Commission Regulation (EC) No 1002/2005 of 30 June 2005 amending Regulation (EC) No 1239/95 as regards the grant of compulsory licences and the rules on public inspection and access to documents held by the Community Plant Variety Office
Date: 2005-06-30
Institutions: European Commission
Subjects: Community Plant Variety Office, European patent, access to EU information, patents licence, plant variety right

1.7.2005

EN

Official Journal of the European Union

L 170/7

COMMISSION REGULATION (EC) No 1002/2005

of 30 June 2005

amending Regulation (EC) No 1239/95 as regards the grant of compulsory licences and the rules on
public inspection and access to documents held by the Community Plant Variety Office

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

HAS ADOPTED THIS REGULATION:

Having regard to the Treaty
Community,

establishing the European

Article 1

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

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

1. Chapter IV of Title II is replaced by the following:

Whereas:

(1)

(2)

(3)

(4)

(5)

Article 29 of Regulation (EC) No 2100/94 has been
amended in order to include a reference to compulsory
licences provided for in Article 12 of Directive 98/44/EC
of the European Parliament and of the Council of 6 July
legal protection of biotechnological
1998 on the
inventions (2) and to replace the term ‘compulsory
exploitation right’ by ‘compulsory licence’.

the European
Regulation (EC) No 1049/2001 of
Parliament and of
the Council of 30 May 2001
regarding public access to European Parliament, Council
and Commission documents (3), which lays down the
general principles and limits governing the right of
access to documents provided for in Article 255 of the
Treaty, has been made applicable to documents held by
the Community Plant Variety Office by way of insertion
of a new Article 33a in Regulation (EC) No 2100/94.

It is therefore appropriate to amend Commission Regu-
lation (EC) No 1239/95 of 31 May 1995 establishing
implementing rules for the application of Council Regu-
lation (EC) No 2100/94 as regards proceedings before
the Community Plant Variety Office (4) accordingly.

The Administrative Council of
Variety office has been consulted.

the Community Plant

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

opinion

the

the

of

(1) OJ L 227, 1.9.1994, p. 1. Regulation as last amended by Regulation

(EC) No 873/2004 (OJ L 162, 30.4.2004, p. 38).

(2) OJ L 213, 30.7.1998, p. 13.
(3) OJ L 145, 31.5.2001, p. 43.
(4) OJ L 121, 1.6.1995, p. 37. Regulation as last amended by Regu-

lation (EC) No 2181/2002 (OJ L 331, 7.12.2002, p. 14).

‘CHAPTER IV

COMMUNITY LICENCES TO BE GRANTED BY THE OFFICE

Section 1

C o m p u l s o r y l i c e n c e s p u r s u a n t
t h e B a s i c R e g u l a t i o n
2 9 o f

t o A r t i c l e

Article 37

Applications for a compulsory licence

The application for a compulsory licence pursuant to
the basic Regulation shall

(2) and (5) of

1.
Article 29(1),
contain:

(a)

the designation of the applicant and the opposing holder
of the variety concerned as parties to proceedings;

(b) the variety denomination and the plant species of the

variety or varieties concerned;

(c) a proposal for the type of acts to be covered by the

compulsory licence;

(d) a statement setting out the public interest concerned,
and
including details of
facts,
arguments presented in support of the public interest
claimed;

items of

evidence

(e)

in the case of an application referred to in Article 29(2)
of the basic Regulation, a proposal for the category of
to which the compulsory licence shall be
persons
granted,
the specific
including, as the case may be,
requirements related to that category of persons.

(f) a proposal for an equitable remuneration and the basis

for calculating the remuneration.

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The application for a compulsory licence referred to in

2.
Article 29(5a) of the basic Regulation shall contain:

(g) a proposal for the territorial scope of the cross-licence,
which may not exceed the territorial scope of the patent
referred to in point (c).

(a)

the designation of the applicant holding a patent right
and the opposing holder of the variety concerned as
parties to proceedings;

(b) the variety denomination and the plant species of the

variety or varieties concerned;

(c) a certified copy of the patent certificate showing the
number and claims of the patent for a biotechnological
invention and the granting authority of the patent;

(d) a proposal for the type of acts to be covered by the

compulsory licence;

(e) a proposal for an equitable remuneration and the basis

for calculating the remuneration;

(f) a

statement

setting out why the biotechnological
technical progress of
compared with the
items of

invention constitutes significant
interest
considerable
protected variety,
including details of
evidence and arguments in support of the claim;

economic

facts,

4.
The application for a compulsory licence shall be
accompanied by documents evidencing that the applicant
has applied unsuccessfully to obtain a contractual
licence
from the holder of
the plant variety right. Should the
for a
Commission or a Member State be the applicant
compulsory licence pursuant to Article 29(2) of the basic
Regulation, the Office may waive this condition in the case
of force majeure.

