That being so, the broad discretion enjoyed by the CPVO in the exercise of its functions cannot allow it to avoid the technical rules that regulate the conduct of the technical examinations without breaching the duty of good administration and its obligations of care and impartiality. In addition, the binding nature of those rules, including for the CPVO, is confirmed by Article 56(2) of Regulation No 2100/94 which requires that the technical examinations are carried out in accordance with those roles. Therefore, the Board of Appeal was right to find that the CPVO granted a Community plant variety right for the candidate variety on the basis of an improper technical examination, since that Community plant variety right was granted without the CPVO possessing the evidence establishing that the additional characteristic of the candidate variety had been examined over the course of two crop production cycles, in violation of the technical protocols adopted by the CPVO.

The task of the Community Plant Variety Office (CPVO) is characterised by the scientific and technical complexity of the conditions governing the examination of applications for Community plant variety rights and, accordingly, the CPVO must be accorded a broad discretion in carrying out its functions. That broad discretion extends, inter alia, to verifying whether that variety has distinctive character for the purpose of Article 7(1) of Regulation No 2100/94 on Community plant variety rights.

While it is true that the Board of Appeal of the Community Plant Variety Office (CPVO) enjoys broad discretion in respect of the opportunity of ruling, itself, on an application or of remitting the case to the competent body of the CPVO, the fact remains that, when it decides to exercise a power which lies within the competence of the CPVO, it is required to examine carefully and impartially all the relevant particularities of a Community plant variety right application and to gather all the factual and legal information necessary to exercise its discretion. The CPVO, as a body of the European Union, is subject to the principle of sound administration. It must furthermore ensure the proper conduct and effectiveness of proceedings which it sets in motion.

Pursuant to Article 56(2) of Regulation No 2100/94 on Community plant variety rights and Article 22(1) and Article 23(1) of Regulation No 1239/95 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the Community Plant Variety Office (CPVO), the President of the CPVO is empowered to insert a new characteristic for the examination of the candidate variety. Only the flexibility that allows such a power is also capable of ensuring the objectivity of the procedure for granting Community plant variety rights. Thus, an application for a Community plant variety right may not be rejected solely on the ground that the characteristic of an examined variety, found during the technical examination and decisive for assessing the distinctiveness of that variety in comparison with other varieties, is not referred to in either the technical questionnaire completed by the applicant or in the relevant test guidelines and protocols. With regard to the broad discretion conferred on the CPVO, it may, if it considers it necessary, take account of facts and evidence submitted or produced by the parties out of time. It must be recognised to have such a right, a fortiori, when the evidence relevant to the examination of the distinctiveness of a variety is found during the objective procedure which constitutes the technical examination undertaken by the CPVO and completed by a national examination office.

As to the time when the President of the CPVO may exercise his power under Article 23(1) of Regulation No 1239/95, none of the provisions of that regulation or of Regulation No 2100/94 precludes the insertion of a new characteristic intervening following the completion of the technical examination, given that such a characteristic was found when conducting that examination. In that regard, the fact that the President of the CPVO inserts a new characteristic, the presence of which was found only during the technical examination of a variety, cannot in itself constitute infringement of the principle of legal certainty with regard to third parties, the protected variety of which was chosen as a variety to be used as a reference in light of that technical examination. That cannot give rise to expectations as regards the extent of that examination and the nature of the distinctive characteristics examined.

(see paras 52, 55-57, 61, 66)