Source: EURLEX
Language: en
Format: md

### **`COMMISSION OF THE EUROPEAN COMMUNITIES`**

```
                        C0M(90) 347 final

                        Brussels, 30 August 1990

                  Proposal for a

               COUNCIL REGULATION (EEC)

            on Community plant variety rights

              (presented by the Commission)

```

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                  - 2 
            EXPLANATORY MEMORANDUM

###### **`i. The subject`**

  The proposed Regulation is one of the measures contained in

  the Commission's White Paper of 1985 for completing the

  internal market in the field of agrioulture.

  Its subject is the establishment, at Community level, of a

  speoial form of industrial property rights for the development

  of new plant varieties. It shall ensure a proper reward to

  plant breeders for their respective achievements, and

  constitute an incentive for further developments. It is based

  on a system set up by UPOV (Union pour la Protection des

  Obtentions Végétales) and implemented at national level by the

  contracting parties thereto, including the majority of the

  Member States of the Community.

###### **`2. The objectives`**

  The proposed system is considered to be an important

  instrument to promote the continued breeding of Improved plant

  varieties, as an essential element of technical progress to

  increase agricultural productivity.

  It seeks

    to adapt the current situation determined by various

    national plant variety protection laws to the

    circumstances of the single market, and

    to strengthen, in the light of the development of new

    breeding methods such as biotechnology, the protection

    available to plant breeders.

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                  - 3 
  Under this system, breeders would be able to aoquire, upon a

  single application and through a single decision, direot and

  uniform protection throughout the Community for varieties of

  all botanical taxa and hybrids -of taxa.

###### **`3. The structure`**

  The proposed rules are subdivided in four main seotions:

    the section on substantive law (Artioles 5 - 28)

    the section on operational law (Articles 29 - 88)

    the section on impact on other laws (Articles 89 - 103)

    the section on financial and institutional aspeots

    (Articles 104 - 110).

###### **`4. The substantive law`**

  It lays down the conditions for the grant of Community plant

  variety rights (Article 5 - 12), in particular distinctness,

  uniformity, stability and novelty of the variety oonoerned and

  personal entitlement.

  It defines the uniform effects of the right granted (Artioles

  13 - 15) and confirms both the internationally reoognlzed

  principle of "breeders' exemption" for new varieties developed

  from protected varieties, and the accepted praotioe of

  "agricultural exemption" for farm-saved seed.

  It establishes rules on the use of variety denominations

  (Articles 16, 17) and fixes the period of protection and other

  criteria for termination (Articles 18 - 20).

  It determines the status of the right granted as an objeot of

  property of the holder (Articles 21 - 27) and provides for a

  system of compulsory licencing (Article 28).

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                  - 4 
###### **`5. The operational law`**

  The implementation of the Community plant variety rights

  system would be entrusted to a "Community Plant Variety

  Office".

  Its status, duties, structure and management are defined

  following examples in the field of other industrial property

  rights (Articles 29 - 37).

  An Administrative Council, consisting of representatives of

  Member States and the Commission, is proposed in order to

  advise the Office and to monitor its activities (Articles 38 
  43).

  Community judicial protection is ensured through "Boards of

  Appeal" and reference to the Court of Justice of the European

  Communities (Articles 44 - 47, 72).

  The proposal also provides for appropriate rules of procedure

    before the Office as such, in respect of applications

    (Articles 48 - 51), of the administrative and teohnioal

    examination thereof (Articles 52 - 59) and of its

    decisions (Articles 6 0 - 6 2 ) and follow-up-actions

    (Articles 63 - 65), and

    before the Boards of Appeal (Articles 6 6 - 7 1 ) .

  It finally refers to a number of generally accepted principles

  of legal proceedings (Articles 73 - 79).

  This section is completed by certain provisions relating to

  the fees to be charged by the Office (Articles 80 - 83), and

  also to a Register of Community Plant Variety Rights and other

  means of information (Articles 84 - 88).

6. Impact on other laws

  The system lays down certain provisions defining the

  relationship to national plant variety rights and - based on

  existing international commitments of Member States - to

  patents (Articles 89, 90).

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                  - 5 
  It identifies civil law claims derived from the proposed

  system, in particular in cases of infringements (Artioles 91 •

  96), and refers to the relevant international and national

  rules on jurisdiction and procedure in legal actions arising

  out of such claims (Articles 97 - 102). Some amendments to

  national penal laws are also necessary (Article 103).

7. Financial and institutional aspects

  The proposed budget system is inspired by earlier proposals.

  Mixed financing through fees and subsidies from the general

  budget of the Community is at first envisaged with the aim of

  moving later towards self-financing of the Office's variable

  costs (Articles 104 - 107).

  Finally, rules for the adoption of secondary Community

  provisions in accordance with established procedures are

  provided for (Articles 108 - 110).

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                      - 6 
                   Proposal for a

                COUNCIL REGULATION (EEC)

              on Community plant variety rights

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic 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 the continued breeding of Improved plant varieties is an essential

element of technical progress to increase agricultural productivity;

Whereas measures for promoting such breeding should be supported;

Whereas an important instrument for these purposes is the creation of a

Community plant variety right;

Whereas the system of Community plant variety rights must adapt the present

situation, under which only national plant variety rights are available, to

Community conditions and, in particular, ensure that plant breeders can

acquire, through a single decision, direct and uniform protection in the whole

of the Community;

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                      - 7 
Whereas the system must also have regard to developments In plant breeding

techniques including biotechnology; whereas in order to stimulate the breeding

and development of new varieties, there should be Improved protection compared

with the present situation for all plant breeders without, however,

unjustifiably Impairing access to protection generally or in the case of

certain breeding techniques;

Whereas varieties of all botanical taxa and hybrids of taxa should be

protectable;

Whereas protectable varieties must comply with internationally recognized

requirements, I.e. distinctness, homogeneity, stability and novelty, and also

be labelled with a prescribed variety denomination;

Whereas it is important to provide for a definition of a plant variety, in

order to ensure the proper functioning of the system; whereas the term

"variety" shall be considered to mean an entity as traditionally and commonly

understood by plant breeders, plant users and related institutions; whereas

consequently that entity must be broader than that which satisfies the

conditions governing the grant of Community plant variety rights in full,

without however equalling a botanical taxon, and it must meet all the

specifications set up in the relevant definition and does therefore in

particular not extend to single cells or parts thereof nor to cell-lines;

Whereas this definition is not intended to alter definitions which may have

been established in the field of other industrial property rights, especially

the patent field, nor to Interfere with or exclude from application laws

governing the protectabiIity of products, including plants and plant material,

or processes under such other industrial property rights;

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                     - 8 
Whereas It Is however highly desirable to have a common definition In both

fields; whereas therefore appropriate efforts at international level should be

supported to reach such a common definition;

Whereas for the grant of Community plant variety rights an assessment of

Important characteristics relating to the variety Is necessary; whereas,

however, these characteristics need not necessarily relate to their economic

importance;

Whereas the system must also clarify to whom the right to Community plant

variety protection pertains; whereas in some cases It would be to several

persons In common, not just to one; whereas the formal entitlement to make

applications must be regulated;

Whereas, since the effect of a Community plant variety right should be uniform

throughout the Community, commercial transactions subject to the holder's

agreement must be precisely delimited; whereas the scope of protection should

be extended, compared with most national systems, to certain material of the

variety to take account of trade via countries outside the Community without

protection; whereas, however, the Introduction of the principle of exhaustion

of rights must ensure that the protection is not excessive;

Whereas In order to stimulate plant breeding, the system basically confirms the

internationally accepted rule of free access to protected varieties for the

development therefrom, and exploitation, of new varieties;

Whereas in certain cases, particularly if the new variety, although distinct,

Is, from a commercial point of view, an Imitation of the source variety, a

certain form of dependency should be created;

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                     - 9 
Whereas, the exercise of Community plant variety rights must be subjected to

restrictions laid down In provisions adopted In the public interest; whereas,

these Include assuring agricultural production;

Whereas the Commission must ensure that the conditions therefor are laid down

at Community level either by Community law or possibly through binding

agreements or otherwise; whereas compulsory licensing should also be provided

for under certain circumstances;

Whereas the use of prescribed variety denominations should be made obligatory;

Whereas the Community plant variety right should In principle have a life of 30

years and In the case of certain woody genera with longer development times, 50

years; whereas other grounds for termination must be worked out;

Whereas a Community plant variety right is an object of the holder's property

and its rôle In relation to the non-harmonised legal provisions of Member

States, particularly of civil law, must therefore be clarified; whereas this

applies also to the settlement of infringements and the enforcement of

entitlement to Community plant variety rights;

Whereas, it is necessary to ensure that the full application of the principles

of the Community plant variety rights system is not Impaired by the effects of

other systems; whereas for this purpose certain rules, in conformity with

Member States' existing international commitments, are required concerning the

relationship to other industrial property rights;

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                - so 
Whereas it Is Indispensable to examine whether and to what extent the

conditions for the protection accorded In other Industrial property systems,

such as patents, should be adapted or otherwise modified for consistency with

the Community plant variety rights system-, whereas this, where necessary,

should be laid down In balanced rules by additional Community law;

Whereas the Implementation of the Community plant variety rights system should

be entrusted, following the example of concepts established In other Industrial

property rights, to a central office, the "Community Plant Variety Office";

Whereas the duties and powers of the Office, including its Boards of Appeal,

relating to the grant, termination or verification of Community plant variety

rights and publications are as far as possible to be modelled on rules

developed for similar systems, as are also the Office's structure and rules of

procedure, the collaboration with the Commission and Member States particularly

through an Administrative Council, the Involvement of Examination Offices in

technical examination and moreover the necessary budgetary measures; whereas

there should be mixed financing with the aim later of self-financing of at

least the Office's total variable costs, but not necessarily its fixed costs

such as staffing and accommodation*, whereas Community jurisdiction should be

ensured ;

Whereas the Office should be advised and supervised by the aforementioned

Administrative Council, composed of representatives of Member States and the

Commission;

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                     - 14 
Whereas this Regulation takes Into acount existing International systems as

established by the International Convention for the Protection of New Varieties

of Plants (UPOV-Convent Ion) or the Convention on the Grant of European Patents

(European Patent Convention);

Whereas this Regulation should be amended as necessary in the light of future

developments in the aforementioned systems, or of the negotiations In the GATT

on trade-related intellectual property rights,

HAS ADOPTED THIS REGULATION:

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   - 12 
   PART ONE

General provisions

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                      - 13 
                     Article 1

               Community plant variety rights

For plant varieties as a result of breeding or discovery, a system of Community

plant variety rights Is hereby established as the sole and exclusive form of

Community industrial property rights.

