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The General Court summarised the background to the case, in paragraphs 22 to 43 of the judgment under appeal, as follows: ‘22 On 18 January 1999, the Konsortium Südtiroler Baumschuler, the predecessor in title of the applicant, [Schniga], filed an application for a Community plant variety right at the CPVO, pursuant to [the basic regulation] … That application was registered under number 1999/0033. The plant variety for which the right was sought is the apple variety of the species Malus Mill with the denomination Gala Schnitzer (“the candidate variety”). 23 In February 1999, the CPVO requested the Examination Office of the Bundessortenamt (German Federal Plant Variety Office, “the BSA”) established in Wurzen (Germany) to conduct the technical examination of the candidate variety pursuant to Article 55(1) of [the basic regulation]. For the purposes of that examination, the variety Baigent (“the reference variety”), considered to be closest to the candidate variety, was used as the comparable variety. 24 In 2001, the plant material submitted by Schniga for the technical examination proved to be virus-infected. The technical examination was therefore stopped, and then resumed in spring 2002, after Schniga had been allowed by the CPVO to submit new, virus-free, material of the candidate variety. It continued throughout 2003 and 2004 … 25 By letter of 18 January 2005, the BSA informed the CPVO as follows: “[On] January 13th 2005 we sent you the interim report on the DUS-examination of the [candidate] variety on behalf of the [CPVO]. We consider this candidate variety distinct from the [reference] variety, on the basis of a characteristic which for the time being is not listed in the CPVO [Protocol] TP 14/1, “Flower: colour of base of filament (after anther dehiscence)” … … [Evidence was given] that the concerned characteristic is sufficiently consistent and repeatable, exhibits sufficient variation between varieties and thus enables to establish distinctness … From this background, the concerned characteristic has also been proposed for inclusion during the revision of [UPOV Protocol TG/14/9], but was dropped off in order to reduce the number of characteristics down to a reasonable amount. Our intention was supported and we were recommended to send with the interim report a request for authorisation to use this characteristic as an additional one, in accordance with CPVO [Protocol] TP/14/1, paragraph III, chapter 3.” 26 The CPVO sent a further interim report to Schniga on 7 February 2005, again with the result “no remarks”. 27 On 19 December 2005, the BSA sent its final technical examination report to the CPVO and to Schniga (“the final examination report”), stating that the candidate variety was uniform, stable and distinct from the reference variety, on the basis of the characteristic “Fruit: Width of stripes”. 28 At point 9, under the heading “Date and/or document number of national Test Guidelines”, the final examination report states: “2003 03-27 CPVO TP/14/1”. 29 It is clear from points 16 and 17 of the final examination report, concerning the comparison of the candidate variety with the reference variety, that the candidate variety has broad stripes (note 7), whilst the reference variety has narrow to medium stripes (note 4), that assessment being based on the evaluation of an additional characteristic “Fruit: width of stripes”, corresponding to characteristic No 40 of UPOV Protocol TG/14/9 of 6 April 2005 (“the additional characteristic at issue”). The CPVO notes in that regard that the additional characteristic at issue did not appear either in [CPVO Protocol TP/14/1] or in [UPOV Protocol TG/14/8] … 30 By letter of 24 January 2006, the CPVO informed the BSA that incorrect guidelines had been cited in the final examination report and that it was not CPVO Protocol TP/14/1 (adopted in March 2003) but UPOV Protocol TG/14/8 (adopted in 1995) that ought to have been used as the basis for the examination report, for it was the latter that was in force at the date on which the decision was taken to test the candidate variety in January 1999. 31 On 9 February 2006, the BSA sent the CPVO an amended version of the final examination report. Point 17 of that version reads: “The variety was tested according to [UPOV Protocol TG/14/8]. The variety description was produced on the basis to the table of characteristics of the [CPVO Protocol] TP/14/1 from 27 March 2003 which came into force during the testing period. This allows the [candidate] variety to become part of the reference collection for varieties with later priority. The variety is distinct, uniform and stable according to both [protocols].” 32 On 5 May 2006, the interveners, Brookfield New Zealand Limited and Elaris SNC, the licensee and the holder, respectively, of the plant variety right relating to the reference variety, lodged with the CPVO, pursuant to Article 59 of [the basic regulation], objections to the grant of the plant variety right sought for the candidate variety. Those objections were based on the earlier right in respect of the reference variety. 33 The pleas in law relied on in support of the objections were: first, the plea covered by Article 61(1)(b) of [the basic regulation] that Schniga’s failure to comply with the requirements for submitting material for the technical examination, laid down by the CPVO, ought to have led the latter to refuse the application for a plant variety right and, second, the plea covered by Article 7 of that regulation, that the candidate variety is not distinct from the reference variety. 