Case C‑481/14

Jørn Hansson

v

Jungpflanzen Grünewald GmbH

(Request for a preliminary ruling from the Oberlandesgericht Düsseldorf)

‛Reference for a preliminary ruling — Intellectual and industrial property — Community plant variety rights — Regulation (EC) No 2100/94 — Infringement — Reasonable compensation — Compensation for damage — Costs of proceedings and out-of-court expenses’

Summary — Judgment of the Court (Fifth Chamber), 9 June 2016

Article 94 of Regulation No 2100/94 on Community plant variety rights must be interpreted as meaning that the right to compensation which it establishes for the holder of a plant variety right that has been infringed encompasses all the damage sustained by that holder, although that article cannot serve as a basis either for the imposition of a flat-rate ‘infringer supplement’ or, specifically, for the restitution of the profits and gains made by the infringer. Article 94 of that regulation establishes for the holder of a Community plant variety right an entitlement to compensation which not only is full but which also rests on an objective basis, that is to say, it covers solely the damage which he has sustained as a result of the infringement. Therefore, Article 94 of the regulation does not permit an infringer to be ordered to pay a flat-rate ‘infringer supplement’, since such a supplement does not necessarily reflect the damage suffered by the holder of the variety infringed, although Directive 2004/48 on the enforcement of intellectual property rights does not prevent the Member States from laying down measures that are more protective. Similarly, Article 94 does not permit the holder of a Community plant variety right to claim restitution of the gains and profits made by an infringer. In fact, both the ‘reasonable compensation’ and the amount of compensation payable under Article 94(2) of Regulation No 2100/94 must be set on the basis of the damage suffered by the injured party and not on the basis of the profit made by the person who committed the infringement. (see paras 33, 40, 41, 43, operative part 1)

The concept of ‘reasonable compensation’, provided for in Article 94(1) of Regulation No 2100/94 on Community plant variety rights, must be interpreted as meaning that it covers, in addition to the fee that would normally be payable for licensed production, all damage that is closely connected to the failure to pay that fee, which may include, inter alia, payment of default interest. It is for the national court to determine the circumstances which require that fee to be increased, bearing in mind that each of them may be taken into account only once for the purpose of determining the amount of reasonable compensation. In that regard, in order to determine the amount of reasonable compensation payable in a case of infringement, the amount of the fee which would be payable for ordinary licensed production of the plant variety in the same area, as referred to in Article 14(3) of Regulation No 2100/94, can be said to constitute an appropriate basis for calculation. In addition, loss or damage that is closely connected to failure to pay that compensation may include default interest because of the late payment of the fee payable in the normal course of events, particularly if the contractual term is one which reasonable, informed contracting parties would have included, provided that the licence fee used as a reference does not include such interest. (see paras 48, 52-54, operative part 2)