                     Article 2

         Uniform effect of Community plant variety rights

Community plant variety rights shall have uniform effect in the territory of

the Community and may not be granted, transferred or terminated in respect of

the abovementloned territory otherwise than on a uniform basis.

                     Article 3

           National property rights for plant varieties

This Regulation shall be without prejudice to the right of the Member States to

grant national property rights for plant varieties, provided that this is not

excluded by Article 89(1).

                     Article 4

                   Community Office

For the purpose of the implementation of this Regulation a Community Plant

Variety Office, hereinafter referred to as "the Office", Is hereby established.

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**- 14 -**

**PART** **TWO**

**Substantive** **law**

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                  - 15 
                CHAPTER I

Conditions governing the grant of Community plant variety rights

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                     - 16 
                     Article 5

           Object of Community plant variety rights

1. Varieties of all botanical taxa and hybrids of taxa may form the object of

   Community plant variety rights.

2. For the purpose of this Regulation, "variety" shall be taken to mean any

   group of plants as well as parts of those plants as far as they comprise

   more than a cell or cell line and are usable for the production of plants,

   both referred to hereinafter as "Individuals", provided that:

   (a) it may be defined as an entity on the basis of the expression of the

      characteristics of Its individuals or of a particular distribution

      of such expressions in its individuals,

   (b) the expressions of the characteristics of its Individuals are

       hereditary, or reproduceable In using repeatedly individuals of its

       components, and

   (c) the combination of expressions of the characteristics of Its

       Individuals is not distinctive for all individuals of a botanical

       taxon.

   In cases where the commercial use of a variety does not imply the

   production of entire plants, "plants" within the meaning of the above

   definition shall be taken to mean those parts of plants which have to be

   produced for the purpose of using the variety.

                     Article 6

                 Protectable varieties

Community plant variety rights shall be granted in respect of varieties that

are:

(a) distinct,
(b) homogeneous,
(c) stable and
(d) new, and
(e) for which a variety denomination exists which is suitable pursuant

   to Article 62.

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                      - 17 
                     Article 7

                    Distinctness

1. A variety shall be deemed to be distinct If its individuals either in the

   aggregate or on the basis of a particular distribution are clearly

   distinguishable by the expression of at least one important characteristic

   from the Individuals of any other variety whose existence Is a matter of

   common knowledge on the date of application determined pursuant to

   Article 50.

2. The existence of another variety shall be deemed to be a matter of common

   knowledge, In particular, if on the date of application determined

   pursuant to Article 50:

   (a) it was entered In an official register of plant varieties;

   (b) an application for Its Inclusion In an official register of plant

       varieties was filed, provided the application has been granted in

       the meantime, or

   (c) one or more of the acts set out In Article 13(2) were notoriously

       effected for commercial purposes with Individuals thereof.

                     Article 8

                    Homogeneity

A variety shall be deemed to be homogeneous if Its Individuals, either in the

aggregate or on the basis of a particular distribution, are sufficiently

uniform in the expression of each important characteristic, apart from a small

number of deviations, having regard to the particular features of reproduction

or propagation.

                     Article 9

                     Stab Ility

1. A variety shall be deemed to be stable If Its individuals, either in the

   aggregate or on the basis of a particular distribution, correspond in each

   important characteristic after each propagation or each cycle of

   propagation to the expression that is distinctive of the variety In

   question.

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                      - 18 
2. For the purposes of granting Community plant variety rights, It shall be

   assumed that the requirements of paragraph 1 are satisfied where It

   emerges from the technical examination pursuant to Articles 54 and 55 that

   there Is no Indication that the variety will not be stable.

                    Article 10

                     Novelty

1. A variety shall be deemed to be new if, at the date of application

   determined pursuant to Article 50, Individuals thereof have not been

   disposed of to others for commercial purposes or have been disposed of to

   others for commercial purposes only within the following periods of time:

   (a) one year, within the territory of the Community;

   (b) four years or, In the case of vine and tree species, six years,

       outside the territory of the Community.

2. The disposal of individuals by the applicant or his predecessor in title

   on the basis of a contractual or other legal relationship in which the

   applicant or his predecessor in title preserve the exclusive right of

   disposal of these and other individuals of the variety, in particular for

   purposes solely of reproduction or propagation of this variety,

   preparation or storage shall not be deemed to constitute disposal to

   others within the meaning of paragraph 1, provided no further disposal is

   made.

   Likewise, the disposal of individuals by one legal person to another legal

   person shall not be deemed to constitute disposal to others where one of

   them is part of the other or where both are part of the same third legal

   person, and provided no further disposal is made by the recipient.

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                  - 19 
3. For the purposes of paragraph 1, no account shall be taken of any disposal

   to others that occurred within one year before the beginning of the period

   laid down In paragraph 1, and If It was due to, or in consequence of:

   (a) an evident abuse to the prejudice of the applicant or his

      predecessor In title, or

   (b) the fact that the applicant or his predecessor in title had

      displayed the variety at an official or officially recognized

      exhibition within the meaning of the Convention on International

      Exhibitions.

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   - 20 
  CHAPTER I I

Persons entitled

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                      - 21 
                    Article 11

          Entitlement to Community plant variety rights

1. The original breeder or discoverer of the variety or his successor in

   title shall be entitled to the Community plant variety right.

2. If two or more persons have bred or discovered the variety Jointly,

   entitlement shall be vested jointly in them or their respective successors

   in title.

3. Where a variety is derived essentially from individuals of only one other

   variety (source variety) for which a Community plant variety right has

   been granted under this Regulation, entitlement to the right referred to

   in paragraph 1 shall likewise be vested jointly in the holder of the plant

   variety right in respect of the source variety and the original breeder or

   discoverer of the derived variety, or his successor, if:

   (a) the derived variety is the result of a mutation, or

   (b) the derived variety exhibits predominantly the same expressions of

       most of the important characteristics as the source variety, and no

       evidence is available of an impact on economically relevant

       characteristics as compared to the source variety.

4. Where not a Community plant variety right but a national industrial

   property right has been granted In one of the States referred to in

   Article 12(1) to another party for the source variety, the provisions of

   paragraph 3 shall apply mutatis mutandis, providing the law of the State

   concerned contains a provision comparable to paragraph 3.

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                      - 22 
5. If the breeder or discoverer is an employee, the entitlement to the

   Community plant variety right shall be determined In accordance with the

   national law applicable to the employment relationship in the context of

   which the variety was bred or discovered.

6. Where entitlement to a Community plant variety right is vested Jointly In

   two or more persons pursuant to paragraphs 2 to 5, one or more of them may

   empower the others by written declaration to such effect to claim

   entitlement thereto.

7. For the purposes of proceedings before the Office, the first applicant

   shall be deemed to be entitled to claim the entitlement to the Community

   plant variety right. This shall not apply if the Office is aware, by the

   time the decision on the application for grant of the Community plant

   variety right Is taken, or it Is shown by a final judgment delivered with

   regard to a claim for entitlement pursuant to Article 95(4), that

   entitlement Is not or is not solely vested in the first applicant. Where,

   in the event referred to in the second sentence, the identity of the sole

   or other person entitled has been determined, the latter may enter the

   proceedings as applicant.

                     Article 12

           Entitlement to file an application for grant

              of a Community plant variety right

1. An application for grant of a Community plant variety right may be filed

   by any natural or legal person, or any body ranking as a legal person

   under the law applicable to that body, provided they are:

   (a) nationals of one of the Member States or nationals of another State

       party to the UPOV Convention or are domiciled or have their seat or

       an establishment in such a State;

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                     - 23 
   (b) nationals of any other State or are domiciled or have their seat in

      such a State, In so far as the Commission, after obtaining the

      opinion of the Administrative Council, has so decided; such a

      decision may be made dependent on the other State affording

      protection for varieties of the same botanical taxon to nationals of

      all the Member States which corresponds to the protection afforded

      pursuant to this Regulation; the Commission shall establish whether

      this condition is met.

2. An application may also be filed Jointly by two or more applicants.

3. Persons who are not domiciled or do not have a seat or an establishment

   within the territory of the Community may participate in proceedings

   before the Office only If they have designated a procedural representative

   who is domiciled or has his seat or an establishment within the territory

   of the Community.

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           - 24 
         CHAPTER III

Effects of Community plant variety rights

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                      - 25 
                     Article 13

       Rights of the holder of a Community plant variety right

                  and prohibited acts

1. A Community plant variety right shall have the effect that the holder or

   holders of the Community plant variety right, hereinafter referred to as

   "the holder", shall be entitled to effect the acts set out in paragraph 2

   In respect of the variety.

2. All other persons shall be prohibited, without prejudice to the provisions

   of Articles 14 and 15, save with the consent of the holder, from

   reproducing or propagating the variety or from offering, disposing of to

   others, using or Importing into the Community, exporting from the

   Community or possessing for any of the abovementloned purposes Individuals

   or other parts of plants or harvested material of the variety or products

   obtained directly therefrom, all, i.e. Individuals, other parts of plants

   or harvested material and products directly obtained, referred to

   hereinafter as "material".

3. If in the case of Article 11(3) no Community plant variety right has been

   granted for the derived variety, all other persons shall be prohibited,

   save with the consent of the holder of the source variety, from effecting

   acts of the type set out in paragraph 2 in respect of the derived variety.

4. The exercise of the rights conferred by Community plant variety rights may

   not violate any provisions adopted on the grounds of public morality,

   public policy or public security-, the protection of health and life of

   humans, animals or plants; the protection of the environment; or the

   safeguarding of competition, trade and agricultural production.

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                    - 26 
   For the purpose of safeguarding agricultural production In the case of

   plant species governed by Community rules on the marketing of seeds or

   other propagating material, authorization may be given at Community level

   and In accordance with the procedure laid down in the Implementing rules

   pursuant to Article 109, to permit growers of propagating material of a

   variety for which a Community plant variety right has been granted to

   plant on their own holding harvested material obtained therefrom. Such

   authorization may be given only under conditions which shall be set up In

   an appropriate manner at Community level, upon initiative of the

   Comm i ss i on.