34 By decision of 14 December 2006, followed by a corrigendum of 5 February 2007, the President of the CPVO authorised the use of the additional characteristic at issue in order to establish distinctness between the candidate variety and the reference variety. However, that decision makes no mention of the additional characteristic “anthacyanin coloration at the basement of the filaments”, also referred to in the final examination report. The decision in question is expressly based on Article 23 of [the implementing regulation]. 35 By decisions of 26 February 2007, the CPVO committee responsible for deciding on objections to the grant of Community plant variety rights granted the plant variety right sought for the candidate variety (“the decision granting a plant variety right”) and dismissed the objections (“the decisions dismissing the objections”). It based its decision on, inter alia, the fact that, “for technical reasons”, taking the additional characteristic at issue into account was warranted, even though the latter was not referred to in the protocols in force on the date of the application for a plant variety right. 36 On 11 April 2007, both the interveners filed a notice of appeal with the Board of Appeal of the CPVO [(“the Board of Appeal”)], under Articles 67 to 72 of [the basic regulation], against the decision granting a plant variety right and the decisions dismissing the objections. 37 By decision of 21 November 2007 in Joined Cases A 003/2007 and A 004/2007, the Board of Appeal upheld those appeals, cancelled the decision granting a plant variety right and the decisions dismissing the objections, and rejected the application for a plant variety right; the Board gave a decision only on the first of the two pleas outlined in paragraph 33 above … 38 Following an action for annulment brought by Schniga before the General Court, the decision of the Board of Appeal of 21 November 2007 was annulled by judgment of 13 September 2010, Schniga v CPVO — Elaris and Brookfield New Zealand (Gala Schnitzer) (T‑135/08, …, EU:T:2010:397). The appeal lodged against that judgment was dismissed by judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga (C‑534/10 P, …, EU:C:2012:813). 39 The Board of Appeal thereupon resumed examination of the appeals brought by the interveners in the light of the second plea outlined in paragraph 33 above, criticising the CPVO for granting the right sought to a variety that was not distinct. By [the decisions at issue], the Board of Appeal again cancelled the decision granting a plant variety right and the decisions dismissing the objections and rejected the application for a plant variety right. 40 On the one hand, on the basis of Article 56(2) of [the basic regulation] and Articles 22 and 23 of [the implementing regulation], the Board of Appeal held in essence that: — the protocol and test guidelines in force for the purposes of the technical examination were, at the material times, UPOV Protocol TG/14/8 … and CPVO Protocol TP/14/1 … (paragraph 19 of the [decisions at issue]); — those protocols do not mention the additional characteristic at issue; — neither in the technical questionnaire nor during the test period had Schniga submitted a request for the additional characteristic at issue to be taken into account under Section III 6 of CPVO Protocol TP/14/1 (paragraph 21 of the [decisions at issue]); — the additional characteristic at issue was not mentioned in the BSA’s letter to the CPVO of 18 January 2005 and the BSA had made no request to the CPVO concerning it; it was mentioned for the first time in the final examination report, and subsequently in the decision of the President of the CPVO of 14 December 2006 authorising its use (paragraph 22 of the [decisions at issue]); — in those circumstances, the fact that the BSA took into account, for the purposes of the technical examination, an additional characteristic not listed in CPVO Protocol TP/14/1 in force at that time constituted an infringement of Section III 3 of that protocol (paragraph 25 of the [decisions at issue]); — the decision of the President of the CPVO of 14 December 2006 to permit retrospectively the use of that additional characteristic in the technical examination was fundamentally flawed, coming as it did some 12 months after the final examination report, and it cannot be justified, particularly in the light of Article 22(2) of [the implementing regulation] (paragraph 26 of the [decisions at issue]). 41 In paragraph 27 of the [decisions at issue], the Board of Appeal made reference in that connection to its decision of 8 October 2009 in Case A 010/2008 (JEWEL), according to which the use of an additional characteristic must receive the prior approval of the President of the CPVO in order to ensure legal certainty, objectivity in the handling of applications for grant of a plant variety right and the predictability of the behaviour of all the players concerned. 42 On the other hand, the Board of Appeal held, in paragraphs 28 and 29 of the [decisions at issue], that the technical examination in the light of the additional characteristic at issue had in any event also been flawed by the fact that it had taken place over a period of one year only, that is to say, 2005, as acknowledged by the BSA, whereas all other characteristics had been assessed in the two consecutive growing seasons 2004 and 2005. In its opinion, that constituted a clear infringement of the protocols and guidelines applicable in the present case, in particular, UPOV TG/1/3 and UPOV TG/14/8, which require for apple varieties an examination over at least two fruiting seasons in order to establish uniformity and stability. 43 Consequently, the Board of Appeal found, in paragraphs 30 and 31 of the [decisions at issue], that the candidate variety could not be held to be legally distinct from the reference variety.’