A request for a contractual licence shall be considered

5.
unsuccessful within the meaning of paragraph 4 if:

(a)

the opposing holder has not given a final reply to the
person seeking such right within a reasonable period, or

(b) the opposing holder has refused to grant a contractual

licence to the person seeking it, or

(c)

the opposing holder has offered a licence to the person
seeking it, on obviously unreasonable fundamental terms
including those relating to the royalty to be paid, or on
terms which, seen as a whole, are obviously unrea-
sonable.

(g) a proposal for the territorial scope of the licence, which
the patent

may not exceed the territorial scope of
referred to in point (c).

Article 38

The application for a cross-licence referred to in Article

3.
29(5a) of the basic Regulation shall contain:

(a)

the designation of the applicant holding a patent right
and the opposing holder of the variety concerned as
parties to proceedings;

(b) the variety denomination and the plant species of the

variety or varieties concerned;

(c) a certified copy of the patent certificate showing the
number and claims of the patent for a biotechnological
invention and the granting authority of the patent;

(d) an official document showing that a compulsory licence
invention has been

for a patented biotechnological
granted to the holder of the plant variety right;

(e) a proposal for the type of acts to be covered by the

cross-licence;

(f) a proposal for an equitable remuneration and the basis

for calculating the remuneration;

Examination of the application for a compulsory licence

Oral proceedings and the taking of evidence shall

1.
principle be held together in one hearing.

in

Requests for

further hearings shall be inadmissible
for those requests based on circumstances which

2.
except
have undergone change during or after the hearing.

Before taking a decision, the Office shall

3.
invite the
parties concerned to come to an amicable settlement on a
contractual
licence. If appropriate, the Office shall make a
proposal for such an amicable settlement.

Article 39

Tenure of a Community plant variety right during the
proceedings

1.
If the commencement of an action in respect of a
claim referred to in Article 98(1) of the basic Regulation
the holder has been entered in the Register of
against
Community Plant Variety Rights, the Office may suspend
the proceedings on the grant of a compulsory licence. It
shall not resume them prior to the entry in the same
Register of the final
judgment upon, or any other termi-
nation of, such action.

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the new holder shall enter
thereto, upon request of

If a transfer of the Community plant variety right is
2.
the
binding on the Office,
proceedings
the
as party
applicant, if that applicant has unsuccessfully requested the
new holder to grant him a licence within two months of
receipt of communication from the Office that the name of
the new holder has been entered in the Register of
Community Plant Variety Rights. A request
from the
applicant shall be accompanied by sufficient documentary
the
evidence of his vain attempt and,
conduct of the new holder.

if appropriate, of

3.
In the case of an application referred to in Article
29(2) of the basic Regulation, the new holder shall enter
the proceedings as party thereto. Paragraph 1 of
this
Article shall not apply.

Article 40

Contents of the decision on the application

The written decision shall be signed by the President of the
Office. The decision shall contain:

(a) a statement that the decision is delivered by the Office;

(b) the date when the decision was taken;

contain a
involved.

statement

setting out

the public

interest

1. The following grounds may in particular constitute a

public interest:

(a)

the protection of life or health of humans, animals or
plants,

(b) the need to supply the market with material offering

specific features,

(c)

the need to maintain the incentive for continued
breeding of improved varieties.

2. The decision to grant a compulsory licence pursuant to
Article 29(5a) of the basic Regulation shall contain a
the reasons why the invention
statement setting out
constitutes significant technical progress of considerable
following grounds may in
economic
particular
invention
the
constitutes significant technical progress of considerable
economic interest compared with the protected plant
variety:

interest. The
constitute

reasons why

(c)

the names of the members of the committee having
taken part in the proceedings;

(a)

improvement of cultural techniques;

(d) the names of the parties to proceedings and of their

procedural representatives;

(e)

the reference to the opinion of
Council;

the Administrative

(f) a statement of the issues to be decided;

(g) a summary of the facts;

(h) the grounds on which the decision is based;

(i)

the order of the Office; if need be, the order shall include
the stipulated acts covered by the compulsory licence,
conditions pertaining thereto and the
the
category of persons,
including where appropriate the
specific requirements relating to that category.

specific

Article 41

Grant of a compulsory licence

The decision to grant a compulsory licence pursuant
Article 29(1),

to
the basic Regulation shall

(2) and (5) of

(b) improvement of the environment;

(c)

improvement of techniques to facilitate the use of
genetic biodiversity;

(d)

improvement of quality;

(e)

improvement of yield;

(f)

improvement of resistance;

(g)

improvement of adaptation to specific climatological
and/or environmental conditions.

