knowledge of the act and of 
the identity of the party liable or, irrespective of such knowledge, after 
thirty years from the termination of the act concerned. 
Article 94 
Supplementary application of national law regarding infringement 
1. Where the party liable pursuant to Article 91 has, by virtue of the 
infringement, made any gain at the expense of the holder or of a person 
entitled to exploitation rights, the courts competent pursuant to Articles 
97 or 98 shall apply their national law, including their private 
international 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 92 in 
the time between publication of the application for grant of 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. 
Art icle 95 
Claiming entitlement to a Community plant variety 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 him under the laws of 
the Member States, claim to have the right to the Community plant variety 
right transferred to him. 
- 97 -
2. Where a person is entitled to only part of a Community plant variety 
right, that person may, In accordance with paragraph 1, claim to be made a 
Joint holder. 
3. Claims pursuant to paragraphs 1 and 2 may be Invoked only within a period 
of up to five years of publication of the grant of the Community 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 not vested solely in him. 
4. The person entitled shall be eligible mutatis mutandis to pursue claims 
pursuant to paragraphs 1 and 2 in respect of an application for grant of a 
Community plant variety right filed by a person who was not entitled to it 
or in whom the entitlement was not vested solely. 
Article 96 
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 Community plant 
variety right in consequence of a final judgement delivered pursuant to 
Articles 97 or 98 for the purposes of claiming entitlement under 
Article 95(1), any exploitation or other rights shall lapse with the entry 
of the person entitled in the Register of Community Plant Variety Rights. 
- 98 -
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 effective 
and genuine arrangements to do so prior to the commencement of the 
proceedings pursuant to Articles 97 or 98, they may continue or perform 
such acts provided they request a non-exclusive exploitation right from 
the new holder entered in the Register of Community Plant Variety Rights. 
Such requests must be made within the time-limit laid down in the 
implementing rules. The exploitation right shall be granted by the Office 
for a reasonable period on reasonable conditions. 
3. Paragraph 2 shall not apply where the holder or persons enjoying the right 
of exploitation acted in bad faith when they effected the acts or began to 
make the arrangements. 
Article 97 
Jurisdiction and procedure In legal actions relating 
to civ 11 law claims 
1. The Convention on Jurisdiction and the Enforcement of Judgments in Civil 
and Commercial Matters, signed in Lugano on 16 September 1988, hereinafter 
referred to as "the Convention", as well as the complementary provisions 
of this Article and of Articles 98 to 102 of this Regulation shall apply 
to proceedings relating to actions in respect of the claims referred to In 
Articles 91 to 96. 
2. Proceedings of the type referred to in paragraph 1 shall be brought In the 
courts 
a) of the Member State or another Contracting Party to the 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 is 
domiciled or has his seat or, In the absence of such, has an 
establIshment, or 
c) if this condition is also not met in any of the Member States, of 
the Member State in which the seat of the Office Is located. 
- 99 -
The competent courts shall have Jurisdiction In respect of Infringements 
alleged to have been committed in any of the Member States. 
3. Proceedings relating to actions In respect of claims for Infringement may 
also be brought in the courts for the place where the harmful event 
occurred. In such cases, the court shall have Jurisdiction only in 
respect of infringements alleged to have been committed in the territory 
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 2 or 3. 
Article 98 
Supplementary provisions 
1. Actions for claiming entitlement pursuant to Article 95 shall not be 
considered to fail under the provisions of Article 5(3) and (4) of the 
Convention. 
2. Notwithstanding Article 97, Articles 5(1), 17 and 18 of the Convention 
shalI apply. 
3. For the purposes of applying Articles 97 and 98, the domicile or seat of a 
party shall be determined pursuant to Articles 52 and 53 of the 
Convent ion. 
- 100 -
Article 99 
Rules of procedure applicable 
Where Jurisdiction lies with national courts pursuant to Articles 97 and 98, 
the rules of procedure of the relevant State governing the same type of action 
relating to corresponding national industrial property rights shall apply 
without prejudice to Articles 100 and 101. 
Article 100 
Entitlement to bring an action for infringement 
1. Actions for infringement may be brought by the holder. Persons enjoying 
exploitation rights may bring such actions only If the holder consents 
thereto. 
2. Any person enjoying exploitation rights shall, for the purpose of 
obtaining compensation for damage suffered by him, be entitled to 
intervene in an infringement action brought by the holder. 
Article 101 
Obligation of national courts or other bodies 
A national court or other body hearing an action relating to a Community plant 
variety right shall treat the Community plant variety right as valid. 
- 101 -
Article 102 
Stay of proceedings 
1. Where an action relates to claims pursuant to Article 95(4) and the 
decision depends upon the protectablIIty of the variety pursuant to 
Article 6, this decision may not be given before the Office has decided on 
the appiI cat ion. 