                   Article 14

      Limitation of the effects of Community plant variety rights

The rights conferred by a Community plant variety right shall not extend to:

   (a) acts relating to products that do not constitute material;

   (b) acts effected privately and for non-commercial purposes;

   (c) acts effected for experimental purposes;

   (d) acts effected for the purpose of discovering or creating new

      varieties;

   (e) without prejudice to the provisions of Article 13 paragraph 3, acts

      effected for the purpose of using the new varieties discovered or

      created pursuant to subparagraph (d), unless

        individuals of the protected variety have to be used repeatedly

        for the production of the new variety for commercial purposes, or

      - he new variety or the material of this variety comes under the

        protection of a property right which does not contain a

        comparable provision;

   f) acts whose prohibition would violate the provisions laid down in

      Article 13(4).

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                      - 27 
                     Article 15

          Exhaustion of Community plant variety rights

1. The rights conferred by a Community plant variety right shall not extend

   to acts Involving individuals of the variety that were disposed of to

   others In any part of the Community by the holder or with his consent.

   This shall also be applicable In respect of other material that was

   disposed of to others pursuant to the first sentence or that was obtained

   from Individuals as referred to In the first sentence.

2. Paragraph 1 shall not apply where the individuals have been or are being

   used as propagating material for the production of further individuals

   without having been intended for that purpose when they were disposed of.

                     Article 16

               Use of variety denominations

1. Anyone who offers or disposes of to others for commercial purposes within

   the territory of the Community propagating material of a variety in

   respect of which a Community plant variety right has been granted must

   state the variety denomination designated for the variety; where it Is

   stated in writing, the variety denomination shall be readily

   distinguishable and clearly legible. The first sentence shall also apply

   In respect of other material of the variety, If this Is required either

   pursuant to other provisions in law or if a request is made by an

   authority, by the purchaser or by any other person having a legitimate

   Interest.

2. Paragraph 1 shall apply even after the termination of the Community plant

   variety right.

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                     - 28 
                    Article 17

         Limitation of the use of variety denominations

1. The holder may not use any right granted in respect of a designation that

   is identical with the variety denomination to prohibit the use of that

   variety denomination.

2. A third party may use a right granted In respect of a designation that Is

   identical with the variety denomination to prohibit the use of that

   variety denomination only If that right was granted to him before the

   variety denomination was designated.

3. Where a variety has been granted a Community plant variety right or, in a

   Member State or another State party to the UPOV Convention, a national

   property right, neither Its denomination nor any designation which might

   be confused with it can be used for another variety of the same botanical

   species or a species regarded as related pursuant to the publication made

   in accordance with Article 62(6) or for material of such variety.

```

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               - 28 
              CHAPTER IV

Duration and termination of Community plant variety rights

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                    - 30 
                     Article 18

           Duration of Community plant variety rights

1. The term of the Community plant variety right shall run until the end of

   the thirtieth calendar year, or, in the case of varieties of vine and tree

   species, until the end of the fiftieth calendar year, following the year

   of grant.

2. A Community plant variety right shall lapse before the expiry of the terms

   laid down In paragraph 1 if the holder surrenders it by sending a written

   declaration to such effect to the Office, and with effect from the day

   following the day on which the declaration is received by the Office.

                     Article 19

           Revocation of Community plant variety rights

The Office shall revoke a Community plant variety right with effect ab initio

if it is ascertained that the conditions laid down In Article 7 or 10 were not

complied with when the right was granted.

                     Article 20

          Cancellation of Community plant variety rights

1. The Office shall cancel the Community plant variety right with effect In

   futurum if it is ascertained that the conditions laid down in

   Article 8 or 9(1) are no longer complied with. If it is discovered that

   these conditions were already no longer complied with from a point in time

   prior to cancellation, cancellation may be made effective as from that

   juncture.

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                     - 31 
2. The Office may cancel a Community plant variety right with effect

   In futurum If the holder:

   (a) has not fulfilled an obligation under Article 63(3),

   (b) In the case referred to in Article 65, neither proposes another

      variety denomination nor consents to a variety denomination

      designated by the Office of its own motion,

   (c) falls to pay within a period of grace such overdue fees as may be

      payable to maintain the Community plant variety right, or

   (d) either as the initial holder or as a successor in title as a result

      of a transfer pursuant to Article 22 other than mortis causa, no

      longer satisfies the conditions laid down In Article 12.

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             - 32 
            CHAPTER V

Community plant variety rights as objects of property

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                      - 33 
                    Article 21

              Assimilation with national laws

1. Save where otherwise provided in Articles 22 to 28, a Community plant

   variety right as an object of property shall be regarded in all respects,

   and for the entire territory of the Community, as a corresponding

   industrial property right in the Member State In which,

   (a) according to the entry in the Register of Community Plant Variety

       Rights, the holder was domiciled or had his seat or an establishment

       on the relevant date, or,

   (b) if the conditions laid down In subparagraph (a) are not fulfilled,

       the Member State In which the first-mentioned procedural

       representative of the holder, as indicated in the said Register was

       domiciled or had his seat or an establishment on the date of

       registration.

2. Where the conditions laid down in paragraph 1 are not fulfilled, the State

   referred to in paragraph 1 shall be the Member State in which the seat of

   the Office is located.

3. Where domiciles, seats or establishments in two or more Member States are

   entered In respect of the holder or the procedural representatives in the

   Register referred to in paragraph 1, the first-mentioned domicile or seat

   shall apply for the purposes of paragraph 1.

4. Where two or more persons are entered in the Register referred to in

   paragraph 1 as Joint holders, the relevant holder for the purposes of

   applying paragraph 1(a) shall be the first joint holder taken in order of

   entry in the Register who fulfils the conditions. Where none of the joint

   holders fulfils the conditions laid down in paragraph 1(a), paragraph 2

   shalI be applicab le.

```

```
                     - 34 
                    Article 22

                     Transfer

1. A Community plant variety right may be the object of a transfer to one or

   more successors In title.

2. Transfer of a Community plant variety right by assignment can be made only

   to successors who comply with the conditions laid down in Article 12. It

   shall be made in writing and shall require the signature of the parties to

   the contract, except when it is a result of a Judgement. Otherwise It

   shaII be voId.

3. Save as otherwise provided In Article 96, a transfer shall have no bearing

   on the rights acquired by third parties before the date of transfer.

4. A transfer shall not take effect for the Office and may not be cited vis
   à-vis third parties unless documentary evidence thereof as provided for in

   the Implementing rules is provided and until it has been entered In the

   Register of Community Plant Variety Rights. A transfer that has not yet

   been entered In the Register may, however, be cited vis-à-vis third

   parties who have acquired rights after the date of transfer but who knew

   of the transfer at the date on which they acquired those rights.

                     Article 23

                  Levy of execution

A Community plant variety right may be levied In execution.

```

```
                      - 35 
                     Article 24

               Bankruptcy or like proceedings

Until such time as common rules for the Member States in this field enter into

force, the only Member State in which a Community plant variety right may be

involved In bankruptcy or like proceedings shall be that in which such

proceedings are first brought within the meaning of national law or of

conventions applicable in this field.

                     Article 25

      The application for grant of a Community plant variety right

                 as an object of property

Articles 21 to 24 shall apply to applications for grant of Community plant

variety rights.

                     Article 26

               Contractual exploitation rights

1. Community plant variety rights may form In full or In part the subject of

   contractually granted exploitation rights. Exploitation rights may be

   exclusive or non-exclusive.

2. The holder may invoke the rights conferred by the Community plant variety

   right against a person enjoying the right of exploitation who contravenes

   any of the limitations attached to his exploitation right pursuant to

   paragraph 1.

                     Article 27

                   Joint holdership

Articles 21 to 26 shall apply mutatis mutandis in the event of Joint holdership

of a Community plant variety right in proportion to the respective share held,

where such shares have been determined.

```

```
                      - 36 
                    Article 28

              Compulsory exploitation rights

1. Where the holder refuses to allow another party to effect acts of the kind

   referred to in Article 13(2) subject to reasonable conditions, the Office

   shall grant entitlement (compulsory exploitation right) to the other party

   upon application to effect such acts, provided it considers, after

   consulting the Administrative Council, this to be:

   (a) economically acceptable to the holder and

   (b) required in the public interest, in particular to supply the market

      with material offering specified features.

2. On application by one or more Member States, by the Commission or by an

   organization set up at Community level and approved by the Commission for

   that purpose, a compulsory exploitation right may be granted, in

   accordance with the requirements set out In paragraph 1(a) and (b) and

   with the consent of the Administrative Council, to persons satisfying

   certain requirements or to anyone in one or more Member States or

   throughout the Community.

3. The Office shall, when granting the compulsory exploitation right,

   stipulate the type of acts covered and the conditions pertaining thereto,

   In particular the level of the payment to be made to the holder. On the

   expiry of each one year period after the grant of the compulsory

   exploitation right, any of the parties may request that the decision on

   the grant of the compulsory exploitation right be cancelled or amended.

   The sole grounds for such a request shall be that the circumstances

   determining the decision taken have in the meantime undergone considerable

   change.

4. National compulsory exploitation rights may not be granted In respect of a

   Community plant variety right.

```

```
        - 37 
       PART THREE

The Community Plant Variety Office

```

```
   - 38 
  CHAPTER I

General provisions

```

**-** **3?** **-**

```
                     Article 29

                Legal status, sub-offices

1. The Office shall be a Community agency and shall have legal personality.

2. The seat of the Office shall be located at •••.

3. In each of the Member States, the Office shall enjoy the most extensive

   legal capacity accorded to legal persons under their laws. It may, in

   particular, acquire or dispose of movable and immovable property and may

   be a party to legal proceedings. For these purposes, the Office shall be

   represented by its President.

4. With the consent of the Administrative Council, the Office may entrust

   national agencies with the exercise of specific administrative functions

   of the Office or establish its own sub-offices for that purpose in the

   Member States, subject to their consent.

                     Article 30

                      Staff

1. The Staff Regulations of officials of the European Communities, the

   Conditions of Employment of Other Servants of the European Communities,

   and the rules adopted jointly by the institutions of the European

   Communities for purposes of the application of those Staff Regulations and

   Conditions of Employment shall apply to the staff of the Office, but

   without prejudice to the application of Article 46 to the members of the

   Board of Appeal.

2. Without prejudice to Article 36, the powers conferred on the appointing

   authority by the Staff Regulations, and by the Conditions of Employment of

   Other Servants, shall be exercised by the Office in relation to its own

   staff.

