EN Official Journal of the European Union C 388/18

Action brought on 28 July 2014 — Ackermann Saatzucht a.o. v Parliament and Council

(Case T-559/14)

2014/C 388/22

Language of the case: English

Parties

Applicants: Ackermann Saatzucht GmbH & Co. KG (Irlbach, Germany); Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG (Hohenmocker, Germany); Deutsche Saatveredelung AG (Lippstadt, Germany); Ernst Benary, Samenzucht GmbH, (Hann. Münden, Germany); Freiherr Von Moreau Saatzucht GmbH (Osterhofen, Germany); Hybro Saatzucht GmbH & Co. KG (Kleptow, Germany); Klemm + Sohn GmbH & Co. KG (Stuttgart, Germany); KWS Saat AG (Einbeck, Germany); Norddeutsche Pflanzenzucht Hans-Georg Lembke KG (Hohenlieth, Germany); Nordsaat Saatzuchts GmbH (Halberstadt, Germany); Peter Franck-Oberaspach (Schwäbisch Hall, Germany); P.H. Petersen Saatzucht Lundsgaard GmbH (Grundhof, Germany); Saatzucht Streng — Engelen GmbH & Co. KG (Uffenheim, Germany); Saka Pflanzenzucht GmbH & Co. KG (Hamburg, Germany); Strube Research GmbH & Co. KG (Söllingen, Germany); Gartenbau und Spezialkulturen Westhoff GbR (Südlohn-Oeding, Germany); and W. von Borries-Eckendorf GmbH & Co. KG (Leopoldshöhe, Germany) (represented by: P. de Jong, P. Vlaemminck and B. Van Vooren, lawyers)

Defendants: Council of the European Union and European Parliament

Form of order sought

The applicants claim that the Court should:

— declare the action in annulment admissible;

— annul Regulation (EU) No 511/2014 of the European Parliament and of the Council of 16 April 2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation in the Union (OJ L 150, p. 59); and

— order the European Parliament and the Council to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1. First plea in law, alleging that the EU is a contracting party to the International Convention for the Protection of New Varieties of Plants, implemented in the EU by the Regulation on Community Plant Variety Rights (1). Article 15 (c) of that Regulation recognizes the so-called breeders’ exemption, namely that the scope of Plant Variety Rights does not extend to ‘acts done for the purpose of breeding, or discovering and developing new varieties.’ The contested measure is a severe restriction of the breeders’ exemption, thus violating a binding and directly effective international obligation of the EU. Furthermore, the breeders’ exemption is recognized in Article 27 of the Unified Patent Court Agreement (UPCA). Although the EU is not a party to that agreement, the contested measure essentially demands that the Member States violate their international obligations deriving from the UPCA.

2. Second plea in law, alleging that as a contracting party to the Convention on Biological Diversity, and under Article 3 (5) TEU, the European Union is bound to support the preservation of biodiversity of the Earth. The contested Regulation will have a significant chilling effect on all efforts pertaining to the protection of plant biodiversity, thus impinging upon this international obligation.

3. Third plea in law, alleging that the contested measure is solely based on Article 192 (1) TFEU. It is consistent case-law that the legal basis of a measure must be based on objective factors amenable to judicial review. Insofar as the measure seeks to organize compliance measures for users on the EU internal market, the Regulation should have been based on Article 114 TFEU. The choice of legal basis has ramifications for the content of the act, since the objectives for which the legal bases can be used are entirely different, thus substantially affecting the legislative process.

4. Fourth plea in law, alleging that the Regulation manifestly violates the principle of proportionality laid down in Article 5 (4) TEU insofar as: first, the impact assessment was devoid of link between quantitative data and the conclusions which were purely based on ‘qualitative’ arguments; second, it manifestly failed to take account of the plant breeding sector as being severely and distinctly impacted due to the fact that genetic resources are the very essence of the sector, and not merely an ancillary part of its activities; third, the Regulation imposes manifestly disproportionate restrictions of Article 16 of the EU Charter; fourth, it imposes a de facto eternal obligation on the plant breeding sector to record and keep information on their activities; finally, less onerous measures are available, as is illustrated by the ‘International Treaty on Plant Genetic Resources for Food and Agriculture’.

5. Fifth plea in law, alleging that the contested Regulation creates a manifest situation of legal uncertainty for plant breeders insofar as: first, its scope of application depends on whether or not States choose to exercise sovereignty over genetic resources; second, it relies on open-ended definitions which do not permit establishing whether a genetic resources is considered to have been ‘utilized’; third, due to the fact that its open-ended interpretation leads to a possible de facto retroactive application; finally, due to the fact that the development of best practices merely ‘may’ reduce the risk of non-compliance for users subject to the contested measure.

(1) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ L 227, p. 1).