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 19 or 20 have been initiated, the proceedings may be 
stayed insofar as the decision depends upon the validity of the Community 
plant var iety r ight. 
Article 103 
Penalties for Infringement of Community plant variety rights 
Member States shall ensure that on 1 July 1992 at the latest the same 
provisions are made applicable to penalize infringements of Community plant 
variety rights as apply in the matter of Infringements of corresponding 
national industrial property rights. 
- 102 -
PART SEVEN 
Budget, financial control, Community implementing provisions 
- 103 -
Article 104 
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 80 under the fees regulations adopted in 
accordance with Article 108 and, to the extent necessary, a subsidy from 
the general budget of the European Communities, entered under a specific 
heading of the Commission Section. 
Article 105 
Preparation of the budget 
1. The President shall draw up each year an estimate of the Office's revenue 
and expenditure for the following year and shall send it to the Commission 
not later than 31 March each year, together with an establishment plan and 
an opinion from the Administrative Council. 
2. The Commission shall annex the estimate to the preliminary draft budget of 
the European Communities. The Commission may attach an opinion on the 
estimate along with an alternative estimate. If a subsidy under 
Article 104(3) is necessary, the Commission may propose such amendment of 
the estimate as it considers requisite. 
3. The Office's budget shall be adopted by the budget authority in accordance 
with the same procedure as the general budget. 
- 104 -
4. Where appropriations for unforeseen expenditure are contained In a budget, 
the use thereof shall be subject to the prior approval of the 
Administrative Council. 
Article 106 
Control 
1. Not later than 31 March each year the President shall send the Commission 
and the Court of Auditors accounts of the Office's total revenue and 
expenditure for the preceding financial year. The Court of Auditors shall 
examine them in accordance with Article 206a of the Treaty. 
2. The European Parliament shall give a discharge to the President of the 
Office in accordance with the procedure laid down in Article 206b of the 
Treaty. 
3. Control of commitment and payment of all expenditure and control of the 
existence and recovery of all revenue of the Office shall be carried out 
by the Financial Controller of the Commission. 
Article 107 
Financial provisions 
The Financial Regulations applicable to the general budget of the European 
Communities shall apply to the Office. 
Article 108 
Fees regulations 
1. The Fees regulations shall determine in particular the circumstances under 
which fees are due pursuant to Article 80(1), the amounts of the fees to 
be paid and the ways in which they are to be paid. 
- 105 -
2. Fees shall be provided for at least in respect of the fol lowing off Ida I 
acts: 
(a) the processing of applications for grant of a Community plant 
variety right, comprising the following measures: 
- the formal examination, 
- the substantive examination, 
- the examination of the variety denomination, 
- the decision, 
- any not Ices; 
(b) the arranging or carrying out of the technical examination; 
(c) the processing of an appeal including the decision. 
3. The amounts of the fees shall be fixed in such a manner that, after a 
transitional period, the Office's revenue covers at least its total 
variable expenditure. 
4. The fees regulations shall be adopted in accordance with the procedure 
laid down in Article 110, after consultation of the Administrative Council 
on the draft of the measures to be taken. 
Article 109 
Other implementing provisions 
1. Detailed implementing rules shall be adopted for the purpose of applying 
this Regulation. They shall in particular include provisions defining the 
relationship between the Office and the Examination Offices, agencies or 
its own sub-offices referred to in Articles 29(4) and 54(1) and (2), and 
may include provisions on matters referred to In Article 38(1) second 
sentence, (2), (5) and (6). 
2. The procedure of the Boards of Appeal shall be determined in rules of 
procedure of the Boards of Appeal. 
3. The implementing rules and the rules of procedure of the Boards of Appeal 
shall be adopted in accordance with the procedure laid down In Article 
110, after consultation of the Administrative Council on the draft of the 
measures to be taken. 
- 106 -
Article 110 
Procedure 
The Commission sha11 be assisted by a committee of an advisory nature composed 
of the representatives of the Member States and chaired by the representative 
of the Commission. 
The representative of the Commission shall submit to the committee a draft of 
the measures to be taken. The committee shall deliver its opinion on the draft, 
within a time limit which the chairman may lay down according to the urgency of 
the matter, if necessary by taking a vote. 
The opinion shall be recorded in the minutes; in addition, each Member State 
shall have the right to ask to have its position recorded in the minutes. 
The Commission shall take the utmost account of the opinion delivered by the 
committee. It shall inform the committee of the manner in which its opinion has 
been taken Into account. 
- 107 -
PART EIGHT 
Transitional and final provisions 
- 108 -
Article 111 
Derogations 
1. Notwithstanding Article 10(1)(a), a variety shall be deemed to be new also 
In cases where Individuals thereof were disposed of to others In the 
territory of the Community for commercial purposes, within four years, in 
the case of vine or tree species within six years, before the entry into 
force of this Regulation, if the date of application is within one year of 
that date. 