```

```
                      - 40 
                     Article 31

                Privileges and Immunities

The Protocol on the Privileges and Immunities of the European Communities shall

apply to the Office.

                     Article 32

                     LlabiIity

1. The contractual liability of the Office shall be governed by the law

   applicable to the relevant contract.

2. As regards non-contractual liability the Office shall, in accordance with

   the general principles common to the laws of the Member States, make good

   any damage caused by its departments or employees in the performance of

   their duties.

3. The Court of Justice of the European Communities shall have Jurisdiction

   to give judgment pursuant to any arbitration clause contained in a

   contract concluded by the Office and in disputes relating to compensation

   for any such damage as is referred to in paragraph 2.

4. The personal liability of employees towards the Office shall be governed

   by the provisions laid down In the Staff Regulations or in the Conditions

   of Employment of other Servants.

                     Article 33

                     Languages

1. Applications to the Office, the documents required to process such

   applications and all other papers submitted shall be filed in one of the

   official languages of the European Communities.

```

```
                     - 41 
2. The persons participating In the procedure of the Office shall be entitled

   to conduct written and oral proceedings in any official language of the

   Community with translation and, In the case of hearings, simultaneous

   interpretation Into the working languages of the Office and those of the

   persons participating in the procedure In accordance with the Implementing

   rules pursuant to Article 109.

```

```
                    - 42 
                   Article 34

                Decisions of the Office

1. Decisions of the Office pursuant to Articles 19, 20, 60, 61 and 62 and

   decisions on objections lodged pursuant to Article 58, shall, provided

   they do not have to be made by the Board of Appeal, be taken by a

   committee of three employees, two of whom must have prior technical

   training and one of whom must be a qualified lawyer. However, until the

   decision Is taken, one member of the committee shall normally be charged

   with handling the case. The hearing shall be held before the committee

   Itself.

2. The committees may consult experts who are Independent of the parties

   concerned, Including those who were responsible for examining the variety.

   The Administrative Council may determine under what circumstances such

   experts should be heard at the request of a party concerned.

3. The President shall determine how many committees pursuant to paragraph 1

   should be formed using the employees available to the Office, and shall

   decide on the work allocation.

4. Other decisions of the Office shall be taken by the President or by a

   member of the Office's staff designated by him.

```

```
       - 43 
     CHAPTER

Administration of the Office

```

```
                     - 44 
                    Article 35

                    The President

1. The Office shall be managed by the President.

2. The President shall have, in particular, the following functions and

   powers:

   (a) he shall be responsible for carrying out the decisions of the

      Administrative Council;

   (b) he shall take all appropriate action, including the adoption of

       Internal administrative Instructions and the publication of

       communications, to ensure the proper operation of the Office-,

   (c) he may place before the Administrative Council draft amendments to

       this Regulation, to the provisions referred to in Articles 108 and

       109 or to any other rules relating to Community plant variety

       rights;

   (d) he shall draw up the estimates of revenue and expenditure of the

      Office pursuant to Article 105(1) and shall execute the Office

      budget ;

   (e) he shall submit a management report to the Administrative Council

       each year-,

   (f) he shall exercise the powers conferred by Article 30(2);

   (g) he may delegate his functions and powers.

3. One or more Vice-Presidents may be appointed to assist the President. If

   the President is unable to act, the Vice-President or Vice-Presidents will

   act in his place underbill** to be determined by the Administrative Council.

```

_**f~F~-'**_ _**~Â-**_ _**f •**_ **`"~* """•••`**

```
                    - 45 
                    Article 36

              Appointment of senior officials

1. The President of the Office shall be appointed by the Commission from a

   list of at most three candidates which shall be prepared by the
```

_**•t**_
**`Administrative`** **`Council.`** **`Power`** _**pto**_ **`dismiss the President`** **`shall I`** **`le with the`**

```
   Commission, acting on a proposât from the Administrative Council.

2. The President shall be appointed for a term of office of at most 5 years.

   This term of office shall be renewable.

3. Vice-Presidents of the Office shall be appointed or dismissed as In

   paragraphs 1 and 2, after consultation of the President.

4. The Commission shall exercise disciplinary authority over the President

   and Vice-presidents.

                    Article 37

                  Control of legality

1. The Commission shall be responsible for legal supervision of those acts of

   the President that are not subject to legal control by another body under

   Community law.

2. The Commission shall require the alteration or cancellation of acts by the

   President that violate the law.

3. Any Member State, any member of the Administrative Council or any third

   party who Is directly and personally concerned, may refer to the

   Commission any act of the President pursuant to paragraph 1, whether

   express or implied, for the legality of that act to be examined. The

   matter must be brought before the Commission within fifteen days of the

   date on which the party concerned came to know of the contested act. The

   Commission sha11 take a decision within a period of one month. Where no

   decision Is taken within this time-limit, this shall be deemed to

   constitute rejection.

```

```
     - 46 
    CHAPTER 11 I

The Administrative Council

```

```
                    - 47 
                   Article 38

                 Creation and powers

1. An Administrative Council to the Office is hereby established. In

   addition to the powers assigned to the Administrative Council under this

   Regulation and under the provisions referred to in Articles 108 and 109,

   it shall exercise the powers set out in paragraphs 2 to 6.

2. The Administrative Council shall advise the President on matters within

   the competence of the Office and shall monitor its activities.

3. The Administrative Council may forward to the Commission with or without

   amendments the drafts submitted to it pursuant to Article 35(2)(c), or Its

   own draft amendments to this Regulation, to the provisions referred to in

   Articles 108 and 109 or to any other rules relating to Community plant

   variety rights.

4. Where it considers it to be necessary, the Administrative Council may

   deliver opinions and seek information.

5. The Administrative Council may establish rules on the working methods of

   the Office.

6. The Administrative Council shall adopt its own rules of procedure.

                   Article 39

           Composition of the Administrative Council

1. The Administrative Council shall be composed of one representative of each

   Member State and one representative of the Commission. An alternate shall

   be appointed for each representative.

2. The members of the Administrative Council may, subject to the provisions

   of Its rules of procedure, be assisted by advisers or experts.

```

```
                    - 48 
                   Article 40

                   Chairmanship

1. The Administrative Council shall elect a Chairman and a Deputy Chairman

   from among its members. The Deputy Chairman shall ex officio replace the

   Chairman In the event of him being prevented from attending to his duties.

2. The duration of the terms of office of the Chairman and the

   Deputy Chairman shall be three years. The terms of office shall be

   renewable .

                   Article 41

                    MeetIngs

1. Meetings of the Administrative Council shall be convened by Its Chairman.

2. The President of the Office shall take part in the deliberations, unless

   the Administrative Council decides otherwise. He shall not be entitled to

   vote.

3. The Administrative Council shall hold an ordinary meeting once each year.

   In addition, it shall meet on the Initiative of its Chairman or at the

   request of the Commission or of one-third of the Member States.

4. The Administrative Council may Invite observers to attend its meetings.

5. The secretariat for the Administrative Council shall be provided by the

   Office.

                   Article 42

                 Place of meetings

The Administrative Council shall meet at the seat of the Commission, or at the

location of the Office or of an Examination Office. The details shall be

determined in the rules of procedure.

```

```
                    - 49 
                   Article 43

                    Voting

1. The Administrative Council shall take Its decisions, other than those

   referred to In paragraph 2, by a simple majority of the votes cast.

2. The majority of three-quarters of the votes cast shall be required for the

   decisions which the Administrative Council is empowered to take under

   Articles 12(1)(b), 36(1) and (3), 38(5), 46(1) and 54(2).

3. The decisions of the Administrative Council shall have no binding force In

   the meaning of Article 189 of the Treaty.

```

```
      50 
   CHAPTER IV

The Boards of Appeal

```

```
                     - 51 
                    Article 44

                Establishment and powers

1. There shall be established within the Office one or more Boards of Appeal.

2. The Boards of Appeal shall be responsible for deciding on appeals against

   the decisions referred to in Article 66.

                    Article 45

             Composition of the Boards of Appeal

The composition of the Boards of Appeal when deciding shall be as follows:

(a) in the case of decisions of the Office taken solely on the basis of the

   examination pursuant to Articles 52 and 53, and decisions regarding entry

   of information in and removal of information from the Register of

   Community Plant Variety Rights, two legally-qualified members and one

   member with prior technical training;

(b) for other decisions, two members with prior technical training and one

   Iega11y-qua11f i ed member.

An alternate shall be appointed for each member.

```

```
                    - 52 
                   Article 46

        Independence of the members of the Boards of Appeal

1. The Chairmen of the Boards of Appeal and the other members thereof shall

   be appointed by the Commission for a term of office of five years on a

   proposal from the Administrative Council. They may not be removed from

   office during that term, unless there are serious grounds for such removal

   by decision of the Court of Justice of the European Communities, having

   been seized by the Commission after obtaining the opinion of the

   Administrative Council. The term of office shall be renewable. The

   function of the members of the Boards of Appeal may be a part-time

   function.

2. The members of the Boards of Appeal shall be independent. In making their

   decisions they shall not be bound by any Instructions whatsoever.

3. The members of the Boards of Appeal may not perform any other duties In

   the Office. The right to perform any other activity shall be determined In

   accordance with the provisions referred to in Article 30(1).

                   Article 47

                Exclusion and objection

1. Members of the Boards of Appeal may not take part in determining any

   matter In which they have a personal Interest, or In which they have

   previously been Involved as representatives of any of the parties, or if

   they participated in making the decision under appeal.

2. If, for one of the reasons mentioned in paragraph 1 or for any other

   reason, a member of a Board of Appeal considers that he should not take

   part in any proceedings, he shall inform the Board of Appeal accordingly.

```

```
                  - 53 
3. Members of the Boards of Appeal may be objected to by any party for one of

   the reasons mentioned In paragraph 1, or If suspected of partiality. An

   objection shall not be admissible If, while being aware of a reason for

   objecting, the party has submitted applications or opinions In

   proceedings.

4. The Boards of Appeal shall decide as to the action to be taken in the

   cases specified in paragraphs 2 and 3 without the participation of the

   member concerned. For the purposes of taking this decision, the member

   objected to shall be replaced by his alternate.