3. The compulsory licence shall be non-exclusive.

4. The compulsory licence may not be transferred, otherwise
than together with that part of an enterprise which makes
use of the compulsory licence, or, in the circumstances
set out in Article 29(5) of the basic Regulation, together
with the assignment of the rights of an essentially derived
variety.

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Article 42

Conditions pertaining to the person to whom a
compulsory licence is granted

1. Without prejudice to the other conditions referred to
in Article 29(3) of the basic Regulation, the person to whom
the compulsory licence is granted shall have the appropriate
financial
the
compulsory licence.

capacity to make use of

and technical

2.
Compliance with the conditions pertaining to the
and laid down in the decision
compulsory
licence
'circumstance` under
considered a
thereupon shall be
Article 29(4) of the basic Regulation.

The Office shall provide that the person to whom a
3.
compulsory licence is granted may not bring a legal action
for infringement of a Community plant variety right unless
the holder has refused or neglected to do so within two
months after being so requested.

Article 43

Category of persons satisfying specific requirements
pursuant to Article 29(2) of the basic Regulation

1.
Any person intending to make use of a compulsory
licence who comes under the category of person satisfying
specific requirements referred to in Article 29(2) of the basic
Regulation shall declare his intention to the Office and to the
holder by registered letter with advice of delivery. The
declaration shall include:

(a)

the name and address of that person as laid down for
parties to proceedings pursuant to Article 2 of this Regu-
lation;

(b) a

statement
requirements;

on the

facts meeting

the

specific

a

to

person entered

Article 42(3) of

this Regulation shall apply mutatis
3.
mutandis
of
Community Plant Variety Rights pursuant to paragraph 2
of this Article. Any judgment, or other termination, of the
legal action in respect of the act of infringement shall apply
to the other persons entered or to be entered.

in the Register

The entry referred to in paragraph 2 may be deleted on
4.
the sole grounds that the specific requirements laid down in
the decision on the grant of a compulsory licence or the
financial and technical capacities established pursuant
to
paragraph 2 have undergone change more than one year
after the grant of the compulsory licence and within any
time-limit stipulated in that grant. The deletion of
the
entry shall be communicated to the person entered and
the holder.

Section 2

E x p l o i t a t i o n
1 0 0 ( 2 ) o f

r i g h t s

p u r s u a n t
t h e B a s i c R e g u l a t i o n

t o A r t i c l e

Article 44

Exploitation rights pursuant to Article 100(2) of the
basic Regulation

1.
A request for a contractual non-exclusive exploitation
right from a new holder, as referred to in Article 100(2) of
the basic Regulation, shall be made, in the case of the former
holder within two months, or in the case of a person having
enjoyed an exploitation right within four months, of receipt
of notification from the Office that the name of the new
holder has been entered in the Register of Community Plant
Variety Rights.

2.
An application for an exploitation right to be granted
pursuant to Article 100(2) of the basic Regulation shall be
accompanied by documents
supporting the unsuccessful
referred to in paragraph 1. The provisions of
request
(c) and (5), Article 38, Article 39(3),
Article 37(1)(a),
Article 40 except
(f), Article 41(3) and (4) and
letter
Article 42 of this Regulation shall apply mutatis mutandis.’;

(b),

(c) a statement setting out the acts to be effected; and

2. Article 82 is replaced by the following:

(d) an assurance that

that person has

the appropriate
financial resources as well as information about his
the compulsory
to make use of
technical capacity,
licence.

Upon request, the Office shall enter a person in the
2.
Register of Community Plant Variety Rights if such person
has fulfilled the conditions relating to the declaration referred
to in paragraph 1. Such person shall not be entitled to make
use of the compulsory licence prior to the entry. The entry
shall be communicated to that person and the holder.

‘Article 82

Public inspection of the Registers

The Registers shall be open for public inspection on

1.
the premises of the Office.

Access to the Registers and the documents held therein shall
be granted under the same terms and conditions as apply to
the access to documents held by the Office within the
meaning of in Article 84.

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On the spot inspection of the Registers shall be free of

2.
charge.

The production and delivery of extracts from the Registers in
any form that requires the processing or manipulating of
data other than the mere reproduction of a document or
parts thereof shall be subject to the payment of a fee.

The President of the Office may provide for public
the Registers on the premises of national
to Article
sub-offices designated, pursuant

3.
inspection of
agencies, or
30(4) of the basic Regulation.’;

‘Article 84

Access to documents held by the Office

1.
The Administrative Council shall adopt the practical
arrangements for access to the documents held by the
Office, including the Registers.

2.
The Administrative Council shall adopt the categories
of documents of the Office to be made directly accessible to
the public by way of publication, including publication by
electronic means.’

Article 2

3. Article 84 is replaced by the following:

This Regulation shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

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

Done at Brussels, 30 June 2005.

For the Commission

Markos KYPRIANOU
Member of the Commission