Proposal for a COUNCIL REGULATION (EC) amending Council Regulation (EC) 2100/94 on Community plant variety rights
Date: 1995-04-19
Institutions: European Commission
Subjects: EU office or agency, appeal to the Court (EU), industrial property, patent law, plant propagation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  19.04.1995 
COM(95)  144 final 

95/()()91(CNS) 

Proposal  for a 

COUNCIL REGULATION (EC) 

amending Council Regulation  (EC) 2100/94 on Community plant variety rights 

(presented by the Commission) 

4-

Explanatory memorandum 

Council Regulation  (EC) 2100/94 on Community plant variety rights has 
established a new Community regime which provides for the grant, at 
Community level, of plant variety rights, a specific form of industrial 
property rights system for new plant varieties. These rights will have a 
direct and uniform effect throughout the Community. 

For the purpose of the implementation of this Regulation, a Community Plant 
Variety Office, hereinafter referred to as "the Office", has been 
established on 01.09.1994, the date of entry into force of the Regulation. 

The Office is responsible for taking the decisions required under the 
regime. 

The Office may in particular take a decision on 

- 

- 

the grant of a Community plant variety right and its termination by 
declaring it null and void or cancelling it; 
the approval of a variety denomination or the amendment of an approved 
variety denomination; 
any objection against an application for a Community plant variety 
right or against a proposal for a variety denomination; 
fees and/or costs due to be paid by parties to proceedings before the 
Office; 
the entry or deletion of information in Jthe Register  for Applications 
for Community Plant Variety Rights and the Register of Community Plant 
Variety Rights; 
the public inspection of documents and/or the growing of material of 
the varieties concerned; and 
the grant of a compulsory exploitation right or an exploitation right 
pursuant to Article 100(2) of the Regulation, including the amendment 
or cancellation of such rights. 

The decisions listed above are subject to appeal to the Board(s) of Appeal 
established within the Office. In addition, Community  judicial protection 
is provided for in respect of the decisions of the Boards of Appeal on any 
appeal against decisions of the Office  (Article 73 of the Regulation), or 
in the case of exploitation rights, in particular compulsory  exploitation 
rights  (Article 74 of the Regulation) directly in respect of decisions 
taken by the Office. 

This judicial protection is ensured by the Court of Justice of the European 
Communities and the Court of First Instance of the European Communities, 
respectively, which exercise the jurisdiction in the same manner as in 
other fields of new Community industrial property rights such as the 
Community Trade Mark. 

- 2 -

For that purpose, the Court of First Instance transmitted amendments to its 
Rules of Procedure of 2.5.1991  (JO No L 136 of 30.05.1991, p. 1 ), as last 
amended on 15 September 1994  (OJ No L 249 of 24.09.1994, p. 17) on 
22 September 1994 to the Council of the European Union for approval. These 
amendments provide for special provisions for proceedings relating to 
intellectual property rights. 

The attached Commission proposal for amending Council Regulation No 2100/94 
aims at clarifying the provisions relating to the proceedings which may be 
instituted before the Courts. Such clarification should be attained by 
aligning the relevant provisions with those already established in 
comparable fields, in particular by Article 63 of Council Regulation  (EC) 
No 40/94 on the Community Trade Mark  (OJ No L 11, 14.0-1.1994). Such 
alignment should be achieved prior to 27.04.1995, the date on which the new 
Community regime shall apply in full. 

Subsidiarity 
a)  What are -the objectives of the measure in relation to obligations with 

which the Community is charged? 

The measure pursues the same objective as the basic Regulation, i.e. to 
ensure compatibility with the requirements of the single market 
concept; the proposal does not affect the co-existence of national 
regimes with the Community system. 

b)  Does the measure arise from an area where there is exclusive Conmunity 

competence or where competence is shared with Member States? 

Exclusive Community competence in respect of the Community  systems of 
industrial property rights. 

c)  What foras of actions are at the disposal of the Community? 

Amendment to an already adopted regulation, exclusively. 

d)  Is uniform regulation necessary or would a directive imposing general 
objectives suffice, leaving execution to be carried out at Member 
State's level? 

Uniform regulation is necessary/. 

The proposal would have no impact on small or medium-sized enterprises and 
no financial implications for the budget for the European Union. 