```

```
      - 54 
      PART FOUR

Proceedings before the Office

```

**-** **55** **-**

**CHAPTER** **I**

**AppiI** **cat Ions**

```
                     - 56 
                    Article 48

                 Filing of applications

1. Applicants shall have the choice of submitting their application for grant

   of a Community plant variety right:

   (a) either at the Office directly, or

   (b) at one of the national agencies or sub-offices entrusted or set up

       pursuant to Article 29(4).

2. Where the application Is submitted to one of the national agencies

   referred to in paragraph K b ), the latter shall take all necessary steps

   to ensure that the application is forwarded to the Office within two weeks

   of submission. National agencies may charge the applicant a fee which

   should not exceed the administrative costs Incurred in accepting and

   forwarding the application.

3. Applications that have not reached the Office within one month of

   submission to the national agency shall be deemed to have been withdrawn.

                     Article 49

              Conditions governing applications

1. Applications for grant of a Community plant variety right must contain at

   least the fol lowing:

   (a) particulars Identifying the applicant;

```

```
               - 57 
(b) the name of the original breeder or discoverer of the variety and an

    assurance that, to the best of the applicant's knowledge, no further

    persons have been Involved In the breeding or discovery of the

    variety; if the applicant is not, or not alone, the original breeder

   or discoverer, he shall Indicate, and, on request of the Office,

    provide for the relevant documentary evidence, how the entitlement

    for grant of the Community plant variety right came into his

    possession; if the variety Is derived essentially from individuals

    of only one other variety, the source variety shall also be

    Indicated, without prejudice to the information pursuant to

    paragraph 2(a);

(c) a provisional designation for the variety-,

(d) any other Information required by the Office for the purpose of

    examining the application.

The following shall be supplied with the application:

(a) a technical description of the variety;

(b) a proposal for a variety denomination;

(c) the credentials of any procedural representative.

However, the proposal for a variety denomination may be submitted at a

later date, within a time-limit specified by the Office.

```

```
                     - 58 
                    Article 50

                  Date of appiI cat Ion

The date of an application for grant of a Community plant variety right shall

be the date on which the application was received by the Office pursuant to

Article 48(1)(a) or by the national agency or sub-office of the Office pursuant

to Article 48(1)(b), provided it contains at least the particulars enabling the

identity of the applicant to be determined and a technical description of the

variety is attached.

                    Article 51

                    Prior It les

1. The priorities of applications shall be determined by dates of application

   or, In the case of applications received on the same date, according to

   the order in which they were received pursuant to Article 50, where this

   can be established.

2. If the applicant or his predecessor in title has already applied for a

   property right In respect of the variety in a Member State or In another

   State party to the UPOV Convention, and the date of application is within

   twenty-four months of the filing of the earlier application, the applicant

   shall enjoy a right of priority for the earlier application as regards the

   application for grant of the Community plant variety right, provided the

   earlier application still exists on the date of application.

3. The right of priority shall have the effect that the date on which the

   earlier application was filed shall count as the date of application for

   grant of a Community plant variety right for the purposes of Articles 7,10

   and 11(7).

4. Paragraphs 2 and 3 shall also apply in respect of earlier applications

   that were filed in another State, provided the conditions set out in

   Article 12(1)(b) are met on the date of application.

```

```
                     - 59 
5. A claim for priority may be made only in the application. The claim shall

   lapse If the applicant does not submit to the Office within three months

   of the date of application copies of the earlier application that have

   been certified by the authorities responsible for such application. If the

   earlier application has not been made in one of the official languages of

   the European Communities, the Office may require, In addition, a

   translation of the earlier application in one of these languages.

```

**- 60 -**

**CHAPTER I I**

**Examination**

```
                      - 61 
                     Article 52

                  Formal examination

1. The Office shall examine whether:

   (a) the application has effectively been filed pursuant to Article 48;

   (b) the application satisfies the conditions laid down in Article 49;

   (c) documents relating to a claim for priority have been submitted

       within the time-limit laid down in Article 51(5) and

   (d) the fees due pursuant to Article 80 have been paid within a

       specif led 11me-1imit.

2. If the application complies with the conditions for attribution of a date

   of application pursuant to Article 50, but does not comply with the

   conditions set out in Article 49, the Office shall give the applicant an

   opportunity to correct any deficiencies that may have been identified.

3. If the application does not comply with the conditions for attribution of

   a date of application pursuant to Article 50 or is considered not to have

   been filed pursuant to Article 80 paragraph 2, the Office shall inform the

   applicant thereof directly, or, where this is not possible, by means of a

   publication as set out in Article 86.

                     Article 53

                 Substantive examination

The Office shall verify whether the variety may be the object of a Community

plant variety right pursuant to Article 5, whether the variety is new within

the meaning of Article 10 and whether the applicant is entitled to file an

application pursuant to Article 12. The Office shall verify the entitlement of

the applicant to Community plant variety rights pursuant to Article 11 only if

there are particular reasons for doubting such entitlement. The Office shall

also verify, whether the proposed variety denomination is suitable pursuant to

Article 62. For such purposes, it may avail Itself of the services of other

bod i es.

```

```
                    - 62 
                   Article 54

                Technical examination

1. Where the Office has not discovered any Impediment to the grant of a

   Community plant variety right on the basis of the examination pursuant to

   Articles 52 and 53, it shall arrange for the technical examination

   relating to compliance with the conditions laid down in Articles 7, 8 and

   9 to be carried out by the competent office or offices in at least one of

   the Member States entrusted with responsibility for the examination of

   varieties of the species concerned by the Administrative Council

   (Examination Offices).

2. Where no Examination Office within the meaning of paragraph 1 is

   available, the Office may, with the consent of the Administrative Council,

   entrust other appropriate agencies with responsibility therefore or

   establish its own sub-offices for the purposes of the examination. For the

   purpose of the provisions of this Chapter, such agencies or sub-offices

   shall be considered as Examination Offices.

3. The Office shall forward to the Examination Offices the numbers of copies

   of the application required by the implementing rules.

4. The Office shall determine, through general rules or through requests in

   individual cases, when, where and in what quantities and qualities the

   material for the technical examination Is to be submitted.

5. Where the applicant makes a claim for priority pursuant to Article 51(2)

   or (4), he must submit the necessary material and any further documents

   required within two years of the date of application pursuant to Article

   50. If the earlier application is withdrawn or refused before the expiry

   of two years, the Office may require the applicant to submit the material

   or any further documents required within a specified time-limit.

```

```
                    - 63 
                   Article 55

            The conduct of technical examinations

1. Unless a different manner of technical examination to check fulfilment of

   the conditions laid down in Articles 7, 8 and 9 has been arranged, the

   Examination Offices shall, for the purposes of the technical examination,

   grow the variety or undertake any other investigations required.

2. If the Administrative Council has issued test guidelines or the Office has

   given instructions for the conduct of the technical examinations, the

   Examination Offices shall base the examinations thereon.

3. For the purposes of the technical examination, the Examination Offices

   may, with the approval of the Office, avail themselves of the services of

   other technically qualified bodies and take Into account the available

   findings of such bodies.

4. Each Examination Office shall begin the technical examination, unless the

   Office has otherwise provided, no later than on the date on which a

   technical examination would also have begun on the basis of an application

   for grant of a national property right filed on the date on which the

   application sent by the Office was received by the Examination Office.

5. In the case referred to in Article 54(5), each Examination Office shall

   begin the technical examination, unless the Office has otherwise provided,

   no later than on the date on which an examination would also have begun on

   the basis of an application for grant of a national property right,

   provided the necessary material and any further documents required were

   submitted at the corresponding date.

```

```
                  - 64 
6. The Administrative Council may determine that the technical examination

   for varieties of vine and tree species may begin at a later date.

7. The growing pursuant to paragraph 1 shall last until the decision on the

   grant of the Community plant variety right becomes final.

                    Article 56

                  Examination reports

1. The Examination Office shall, at the request of the Office or If It deems

   the results of the technical examination to be adequate to evaluate the

   variety, send the Office an examination report, and, where it considers

   that the conditions of Articles 7 to 9 are met, a description of the

   variety.

2. The Office shall communicate the results of the technical examination and

   the variety description to the applicant and shall give him an opportunity

   to comment thereon.

3. Where the Office does not consider the examination report to constitute a

   sufficient basis for decision, it may provide for complementary

   examination, unless the applicant, who shall be consulted, objects

   thereto.

4. The results of the technical examination shall be subject to the exclusive

   rights of disposal of the Office and may only otherwise be used by the

   Examination Offices insofar as this Is approved by the Office.

                     Article 57

              Costs of technical examinations

The Office shall pay the Examination Offices a fee in accordance with the

implementing rules.

```

```
                    - 65 
                   Article 58

                   Object Ions

1. Any person may lodge a written objection to the grant of a Community plant

   variety right with the Office.

2. Objectors shall be party to the proceedings for grant of the Community

   plant variety right in addition to the applicant.

3. Objections may be based only on the contention that:

   (a) the conditions laid down In Articles 7 to 11 are not satisfied;

```

**`(b)`** **`there is an Impediment under Article 62(3) or(4) to a variety`** _**/ \**_

```
      denomination.

4. Objections under paragraph 3 may be lodged:

   (a) at any time prior to the grant of the Community plant variety right,

      In the case of paragraph 3(a);

   (b) within three months of the publication of the variety denomination

      pursuant to Article 86(1)(c), in the case of objections under

      paragraph 3(b).

                   Article 59

       Priority of a new application in the case of objections

Where an objection on the grounds that the conditions laid down in Article 11

are not met leads to the withdrawal or refusal of the application for grant of

a Community plant variety right and if the objecting party files an application

for grant of the Community plant variety right within one month following the

withdrawal or within one month of the date on which the refusal becomes final

In respect of the same variety, he may require that the date of the withdrawn

or refused application be deemed to be the date of his application.

