Under the provisions of Article 63 of Regulation No 40/94, which was framed in terms identical to those of Article 73 of Regulation No 2100/94, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) by reviewing the way in which they have applied EU law, specifically in the light of the factual evidence placed before those Boards. Accordingly, within the limits laid down in Article 63 of Regulation No 40/94, the General Court may carry out a full review of the legality of decisions of the Boards of Appeal of OHIM, if necessary examining whether the Board of Appeal concerned made a correct legal characterisation of the facts of the dispute or whether its appraisal of the facts placed before it was flawed. The General Court has a similar jurisdiction as regards the review of the legality of decisions of the Community Plant Variety Office or of its Boards of Appeal.

In accordance with recital 3 in the preamble to Regulation No 2506/95 amending Regulation No 2100/94 on Community plant variety rights, Article 73 of Regulation No 2100/94 was amended in order to align the rules on actions which may be brought against decisions of the Community Plant Variety Office or its Boards of Appeal with the rules laid down in Regulation No 40/94 on the Community trade mark.

The Community Plant Variety Office’s task 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. Given that broad discretion, the CPVO may, if it considers it necessary, take account of facts and evidence which are submitted or produced out of time. As a body of the European Union, the CPVO is subject to the principle of sound administration, in accordance with which it must examine all the relevant particulars of a case with care and impartiality and gather all the factual and legal information necessary to exercise its discretion and it must ensure the proper conduct and effectiveness of proceedings which it sets in motion. Under Article 55(4) of Regulation No 2100/94 on Community plant variety rights, the CPVO is to determine, through general rules or through requests in individual cases, when, where and in what quantities and qualities the material for the technical examination and reference samples are to be submitted. In view of the discretion which the CPVO enjoys, Article 55(4) of Regulation No 2100/94 cannot be interpreted as preventing it from making a separate request for plant material to be examined and for documentary evidence relating to that material. Under Article 55(4) of Regulation No 2100/94, a request in an individual case may relate to the quality of the plant material. In the light of the principle of sound administration and the need to ensure the proper conduct and effectiveness of proceedings, and inasmuch as the CPVO finds that the initial request lacked precision, it is for the CPVO to ask the applicant for the Community plant variety right to send it plant material which meets the requirements set in a new request in an individual case.

Consequently, the CPVO, without exceeding its discretion, has the right to define conditions which must be met if an application for a Community plant variety right is to be examined, provided that the period within which the applicant for that right must respond to a request made to him in an individual case has not expired. The CPVO may therefore address a new request for submission of plant material to the applicant for that right.

(see paras 47, 48, 50-55)