77

By letter sent to the Board of Appeal on 30 March 2009, the applicant set out a series of criticisms and objections both with regard to the minutes of the hearing and with regard to the conduct of that hearing, on 23 January 2009, which, he claims, were seriously flawed. He offers, before the General Court, to produce witness evidence to prove this. That letter contains, inter alia, the following claims: ‘2. Imprecise account of the alleged agreement concluded between the [CPVO] and the Bundessortenamt (a) The account on p. 2 of the minutes, according to which the [CPVO] “subsequently” forwarded a copy of the agreement which it had concluded with the Bundessortenamt, gives a distorted and therefore inaccurate image of events. The applicant did not have the opportunity to comment on the “agreement” produced by the [CPVO] before the Board of Appeal took its decision on the participation of Ms Menne in the hearing. In actual fact, just before the deliberations, the [CPVO] forwarded to the Board of Appeal a document without also sending that document to the applicant. It was only during the subsequent interruption of the hearing, when the Board of Appeal had already retired to carry out its deliberations, that the applicant was provided with a copy of a document entitled “EXAMINATION OFFICE — DESIGNATION AGREEMENT”. The applicant did not have any opportunity to comment on that document before the deliberations and the Board’s decision. That is why the applicant argues that there has been an infringement of his right to be heard. When, after its deliberations, the Board announced its decision that Ms Menne should participate in the hearing, it based its decision also on the fact that “‘no element in the agreement concluded between the CPVO and the Bundessortenamt precluded” Ms Menne’s participation in the hearing and, consequently, on the document that had been provided to it. This must be regarded as constituting a breach of Article 75 of the regulation … given that the applicant was not able to present his comments on that agreement either orally or in writing. (b) Even the objections which the applicant subsequently made to the document “EXAMINATION OFFICE — DESIGNATION AGREEMENT” produced by the [CPVO] are not included in the minutes, even though they should be taken into account in the substantive decision: The copy provided to the applicant bears no signature. The applicant expressly stated that the agreement, in any event, had no longer been valid since 31 December 2006 (see Article 11(1) of that agreement). Basing his arguments on Article 11(1) of the document, the applicant also disputed the response given by the chairman of the [CPVO] during the hearing that the agreement produced was valid at the time of the examination at issue. In accordance with that clause, the agreement was only valid from, at the earliest, 1 January 2005. That fact was not referred to in the minutes either. The statement of the chairperson of the [CPVO] that the agreement had been extended was also challenged, on account of a lack of evidence to this effect, by the applicant at the hearing, without that challenge having been reproduced in the minutes. Lastly, no mention is made either in the minutes of the direction from the Board of Appeal to the [CPVO] that it produce a valid version of the agreement. For the sake of completeness, I should also like to point out that the document sent to the applicant does not even designate the Bundessortenamt as the [CPVO]’s contracting party. Furthermore, Article 15(2) of the implementing regulation requires that the acts of the staff of the Examination Office are performed “in accordance [with the agreement]”. Consequently, only acts which are expressly provided for by the agreement are to be considered, as far as third parties are concerned, to be acts of the [CPVO]. It is not sufficient, by contrast, for the agreement “to remain silent” regarding certain acts. 3. The information provided by Ms Menne The minutes reproduce the information provided by Ms Menne at the hearing incompletely and imprecisely: (a) The most serious fault in the minutes is probably the following: During the hearing, the applicant asked Ms Menne whether the DUS examination of the variety LEMON SYMPHONY had been carried out on the plants sent by [the intervener] or on plants grown from cuttings taken from those plants. Ms Menne answered that question by stating that she could not remember and that she was therefore unable, currently, to say with certainty whether the DUS examination of the variety LEMON SYMPHONY had been carried out on the plants sent or on the next generation of plants. However, as a result, all of Ms Menne’s statements concerning the progress of the examination should be regarded as unreliable, given that it is impossible to see how she could express an opinion on an examination when she is not even aware of the subject-matter of that examination. Ms Menne’s statement that she is able to confirm that the growth regulator used on the variety LEMON SYMPHONY had no influence on the technical examination is also worthless. If Ms Menne does not remember the plants which were used for the purposes of the examination, then it is also not possible for her to establish a link between the plants and the growth regulator. The minutes also fail to mention the fact that the Board of Appeal ruled as inadmissible the applicant’s question asking Ms Menne how she explained the handwritten note in the [CPVO’s] file, according to which cuttings had been taken from the plants sent. (b) The finding on p. 4 of the minutes, according to which Ms Menne was certain as regards the fact that the influence of a growth regulator could not last more than one month, is incorrect. In actual fact, Ms Menne stated that, in her opinion, growth regulators did not produce effects on plants for more than six to eight weeks. (c) The finding in the minutes that Ms Menne confirmed that in 1997 the variety LEMON SYMPHONY was the only known variety of that type must also be regarded as imprecise. On the contrary, Ms Menne explained that “unique character” by the fact that that variety — unlike all the varieties known previously — flowered all year without a cold period. The applicant stated in reply that that characteristic bore no relation to the external appearance of the variety. That sole characteristic does not, therefore, make it possible to establish whether the variety is distinct within the meaning of Article 7 of the regulation … The Board of Appeal must take account of the aspects set out above in its decision. 4. The applicant’s offers of evidence in his pleading of 12 January 2009 In paragraphs 48 and 49 of its observations, the [CPVO] asked the Board of Appeal to reject the offers of evidence. The minutes, however, do not contain any information as to the explanations provided by the applicant concerning his offers of evidence set out in his pleading of 12 January 2009. The minutes do not mention the fact that, during the hearing, the applicant offered to produce supplementary evidence of his statement that treatment with growth regulators had effects at the time of the examination carried out in 1997. In that regard, the applicant suggested carrying out a new growing trial with plant material in bud, trimmed and chemically treated, and having that trial assessed by an independent expert. 5. Other imprecisions and omissions The minutes are characterised by further imprecisions and a series of omissions which I will summarise briefly below: (a) At the time of the decision to allow Ms Menne to participate in the remainder of the hearing, the Board of Appeal did not require that Ms Menne give her opinion “as an expert”. The corresponding finding on p. 3 of the minutes is incorrect and is inconsistent with the second paragraph of p. 4 thereof, according to which, as a party to the proceedings, Ms Menne “is part of the [CPVO]”. The fact that, so far as concerns the hearing of Ms Menne’s evidence, the Board of Appeal did not take a decision on the evidence in accordance with Article 60(1) of the implementing regulation is also a factor which points against Ms Menne’s being regarded as an expert. (b) The remark in the minutes that the applicant puts forward (solely) the fact that the DUS examination carried out in 1997 was “unreliable” is inaccurate. On the contrary, the applicant stated that his application for annulment was based on the argument that the variety LEMON SYMPHONY defined by the description of the variety dating from 1997 was not distinct since the finding relating to the expression of the characteristics was not founded on the genotype of the plant examined. 6. Request The applicant requests that the minutes of the hearing be corrected and that the inaccuracies, omissions and imprecisions be remedied. The substantive decision must be based on the conduct of the hearing as it is set out in the corrected minutes.’