```

**- 66 -**

**CHAPTER I I I**

**Dec** **i s ions**

```
                    - 67 
                   Article 60

                    Refusal

1. The Office shall refuse applications for grant of a Community plant

   variety right if and as soon as it establishes that the applicant:

   (a) has not remedied any deficiencies within the meaning of Article 52

      which he was given an opportunity to correct within the time-limit

      not if led to him;

   (b) has not compiled with a rule or request pursuant to Article 54(4) or

      (5) within the time-limit laid down, unless the Office has consented

      to non-submission;

   (c) has not paid the due fee for the technical examination within the

      time-Mm it laid down, or

   (d) has not proposed a variety denomination which is suitable pursuant

      to Article 62, or in the case referred to in Article 62(5) has

      objected to the variety denomination selected by the Office.

2. The Office shall also refuse applications for grant of a Community plant

   variety right if:

   (a) it establishes that the conditions it is required to verify pursuant

      to Article 53 have not been fulfilled, or

   (b) it reaches the opinion on the basis of the examination reports

```

**`pursuant to Article 56, that the conditions laid down in Articles`** _**7,**_

```
      8 and 9 have not been fulfilled.

                   Article 61

                     Grant

If the Office is of the opinion that the findings of the examination are

sufficient to decide on the application and there are no impediments pursuant

to Article 60, it shall grant the Community plant variety right. The decision

must include an official description of the variety.

```

```
                     - 68 
                     Article 62

                  Variety denomination

1. Where a Community plant variety right is granted, the Office shall

   designate, for the variety in question, the variety denomination proposed

   by the applicant pursuant to Article 49, if it considers, on the basis of

   the examination made pursuant to the third sentence of Article 53, that

   this denomination is suitable.

2. A variety denomination is suitable, if there is no impediment pursuant to

   paragraphs 3 or 4.

3. There is an impediment for the designation of a variety denomination

   where:

   (a) its use in the territory of the Community is precluded by the prior

       r ight of a third party;

   (b) it may commonly cause its users difficulties as regards recognition

       or reproduction;

   (c) it is identical or may be confused with a variety denomination under

       which another variety of the same or of a closely related species is

       entered in an official register of plant varieties or under which

       material of another variety has been marketed in a Member State or

       in a State party to the UPOV Convention, unless the other variety no

       longer remains in existence and its denomination has acquired no

       special significance;

   (d) it is identical or may be confused with other designations which are

       commonly used for the marketing of goods or which have to be kept

       free under other legislation;

   (e) it Is liable to give offence in one of the Member States or is

       contrary to public policy, or

```

```
                     - 69 
   (f) It Is liable to mislead or to cause confusion concerning the

      characteristics, the value or the identity of the variety, or the

       Identity of the breeder or discoverer or any other party to

      proceedings.

4. There is another Impediment where, in the case of varieties which have

   already been entered

   (a) In one of the Member States,

   (b) in another state party to the UPOV Convention, or

   (c) In another State for which it has been established in a Community

       act that varieties are evaluated there under rules which are

       equivalent to those laid down in the Directives on common catalogues

   in an official register of plant varieties or material thereof has been

   marketed there for commercial purposes, the proposed variety denomination

   differs from that which has been registered or used there, unless the

   latter one is the object of an impediment pursuant to paragraph 3.

5. Where the applicant does not propose a suitable denomination the Office

   shall designate a denomination of its own motion, provided the applicant

   does not object.

6. The Office shall publish the species which it considers "closely related"

   within the meaning of paragraph 3(c).

```

```
            - 70 
            CHAPTER IV

The maintenance of Community plant variety rights

```

```
                      - 71 
                     Article 63

                  Technical verification

1. The Office shall verify the continuing existence unaltered of the

   protected varieties.

2. For this purpose, a technical verification shall be carried out pursuant

   to Articles 54 and 55.

3. The holder shall be required to provide all the information necessary to

   assess the continuing existence unaltered of the variety to the Office and

   to the Examination Offices to which technical verification of the variety

   has been entrusted. He shall be required, in accordance with the

   instructions given by the Office, to submit material of the variety and to

   permit to verify whether appropriate measures have been taken to ensure

   the continuing existence unaltered of the variety.

                     Article 64

             Report on the technical verification

1. At the request of the Office, or if it establishes that the variety is not

   homogeneous or stable, the Examination Office entrusted with the technical

   verification shall send the Office a report on its findings.

2. If any deficiencies pursuant to paragraph 1 have been found during the

   technical verification, the Office shall inform the holder of the results

   of the technical verification and shall give him an opportunity to comment

   thereon.

```

```
                     - 72 
                     Article 65

             Amendment of the variety denomination

1. The Office shall amend a variety denomination designated pursuant to

   Article 62 if it establishes that the denomination does not satisfy, or no

   longer satisfies, the conditions laid down in Article 62 and in the event

   of a prior conflicting right of a third party, if the holder agrees to the

   amendment or the holder or any other person required to use the variety

   denomination has been prohibited, by a final judgment, for this reason

   from using the variety denomination.

2. The Office shall give the holder an opportunity to propose another variety

   denomination and shall otherwise proceed in accordance with Article 62.

3. Objections may be lodged against the new variety denomination in

   accordance with Article 58(3)(b).

```

**- 73 -**

**CHAPTER V**

**AppeaI s**

```
                    - 74 
                   Article 66

              Decisions subject to appeal

1. An appeal shall lie from decisions of the Office which have been taken

   pursuant to Articles 19, 20, 60, 61, 62 and 65 as well as on decisions

   related to objections pursuant to Article 58, to fees pursuant to Article

   80, to the apportionment of costs pursuant to Article 82, to the entering

   or deletion of information In the Register pursuant to Article 84, to the

   public inspection pursuant to Article 85 and to publications pursuant to

   Article 86. It shall have suspensive effect.

2. An appeal against a decision which does not terminate proceedings as

   regards one of the parties may only be made in conjunction with an appeal

   against the final decision, unless the decision allows separate appeal.

                   Article 67

          Persons entitled to appeal and to be parties

                to appeal proceedings

Any party to proceedings who is adversely affected by a decision resulting from

such proceedings may appeal. The other parties to those proceedings and the

Office shall be party to the appeal proceedings.

                   Article 68

              Time-limit and form of appeal

Notice of appeal shall be filed in writing at the Office within two months of

the notification of the decision from which the appeal is made and a written

statement setting out the grounds of appeal shall be filed within four months

after notification of the decision.

```

```
                      - 75 
                     Article 69

                 Interlocutary revision

1. If the body of the Office which has prepared the decision considers the

   appeal to be admissible and well-founded, it shall rectify its decision.

   This shall not apply where the appellant is opposed by another party to

   the proceedings.

2. If the appeal is not allowed within one month after receipt of the

   statement of grounds, it shall forthwith be remitted to the Board of

   Appea I.

                      Article 70

                 Examination of appeals

1. If the appeal is admissible, the Board of Appeal shall examine whether the

   appeal is well-founded.

2. When examining the appeal, the Board of Appeal shall as often as necessary

   invite the parties to file observations on notifications issued by itself

   or on commun!cat ions from the other parties within specified time-limits.

                     Article 71

                   Decision on appeal

The Board of Appeal shall decide on the appeal on the basis of the examination

carried out pursuant to Article 70. The Board of Appeal may exercise any power

which lies within the competence of the Office, or it may remit the case to the

competent body of the Office for further action. The latter one shall,

insofar as the facts are the same, be bound by the ratio decidendi of the Board

of Appeal.

```

```
                     - 76 
                    Article 72

                   Further appeal

1. A further appeal to the Court of Justice of the European Communities shall

   lie from decisions of the Board of Appeal. Such further appeals shall

   have suspensive effect.

2. The further appeal may be lodged on grounds of lack of competence,

   infringement of an essential procedural requirement, infringement of the

   Treaty, of this Regulation, or of any rule of law relating to their

   application or misuse of power.

3. The further appeal may be made by any party to the proceedings before the

   Board of Appeal who is adversely affected by its decision, or by the

   Commission or the Office.

4. The further appeal shall be lodged with the Court of Justice within two

   months of notification of the decision of the Board of Appeal.

5. The Office may intervene in the proceedings before the Court of Justice.

   It may also present observations without intervening in the proceedings.

6. If the Court of Justice remits the case for further action to the Board of

   Appeal, the Board shall, in so far as the facts are the same, be bound by

   the ratio decidendi of the Court of Justice.

```

```
           - 77 
          CHAPTER VI

Miscellaneous conditions governing proceedings

```

```
                     - 78 
                    Article 73

         Statement of grounds on which decisions are based,

                  r ight of audience

Decisions of the Office shall be accompanied by statements of the grounds on

which they are based. They shall be based only on grounds or evidence on which

the parties Involved have had an opportunity to present their comments.

                    Article 74

  /

       Examination of the facts by the Office of its own motion

In proceedings before it the Office shall make investigations on the facts of

its own motion, to the extent that they come under the examination pursuant to

Articles 53 and 54. It may disregard facts or items of evidence which have not

been submitted In due time by the parties involved.

                    Article 75

                   Oral proceedings

1. If the Office considers oral proceedings to be expedient, they shall be

   held either on the initiative of the Office itself or at the request of

   any of the parties to the proceedings.

2. Without prejudice to paragraph 3, oral proceedings before the Office shall

   not be pub Iic.

3. Oral proceedings before the Board of Appeal including delivery of the

   decision, shall be public insofar as the Board of Appeal before which the

   proceedings are taking place does not decide otherwise in circumstances

   where serious and unwarranted disadvantages could arise from admitting the

   public, particularly for any of the parties to the proceedings.

```

```
                    - 79 
                   Article 76

                 Taking of evidence

1. In any proceedings before the Office, the means of giving or obtaining

   evidence shall include the following:

   (a) hearing the parties;

   (b) requests for information;

   (c) the production of documents or other evidence;

   (d) hearing the witnesses;

   (e) opinions by experts;

   (f) Inspection;

   (g) sworn affidavits.

2. Where the Office decides through a collective body, that body may

   commission one of its members to examine the evidence adduced.

3. If the Office considers it necessary that a party, witness or expert give

   evidence orally, it shall either:

   (a) issue a summons requiring the relevant person to appear before it,

      or

   (b) request the competent judicial or other authority in the country of

      domicile of the relevant person to take the evidence as provided for

      in Article 88(2).

4. A party, witness or expert who is summoned before the Office may request

   it to allow his evidence to be heard by the competent judicial or other

   authority in his country of domicile. On receipt of such a request or in

   the case that no reaction was given to the summons, the Office may, in

   accordance with Article 88(2), request the competent judicial or other

   authority to hear the evidence of that person.