Proposal for a Council Regulation  (EC) 
amending Council Regulation  (EC) 2100/94 on Community plant variety rights 

2> 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in 
particular Article 43 thereof, 

Having regard to the proposal from the Commission, 

Having regard to the Opinion of the European Parliament, 

Having regard to the opinion of the Economic and Social Committee, 

Whereas Council Regulation  (EC) 2100/94 of 27 July 19941 and any regulation 
amending this Regulation are directly concerned with the production and 
marketing of agricultural products and in particular material  for the 
propagation of plants of the varieties protected; whereas these measures 
contribute to technical progress to increase agricultural  productivity 
through the continued breeding of improved plant varieties; 

Whereas it is appropriate, considering the need to ensure coherence of the 
system of appeal procedures to the Community jurisdiction in the different 
fields of industrial and commercial property, to align the rules on actions 
which may be brought against decisions of the Community Plant Variety 
Office or its Boards of Appeal established by the aforementioned  Regulation 
with those provided  for in Council Regulation  (EC) No 40/94 of 
20 December  1993 on the Community Trade Mark2; 

OJ No L 227, 01.09.1994 
OJ No L 11, 14.01.1994 

V 

Whereas under Council Decision 88/591/ECSC, EEC, Euratom of 24 October  1988 
establishing a Court of First Instance of the European Communities3, as 
last amended by Decision 94/149/ECSC, EC of 7 March 19944, that Court shall 
exercise at the first instance the jurisdiction conferred on the Court of 
Justice by the Treaties establishing the Communities - with particular 
regard to appeals lodged under the fourth subparagraph of Article 173 of 
the EC Treaty - and by the acts adopted  in implementation thereof, save as 
otherwise provided in an act setting up a body governed by Community  law; 
whereas the jurisdiction which this Regulation confers on the Court of 
Justice to annul or to alter decisions of the Boards of Appeal and in 
specific cases decisions of the Office shall accordingly be exercised at 
the first instance by the Court mentioned above in accordance with the 
above Decision; 

HAS ADOPTED THIS REGULATION: 

Council Regulation  (EC) 2100/94 is hereby amended as follows: 
1.  Article 67(3) is hereby amended as follows: 

Article 1 

In the German version, the words "direkte Beschwerde" are replaced 
by the words "unmittelbare Klage", and the word  "eingelegt" is 
replaced by the word  "erhoben". 
In the English version, the words "direct appeal" are replaced by 
the words "direct action", and the word "lodged" is replaced by the 
word "brought". 

2.  Article 73 is replaced by the following: 

"Actions against decisions of the Board of Appeal 

1.  Actions may be brought before the Court of Justice against 

decisions of the Boards of Appeal  on  appeals« 

2.  The action may be brought on grounds of lack of competence, 

infringements of an essential procedural requirements, infringement 
of the Treaty, of this Regulation or of any rule of law relating to 
their application of misuse of power. 

OJ No L 319, 25.11.1988, p. 1 and corrigendum  in OJ No L 241, 
17.08.1989, p. 4 
OJ No L 66, 10.03.1994, p. 29 

^ 

3.  The Court of Justice has jurisdiction to annul or to alter the 

contested decision. 

4.  The action shall be open to any party to appeal proceedings which 

has been unsuccessful  in its submissions. 

5.  The action shall be brought before the Court of Justice within two 
months of the date of service of the decision of the Board of 
Appeal. 

6.  The Office shall be required to take the necessary measures to 

comply with the judgment of the Court of Justice." 

3.  Article 74 is hereby amended as follows: 

-  In the German version, the title is replaced by  "Unmittelbare 

Klage", and in paragraph  (1), the words "Beschwerde direkt" are 
replaced by the words "unmittelbare Klage" and the word  "eingelegt" 
is replaced by the word "erhoben". 

In the English version, the title is replaced by  "Direct action", 
and in paragraph  (1), the words "A direct appeal to the Court of 
Justice of the European Communities may lie from" are replaced by 
the words "A direct action may be brought before the Court of 
Justice against". 

This Regulation shall enter into force on 27 April 1995. 

Article 2 

This Regulation shall be binding in its entirety and directly applicable in 
all Member States. 

Done at Brussels, 

For the Council, 

ISSN 0254-1475 

COM(95) 144  final 

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