2.

In the determination of the ‘reasonable compensation’ which an infringer must pay to the holder of a Community plant variety right pursuant to Article 94(1)(a) of Regulation (EC) No 2100/94 because he has effected the acts set out in Article 13(2) of that regulation without being entitled to do so, must, in addition to the normal market fee charged in the same sector for a licence to effect the acts specified in Article 13(2) of that regulation, account also be taken in an individual case of the following considerations or circumstances as factors that increase the compensation payable: (a) In the determination of the market licence fee by reference to licence agreements concluded and accounts settled for the variety in relation to which rights were infringed, the fact that, in the relevant period, as a result of special characteristics, the variety in question had a unique market position? If consideration may be given to this factor in an individual case: May the compensation be increased only if the characteristics giving rise to the variety’s unique position are included the description of the variety for the purposes of the plant variety right? (b) In the determination of the market licence fee by reference to licence agreements concluded and accounts settled for the variety in relation to which rights were infringed, the fact that, at the time when the infringing variety was introduced, the variety in relation to which rights were infringed had been very successfully marketed and, as a result, the infringer saved on the costs of introducing itself the infringing variety on to the market? (c) The fact that, in terms of time and having regard to the number of plants sold, the magnitude of the rights infringement in relation to the applicant’s variety was greater than average? (d) The consideration that the infringer, unlike a licensee, does not face the risk of having to pay a licence fee (that cannot be returned) in relation to the variety in question although the plant variety right for such variety is subject to legal challenge and may subsequently be declared null and void? (e) The fact that the infringer, unlike the usual situation in the case of licensees, was not required to account for sales on a quarterly basis? (f) The consideration that the holder of the plant variety right bears the risk in relation to inflation, which is of significance because of the significant period involved in pursuing legal action? (g) The consideration that, as a result of having to pursue legal action, the holder of the plant variety right, unlike the situation in which he obtains income through the granting of licences in relation to the variety in question, cannot plan the income to be obtained through this variety? (h) The consideration that, where rights relating to the variety in issue are infringed, the holder of those rights bears both the general risks associated with litigation and, ultimately, the risk that judgment may not be enforceable against the infringer? (i) The consideration that, in the case of an infringement of plant variety rights resulting from the unauthorised actions of the infringer, the holder of those rights is deprived of the freedom to determine whether the infringer may be allowed to use the variety in respect of which the holder holds the rights?