```

```
                  - 80 
5. If a party, witness or expert gives evidence before the Office, the Office

   may, if it considers it advisable that the evidence be given under oath or

   otherwise In binding form, request the competent Judicial or other

   authority In the country of domicile of the relevant person to hear his

   evidence under the requisite conditions.

6. When the Office requests a competent judicial or other authority to take

   evidence, it may request it take the evidence in binding form and to

   permit a member of the Office to attend the hearing and question the

   party, witness or expert either through that judicial or other authority

   or directly.

                     Article 77

                      Service

The Office shall of its own motion effect service of all decisions and

summonses, and of notifications and communications, from which a time-limit is

reckoned, or which are required to be served either in pursuance of other

provisions of this Regulation or by provisions adopted pursuant to this

Regulation or by order of the President of the Office. Service may be effected

through the competent variety offices of the Member States.

                     Article 78

                 Restitutio In integrum

1. Where, in spite of having taken all due care in the particular

   circumstances, the applicant or holder or any party to proceedings before

   the Office has been unable to observe a time-limit vis-à-vis the Office,

   his rights shall, upon application, be restored if his failure to respect

   the time-limit has resulted directly, by virtue of this Regulation, in the

   loss of any right or means of redress.

```

```
                  - 81 
2. Applications shall be filed in writing within two months after the cause

   of non-compliance when the t i me-limit has ceased to operate. The act

   omitted shall be completed within this period. Applications shall be

   admissible only within the period of one year following the expiry of the

   time-Mm it which has not been observed.

3. An application shall be accompanied by a statement of the grounds on which

   it Is based and the facts on which It relies.

4. The provisions of this Article shall not apply to the time-limits referred

   to in paragraph 2 nor to the time-limits specified in Article 51(2), (4)

   and (5).

5. Any person who, in a Member State, has in good faith used or made

   effective and genuine arrangements to use a variety which is the subject

   of a published application for grant of a Community plant variety right,

   or of a Community plant variety right that has been granted, in the course

   of a period between the loss of rights pursuant to paragraph 1 in respect

   of the application or of a Community plant variety right that has been

   granted and the restoration of those rights, may without payment continue

   such use in the course of his business or for the needs thereof.

                     Article 79

               Reference to general principles

1. In the absence of procedural provisions in this Regulation or in

   provisions adopted pursuant to this Regulation, the Office shall refer to

   the principles of procedural law which are generally recognized in the

   Member States.

2. Article 47 shall apply mutatis mutandis to the staff of the Office in so

   far as it is involved in decisions of the kind referred to in Article 66,

   and to the staff of the Examination Offices, in so far as it participates

   in measures for the preparation of such decisions.

```

```
    - 82 
    CHAPTER VI I

Fees, settlement of costs

```

```
                     - 83 
                    Article 80

                      Fees

1. The Office shall charge fees for Its official acts provided for under this

   Regulation as well as for each year of the duration of a Community plant

   variety right, pursuant to the fees regulations adopted in accordance with

   Article 108.

2. If fees due in respect of the official acts set out In Article 108(2) or

   of other official acts referred to in the fees regulations, which are only

   to be carried out on application, are not paid, the application shall be

   deemed not to have been filed or the appeal not to have been lodged if the

   acts necessary for the payment of the fees have not been effected within

   one month of the date on which the Office served a new request for payment

   of fees and indicated in so doing these consequences of failure to pay.

3. If certain Information provided by the applicant for grant of a Community

   plant variety right can only be verified by a technical examination which

   goes beyond the framework established for the technical examination of

   varieties of the taxon concerned, the fees for the technical examination

   may be increased, after having heard the person liable to pay the fees, up

   to the amount of the expenditure actually incurred.

4. In the case of a successful appeal, the appeal fees or, in case of a

   partial success, the corresponding part of the appeal fees, shall be

   refunded. However, the refund can be fully or partly refused if the

   decision is based on facts the raising of which was delayed.

```

```
                      - 8 4 
                     Article 81

             Termination of financial obligations

1. The Office's right to require payment of fees shall lapse after four years

   from the end of the calendar year In which the fees became due for

   payment.

2. Rights against the Office for the refunding of fees or of sums overcharged

   by the Office shall lapse after four years from the end of the calendar
  /
   year In which the rights arose.

3. A request for payment of a fee shall have effect to Interrupt the time
   limit specified in paragraph 1, and a written and reasoned claim for

   refund shall have effect to interrupt the time-limit specified in

   paragraph 2. After interruption the time-limit shall begin to run again

   immediately and shall terminate at the latest six years after the end of

   the calendar year in which it originally commenced, unless in the meantime

   Judicial proceedings to enforce the right have been instituted; In this

   case the time-limit shall end not earlier than one year after the Judgment

   has acquired the authority of a final decision.

                     Article 82

                 Apportionment of costs

1. Each party to objection proceedings or to proceedings for revocation or

   cancellation of a Community plant variety right, or to appeal proceedings

   shall meet the costs he has incurred unless a decision of the Office or

   the Board of Appeal, for reasons of equity, orders a different

   apportionment of essential costs, including travel and subsistence and the

   remuneration of an agent, adviser or lawyer. A decision on the

   apportionment of costs may also be taken on request when a Community plant

   variety right application, an objection or an application for revocation

   or cancellation of the Community plant variety right is withdrawn, or

   where the holder surrenders It pursuant to Article 18(2).

```

```
                     - 85 
2. The Office shall, upon application, determine the amount of costs to be

   paid where a decision is taken pursuant to paragraph 1 to divide them.

                    Article 83

      Enforcement of decisions which determine the amount of costs

1. Final decisions of the Office which determine the amount of costs shall be

   enforceable.

2. Enforcement shall be governed by the rules of civil procedure applicable

   in the Member State in which it takes place. Subject only to verification

   that the relevant document is authentic, the enforcement clause or

   endorsement shall be appended by the national authority appointed for that

   purpose by the Government of each Member State; the Governments shall

   inform the Office and the Court of Justice of the European Communities of

   the identity of each such national authority.

3. When, upon application by the party seeking enforcement, these formalities

   have been completed, it shall be entitled to proceed to endorsement under

   national law by bringing the matter directly before the competent body.

4. Enforcement shall not be suspended except by decision of the Court of

   Justice of the European Communities. Control as to the regularity of

   enforcement measures shall, however, reside with the national courts.

```

```
           - 86 
         CHAPTER VI I 1

Register of Community Plant Variety Rights,

      Information of the public

```

```
                     - 87 
                    Article 84

               Establishment of the Register

1. The Office shall keep a Register of Community Plant Variety Rights

   wherein, after grant of a Community plant variety right, the following

   particulars shall be entered:

   (a) the species and variety denomination of the variety;

   (b) the official description of the variety or a reference to documents

       in the Office's possession in which the official description of the

       variety is contained as integrating part of the Register;

   (c) In the case of varieties for which material with specific components

       has to be used repeatedly for the production of material, a

       reference to such components;

   (d) the names and addresses of:

       - the holder,

       - the original breeder or discoverer,

       - the procedural representative;

   (e) the date on which the Community plant variety right begins and ends,

       together with the reasons for the termination of the right;

   (f) any contractual exclusive exploitation right, if the holder or the

       licensee in submitting documented evidence so requests, or

       compulsory exploitation right, including the name and address of the

       person enjoying the right of exploitation;

   (g) any levy of execution pursuant to Article 23, if a party thereto so

       requests;

   (h) any other particular as may be specified in the implementing rules

       pursuant to Article 109.

```

```
                  - 88 
2. The Office may of Its own motion and upon consultation with the holder

   adapt the official variety description In respect of the number and type

   of characteristics or of the specified expressions of those

   characteristics, when necessary, in the light of the current principles

   governing the description of varieties of the taxon concerned, In order to

   render the description of the variety comparable with the descriptions of

   other varieties of the taxon concerned.

3. Changes in holdership or in the Identity of a procedural representative

   shall be entered in the Register if supporting evidence is provided to the

   Office.

4. The holder shall be required, in accordance with the instructions given by

   the Office, to deposit a reference sample of individuals of the variety.

   This sample shall be referred to for determining the identity of the

   var iety.

                     Article 85

                   Pub!1c Inspect Ion

1. The following shall be open to public inspection, in accordance with the

   conditions set up in the implementing rules pursuant to Article 109:

   (a) the Register of Community plant variety rights;

   (b) documents relating to published applications for grant of a

       Community plant variety right;

   (c) documents relating to Community plant variety rights already

       granted;

   (d) the growing of varieties for the purposes of their technical

       examinât ion;

   (e) the growing of varieties for the purpose of verifying their

       continuing existence,

   (f) the reference samples deposited pursuant to Article 84(4).

```

```
                  - 89 
2. Documents relating to applications for grant of a Community plant variety

   right which have not yet been published shall be made available for

   Inspect Ion only:

   (a) with the consent of the applicant, or If

   (b) the person seeking inspection can prove that the applicant has

       stated, directly or indirectly, that after the Community plant

       variety right has been granted he may invoke the rights under it

       against that person.

3. In the case referred to in Article 84(1 )(c), at the request of the

   applicant, all data relating to components, including their cultivation,

   shall be withheld from inspection. Such a request for withholding from

   inspection may not be filed once the decision on the application for grant

   of a Community plant variety right has been taken.

4. Materials submitted or obtained in connection with examinations under

   Articles 54(4), 55 and 63 may not be given to other parties by the

   competent authorities under this Regulation unless the person entitled

   gives his consent or such transfer is required in connection with the

   cooperation covered by this Regulation for the purposes of the examination

   or by virtue of legal provisions.

                     Article 86

                 Periodical Publications

1. The Office shall periodically publish the following in a publication which

   shall be specified by the Administrative Council:

   (a) applications for grant of a Community plant variety right together

       with a statement of the taxon and the provisional designation of the

       variety, the date of application and the name and address of the

       applicant, of the original breeder or discoverer and of any

       procedural representative;

```

```
                  - 90 
   (b) any cases of termination of proceedings for grant of a Community

      plant variety right together with the Information set out In

      subparagraph (a);

   (c) proposals for variety denominations;

   (d) grants of Community plant variety rights together with the

       information laid down In Article 84(1)(a), (d) and (e);

   (e) any cases of termination of Community plant variety rights together

      with the information set out above;

   (f) any cases of creation or termination of contractual exclusive

      exploitation rights or compulsory exploitation rights, in the case

      of Article 84 paragraph 1(f);

   (g) amendments to variety denominations pursuant to Article 65;

   (h) changes in holdership or in the identity of a procedural

      representative pursuant to Article 84(3);

   (I) any levy of execution pursuant to Article 23, if a party thereto so

       requests.

2. In addition, the publication shall contain notices and information of a

   general character issued by the Office, and may contain any other

   information relevant to this Regulation or its implementation.

                    Article 87

           Exchange of Information and of publications

1. The Office and the competent variety offices of the Member States shall,

   on request and without prejudice to the conditions set up for the sending

   of results of technical examinations, dispatch to each other for their own

   use, free of charge, one or more copies of their respective publications

   and any other useful information relating to property rights applied for

   or granted.

2. The data referred to in Article 85(3) shall be excluded from information,

   unless

   (a) the information is necessary for the conduct of the examinations

       pursuant to Articles 54 and 63, or

   (b) the applicant or holder gives his consent.

