9.

In the judgment under appeal, the facts giving rise to the dispute were set out as follows: ‘1. On 18 January 1999, the Konsortium Südtiroler Baumschulen (“KSB”), the predecessor in title of the applicant, [Schniga], filed an application for a Community plant variety right at the [CPVO], pursuant to [Regulation No 2100/94]. 2. That application was registered under number 1999/0033. 3. The Community plant variety right was sought for the apple variety (Malus Mill) Gala Schnitzer. 4. The CPVO requested the Bundessortenamt (German Federal Plant Variety Office) to carry out the technical examination referred to in Article 55(1) of Regulation No 2100/94. 5. By letter of 26 January 1999, sent to KSB’s representative, the CPVO requested KSB to submit to it, and also to the Bundessortenamt, the material necessary for the technical examination, that is to say, 10 dormant shoots for grafting, between 1 March and 15 March 1999. The CPVO also stated that KSB was responsible for complying with all phytosanitary and customs requirements applicable to the delivery of the material. 6. The Bundessortenamt received that material on 9 March 1999. 7. By letter of 25 March 1999, sent to KSB’s representative, the CPVO acknowledged receipt of the material requested and stated that that material had been delivered to the Bundessortenamt in good condition and in time, but that it was not accompanied by a phytosanitary certificate. The CPVO asked KSB to ensure that that essential document would be provided as soon as possible. 8. On 23 April 1999, KSB sent a European plant passport to the Bundessortenamt and stated that the authority which had issued it, namely the Plant Protection Service of the autonomous province of Bolzano (Italy), had stated that that document served as a phytosanitary certificate. 9. By email of 3 May 1999, the Bundessortenamt informed KSB that the material had arrived in time, that it was appropriate, and that the European plant passport provided was sufficient for the purpose of carrying out the technical examination and determining whether the substantive conditions for the grant of a Community plant variety right had been met. It did, however, request a copy of an official certificate confirming that the material sent was virus-free. 10. In 2001, KSB informed the Bundessortenamt that it was impossible for it to provide the phytosanitary certificate requested, because it had emerged that the material sent in March 1999 for the purposes of the technical examination was infected by latent viruses. 11. By email of 4 May 2001, the Bundessortenamt informed the CPVO that it intended to uproot the infected material, in order to prevent the virus spreading to other plants, and proposed that the CPVO request KSB to submit new, virus-free material in order to restart the technical examination. 12. By email of 8 May 2001, sent to the Bundessortenamt, the CPVO agreed that the infected material should be uprooted and stated that it had decided to ask KSB to submit new, virus-free material for March 2002. It also stated that, since the instructions on the submission of material had not specified that it had to be virus-free, but merely that it had to comply with the European plant passport requirements, KSB could not be held liable for the situation, that it would be unfair to refuse the application concerning the Gala Schnitzer variety and that, therefore, the solution proposed appeared to be the best one. 13. By email of 13 June 2001, the CPVO informed KSB that, in consultation with the Bundessortenamt, it had decided to authorise KSB, in so far as its instructions on the submission of plant material and the necessary health status of that material had not been sufficiently clear, to provide new, virus-free material, accompanied by a phytosanitary certificate confirming that that was the case, to the Bundessortenamt in March 2002, in order to restart the examination of the application concerning the Gala Schnitzer variety. 14. On completion of the new technical examination, the Bundessortenamt concluded, in its final report dated 16 December 2005, that the Gala Schnitzer variety was distinct from the closest reference variety, that is to say, the Baigent variety, on the basis of the additional characteristic “Fruit: width of stripes”. 15. On 5 May 2006, the interveners, Elaris SNC and Brookfield New Zealand Ltd, the licensee and holder respectively of the plant variety right relating to the Baigent reference variety, lodged with the CPVO, pursuant to Article 59 of Regulation No 2100/94, objections to the grant of a right for the Gala Schnitzer variety. 16. The objections were based on the earlier right in respect of the apple variety (Malus Mill) Baigent. 17. The pleas in law relied on in support of the objections were, first, that covered by Article 61(1)(b) of Regulation No 2100/94, on the ground that the applicant’s failure to comply with the requirements for submitting material for the technical examination, set out in the CPVO’s letters of 26 January and 25 March 1999, ought to have led the CPVO to refuse the application relating to the Gala Schnitzer variety, and, second, the plea in law covered by Article 7 of Regulation No 2100/94, on the ground that the Gala Schnitzer variety is not distinct from the Baigent variety. 18. On 14 December 2006, the President of the CPVO approved the use of the additional characteristic “Fruit: width of stripes” for establishing the distinctness of the Gala Schnitzer variety. 19. By decisions EU 18759, OBJ 06-021 and OBJ 06-022 of 26 February 2007, the committee responsible for deciding on objections to the grant of Community plant variety rights (“the committee”) granted a Community plant variety right for the Gala Schnitzer variety and dismissed the objections. 20. On 11 April 2007, the interveners filed notice of appeal with the Board of Appeal of the CPVO, under Articles 67 to 72 of Regulation No 2100/94, against those three decisions. 21. By [the contested decision], the Board of Appeal annulled the decision granting a Community plant variety right for the Gala Schnitzer variety and also the decisions dismissing the objections, and the Board of Appeal itself refused the application concerning the Gala Schnitzer variety. In particular, it found that Article 61(1)(b) of Regulation No 2100/94 did not allow the CPVO to authorise KSB to submit new material, since KSB had not complied with the request in an individual case, within the meaning of Article 55(4) of Regulation No 2100/94, by which the CPVO had requested it to provide a phytosanitary certificate confirming that the material submitted was virus-free.’