Commission Regulation (EC) No 2181/2002 of 6 December 2002 amending Regulation (EC) No 1239/95 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office
Date: 2002-12-06
Institutions: European Commission
Subjects: European organisation, administrative procedure, application of EU law, industrial property, patent law, plant propagation

L 331/14

EN

Official Journal of the European Communities

7.12.2002

COMMISSION REGULATION (EC) No 2181/2002

of 6 December 2002

amending Regulation (EC) No 1239/95 establishing implementing rules for the application of
Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety
Office

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 2100/94 of 27
July 1994 on Community plant variety rights (1), as last
amended by Regulation (EC) No 2506/95 (2), and in particular
Article 114 thereof,

Whereas:

(1)

(2)

(3)

(4)

(5)

The Community Plant Variety Office (the Office) estab-
lished by Regulation (EC) No 2100/94 implements and
applies the scheme for the protection of plant variety
rights.

The rules concerning the proceedings before the Office
are laid down in Commission Regulation (EC) No 1239/
95 (3), as amended by Regulation (EC) No 448/96 (4).
Article 27 of that Regulation provided that examination
reports made under the responsibility of authorities of a
Member State or a third country which is member of
the International Union on the Protection of New Vari-
eties of Plants (UPOV) could be considered a sufficient
basis for decision. Article 27 was however a temporary
provision which lapsed on 30 June 1998.

The intention of applying Article 27 of Regulation (EC)
No 1239/95 on a temporary basis was to build up an
independent Community system, with the Office arran-
ging for technical examination of the varieties submitted
with the application for plant variety protection. The
experience of the Office has however shown the need
to consider other examination reports as specified in
Article 27.

The majority of Community plant variety rights granted
after 30 June 1998 have been based on decisions consid-
ering technical examinations made under the responsi-
bility of authorities other than the Office, providing
grants in a very competitive market.

It is therefore necessary to regularise the practices of the
Office since 1 July 1998. At the same time, the possibi-
lity to apply Article 27 in the future should be kept
open. Regulation (EC) No 1239/95 should therefore be
amended with effect from 1 July 1998.

(6)

The Administrative Council of
Variety Office has been consulted.

the Community Plant

(1) OJ L 227, 1.9.1994, p. 1.
(2) OJ L 258, 28.10.1995, p. 3.
(3) OJ L 121, 1.6.1995, p. 37.
(4) OJ L 62, 13.3.1996, p. 3.

(7)

The measures provided for in this Regulation are in
accordance with the opinion of the Standing Committee
on Plant Variety Rights,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1239/95 is amended as follows:

1. Article 27 shall be replaced by the following:

‘Article 27

Other examination reports

1.
An examination report on the results of any technical
examination which has been carried out or is in the process
of being carried out for official purposes in a Member State
by one of the offices responsible for the species concerned
pursuant to Article 55(1) of the Basic Regulation may be
considered by the Office to constitute a sufficient basis for
decision, provided that:

— the material submitted for the technical examination has
in quantity and quality, with any standards
complied,
that may have been laid down pursuant to Article 55(4)
of the Basic Regulation,

— the technical examination has been carried out in a
manner consistent with the designations by the Admin-
istrative Council pursuant to Article 55(1) of the Basic
Regulation, and has been conducted in accordance with
the test guidelines issued, on general instructions given,
pursuant to Article 56(2) of that Regulation and Articles
22 and 23 of this Regulation,

— the Office has had the opportunity to monitor the
conduct of the technical examination concerned, and

— where the final report is not immediately available, the
interim reports on each growing period are submitted to
the Office prior to the examination report.

2. Where the Office does not consider the examination
report referred to in paragraph 1 to constitute a sufficient
basis for a decision,
it may follow the procedure under
Article 55 of the Regulation, after consultation of the appli-
cant and the Examination Office concerned.

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Official Journal of the European Communities

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The Office and each competent national plant variety
3.
office in a Member State shall give administrative assistance
to the other by making available, upon request, any exami-
nation reports on a variety, for the purpose of assessing
distinctiveness, uniformity and stability of that variety. A
specific amount shall be charged by the Office or the
competent national plant variety office for the submission
of such a report, such amount being agreed by the offices
concerned.

An examination report on the results of a technical
4.
examination which has been carried out or is in the process
of being carried out for official purposes in a third country
which is Member of the International Union for the Protec-
tion of New Varieties of Plants may be considered by the
Office to constitute a sufficient basis for decision, provided
the technical examination complies with the conditions laid
down in a written agreement between the Office and the
competent authority of such third country. Such conditions
shall at least include:
— those related to the material, as referred to in paragraph

— that the technical examination has been conducted in
accordance with the test guidelines issued, or general
instructions given, pursuant to Article 56(2) of the Basic
Regulation,

— that the Office has had the opportunity to assess the
suitability of facilities for carrying out a technical exami-
nation for the species concerned in that third country
and to monitor the conduct of the technical examination
concerned, and

— those related to the availability of reports, as laid down

in paragraph 1, fourth indent.’

2. In Article 95 the second paragraph is deleted.

Article 2

This Regulation shall enter into force on the day of its publica-
tion in the Official Journal of the European Communities.

1, first indent,

It shall apply from 1 July 1998.

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

Done at Brussels, 6 December 2002.

For the Commission

David BYRNE

Member of the Commission