2. Notwithstanding Article 51(2), the applicant for the grant of Community 
plant variety rights may claim the priority of an earlier application in 
one of the Member States also in cases, where the earlier application was 
filed within four years, in the case of vine or tree species within six 
years, before the entry into force of this Regulation, if the date of 
application is within one year of that date. The first sentence shall 
apply also to cases where the property right has already been granted In 
the Member State concerned and is still valid. 
Article 112 
Transitional provisions 
The Office shall be established in good time to assume fully the tasks 
incumbent upon it pursuant to this Regulation as from 1 July 1992. 
- 109 -
Article 113 
Entry Into force 
This Regulation shall enter into force on 1 April 1991. 
Articles 1, 2, 3, 5 to 28 and 48 to 102 shall apply from 1 July 1992. 
This Regulation shall be binding in its entirety and directly applicable in all 
Member States. 
Done at Brussels; For the Commission 
- 110 -
FINANCIAL STATEMENT 
concerning : 
A proposal for a Council Regulation (EEC) on Community plant variety rights (1) 
1. Budget heading : I I IB item : 5101 Title : Realisation of the Internal 
market In the field of 
agrI culture 
2. Legal basis : art. 43 
3. ClassiflcatIon : Non-compulsory expenditure 
i . _—__ 
4. Purpose / description of the measure : In order to permit the Introduction of 
Community-wide plant breeders'rIghts In the context of the single market, It Is 
necessary to set up a Community variety office. 
5. Method of calculation : 
5.1 Form of expenditure : Participation In the administrative costs of the office. 
5.2 Community contribution : Subsidy based on real needs. 
5.3 Ca leu I at ion -. Total estimated administrative costs of the office amount to 
3.5 MECU per year. This includes accomodation and staffing (2,0 MECU, assuming 
20 staff members) as well as the var lable costs of the office (1,5 MECU, trials 
costs, reimbursement for activities of national Institutions, Inspection of 
triais, meetings, translation, etc.). Trials costs of 0,5 MECU would be charged 
entirely to plant breeders from the beginning. The remaining variable costs 
initially to be covered by the Community would be phased out over a 3 year period 
after the first year of full establishment of the office. I.e. 1994. 
6. Financial Implication as regards operating appropriations : 
6.1 Schedule of appropriations (m ECU) 
Year 
1991 p.m 
1992 0.8 (2) 
1993 1.5 (2) 
1994 3.0 (3) 
1995 2.7 
1996 2.4 
Following years 2.0 max. 
TOTAL 91-96 10.4 
6.2 Financing during current year : nil 
7. Observât Ions -. 
(1) This measure appears in the Commission's White Paper for completing the Internal 
market in the field of agriculture. 
(2) Only half of the staff foreseen will be engaged In the first two years. 
(3) It is estimated that from 1994 until 1997 each year an additional 0,3-0,4 MECU of 
the var iable costs can be covered by the office's revenue from charging fees to 
plant breeders. 
- 111 -
COMPETITIVENESS AND EMPLOYMENT IMPACT STATEMENT 
I What is the main reason for introducing the measure? 
To establish a Community system for the protection of the 
breeding or the detection of new plant varieties (industrial 
property right sui generis, as established by UPOV and 
implemented by most Member States) with the aim to ensure that 
breeders may acquire, by the time of the completion of the 
internal market, protection through a single decision with 
direct and uniform effect in the whole of the Community. 
II Features of the businesses in question. In particular: 
a) Are they many SMEs° 
Plant breeders are directly concerned; merchants and users 
of material of protected plant varieties, including farmers, 
are indirectly concerned; both groups comprise many SMEs. 
b) Are they concentrated in regions which are: 
i. eligible for regional aid in the Member States? 
Not so far as Commission services are aware 
ii. eligible under the ERDF° 
Not so far as Commission services are aware 
III What direct obligations does this measure impose on businesses? 
The obligations are those which are already established under 
the current national plant breeders' rights ; merchants and users 
of material of protected plant varieties would need the consent 
of the breeder (licence). 
IV What indirect obligations are local authorities likely to impose 
on businesses? 
The Commission services can foresee none. 
V Are there any special measures in respect of SMEs? Please 
specify. 
No specific measures. 
VI What is the likely effect on: 
a) the competitiveness of businesses? 
This is"difficult to assess: one«of the reasons to safeguard 
the genuine "breeders' exemption" is to further the position 
of competitiveness of SME breeders with others. 
b) employment? 
Expected to be neutral. 
VII Have both sides cf industry been consulted? Please indicate 
their opinions 
The representatives cf plant breeders as well of users have been 
consulted through their Community organisations and have 
expressed themselves in favour of the general concept of the 
•Droi30sed scheme. 



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