```

```
                     - 91 
                     Article 88

             Administrative and legal cooperation

1. Unless otherwise provided in this Regulation or in national law, the

   Office and the courts or authorities of the Member States shall on request

   give assistance to each other by communicating Information or opening

   files related to the variety, and samples or growing thereof for

   inspection. Where the Office lays files, samples or growing thereof open

   to inspection by courts or public prosecutors' offices, the inspection

   shall not be subject to the restrictions laid down in Article 85.

2. Upon receipt of letters rogatory from the Office, the courts or other

   competent authorities of the Member States shall undertake on behalf of

   that Office and within the limits of their Jurisdiction, any necessary

   enquiries or other related legal measures.

```

```
    92 
   PART FIVE

Impact on other laws

```

```
                     - 93 
                    Article 89

              Cumulative protection prohibited

1. Varieties that are the subject matter of Community plant variety rights

   shall not be patented nor be the subject matter of national plant variety

   rights. Any rights granted contrary to the first sentence shall be

   ineffeetIve.

2. Where the holder has been granted another right as referred to in

   paragraph 1 for the same variety prior to grant of the Community plant

   variety right, he shall be unable to invoke the rights conferred by such

   protection in respect of the variety for as long as the Community plant

   variety right remains effective.

                    Article 90

               Application of national law

Claims under Community plant variety rights shall be subject to limitations

imposed by the law of the Member States only as expressly referred to in this

Régulât ion.

```

```
           - 9 4 
           PART SIX

Civil law claims, Infringements, Jurisdiction

```

```
                     - 95 
                     Article 91

          Infringement of Community plant variety rights

1. Whosoever :

   (a) effects one of the acts set out in Article 13(2) without being

       entitled to do so, in respect of a variety for which a Community

       plant variety right has been granted or

   (b) contrary to Article 17(3) uses the variety denomination of a variety

       for which a Community plant variety right has been granted or a

       designation that may be confused with it,

   may be sued by the holder to enjoin such infringement or to pay reasonable

   compensation or both.

2. Whosoever acts intentionally or negligently shall moreover be liable to

   compensate the holder for any further damage resulting from the act in

   question. In cases of slight negligence, such claims shall be reduced

   according to the degree of such slight negligence, but not however to the

   extent that they are less than the advantage derived therefrom by the

   person who committed the infringement.

                     Article 92

        Acts prior to grant of Community plant variety rights

The holder may require reasonable compensation from any person who has, in the

time between publication of the application for grant of a Community plant

variety right and grant thereof, effected an act that he would be prohibited

from performing subsequent thereto.

```

```
                      - 96 
                     Article 93

                    Prescription

Claims pursuant to Articles 91 and 92 shall be barred by prescription after

three years from the time at which the holder has knowledge of the act and of

the identity of the party liable or, irrespective of such knowledge, after

thirty years from the termination of the act concerned.

                     Article 94

     Supplementary application of national law regarding infringement

1. Where the party liable pursuant to Article 91 has, by virtue of the

   infringement, made any gain at the expense of the holder or of a person

   entitled to exploitation rights, the courts competent pursuant to Articles

   97 or 98 shall apply their national law, including their private

   international law, as regards restitution.

2. Paragraph 1 shall also apply as regards other claims that may arise in

   respect of the performance or omission of acts pursuant to Article 92 in

   the time between publication of the application for grant of a Community

   plant variety right and the disposal of the request.

3. In all other respects the effects of Community plant variety rights shall

   be determined solely in accordance with this Regulation.

                     Art icle 95

       Claiming entitlement to a Community plant variety right

1. If a Community plant variety right has been granted to a person who is not

   entitled to it under Article 11, the person entitled to it may, without

   prejudice to any other remedy which may be open to him under the laws of

   the Member States, claim to have the right to the Community plant variety

   right transferred to him.

```

```
                   - 97 
2. Where a person is entitled to only part of a Community plant variety

   right, that person may, In accordance with paragraph 1, claim to be made a

   Joint holder.

3. Claims pursuant to paragraphs 1 and 2 may be Invoked only within a period

   of up to five years of publication of the grant of the Community plant

   variety right. This provision shall not apply If the holder knew, at the

   time it was granted to or acquired by him, that he was not entitled to

   such rights or that entitlement thereto was not vested solely in him.

4. The person entitled shall be eligible mutatis mutandis to pursue claims

   pursuant to paragraphs 1 and 2 in respect of an application for grant of a

   Community plant variety right filed by a person who was not entitled to it

   or in whom the entitlement was not vested solely.

                     Article 96

           Consequences of a change in holdership of a

               Community plant variety right

1. In the event of a complete change in the holdership of a Community plant

   variety right in consequence of a final judgement delivered pursuant to

   Articles 97 or 98 for the purposes of claiming entitlement under

   Article 95(1), any exploitation or other rights shall lapse with the entry

   of the person entitled in the Register of Community Plant Variety Rights.

```

```
                  - 98 
2. Where the holder or a person enjoying the right of exploitation has

   effected one of the acts set out in Article 13(2) or has made effective

   and genuine arrangements to do so prior to the commencement of the

   proceedings pursuant to Articles 97 or 98, they may continue or perform

   such acts provided they request a non-exclusive exploitation right from

   the new holder entered in the Register of Community Plant Variety Rights.

   Such requests must be made within the time-limit laid down in the

   implementing rules. The exploitation right shall be granted by the Office

   for a reasonable period on reasonable conditions.

3. Paragraph 2 shall not apply where the holder or persons enjoying the right

   of exploitation acted in bad faith when they effected the acts or began to

   make the arrangements.

                     Article 97

        Jurisdiction and procedure In legal actions relating

                  to civ 11 law claims

1. The Convention on Jurisdiction and the Enforcement of Judgments in Civil

   and Commercial Matters, signed in Lugano on 16 September 1988, hereinafter

   referred to as "the Convention", as well as the complementary provisions

   of this Article and of Articles 98 to 102 of this Regulation shall apply

   to proceedings relating to actions in respect of the claims referred to In

   Articles 91 to 96.

2. Proceedings of the type referred to in paragraph 1 shall be brought In the

   courts

   a) of the Member State or another Contracting Party to the Convention

       in which the defendant is domiciled or has his seat or, in the

       absence of such, has an establishment, or

   b) if this condition is not met in any of the Member States or

       Contracting Parties, of the Member State in which the plaintiff is

       domiciled or has his seat or, In the absence of such, has an

       establIshment, or

   c) if this condition is also not met in any of the Member States, of

       the Member State in which the seat of the Office Is located.

```

```
                 - 99 
   The competent courts shall have Jurisdiction In respect of Infringements

   alleged to have been committed in any of the Member States.

3. Proceedings relating to actions In respect of claims for Infringement may

   also be brought in the courts for the place where the harmful event

   occurred. In such cases, the court shall have Jurisdiction only in

   respect of infringements alleged to have been committed in the territory

   of the Member State to which it belongs.

4. The legal processes and the competent courts shall be those that operate

   under the laws of the State determined pursuant to paragraphs 2 or 3.

                     Article 98

                Supplementary provisions

1. Actions for claiming entitlement pursuant to Article 95 shall not be

   considered to fail under the provisions of Article 5(3) and (4) of the

   Convention.

2. Notwithstanding Article 97, Articles 5(1), 17 and 18 of the Convention

   shalI apply.

3. For the purposes of applying Articles 97 and 98, the domicile or seat of a

   party shall be determined pursuant to Articles 52 and 53 of the

   Convent ion.

```

```
                     - 100 
                     Article 99

               Rules of procedure applicable

Where Jurisdiction lies with national courts pursuant to Articles 97 and 98,

the rules of procedure of the relevant State governing the same type of action

relating to corresponding national industrial property rights shall apply

without prejudice to Articles 100 and 101.

                    Article 100

          Entitlement to bring an action for infringement

1. Actions for infringement may be brought by the holder. Persons enjoying

   exploitation rights may bring such actions only If the holder consents

   thereto.

2. Any person enjoying exploitation rights shall, for the purpose of

   obtaining compensation for damage suffered by him, be entitled to

   intervene in an infringement action brought by the holder.

                     Article 101

          Obligation of national courts or other bodies

A national court or other body hearing an action relating to a Community plant

variety right shall treat the Community plant variety right as valid.

```

```
                     - 101 
                    Article 102

                  Stay of proceedings

1. Where an action relates to claims pursuant to Article 95(4) and the

   decision depends upon the protectablIIty of the variety pursuant to

   Article 6, this decision may not be given before the Office has decided on

   the appiI cat ion.

2. Where an action relates to a Community plant variety right that has been

   granted and in respect of which proceedings for revocation or cancellation

   pursuant to Articles 19 or 20 have been initiated, the proceedings may be

   stayed insofar as the decision depends upon the validity of the Community

   plant var iety r ight.

                    Article 103

      Penalties for Infringement of Community plant variety rights

Member States shall ensure that on 1 July 1992 at the latest the same

provisions are made applicable to penalize infringements of Community plant

variety rights as apply in the matter of Infringements of corresponding

national industrial property rights.

```

```
               - 102 
               PART SEVEN

Budget, financial control, Community implementing provisions

```

```
                     - 103 
                    Article 104

                     Budget

1. Estimates of all the Office's revenue and expenditure shall be prepared

   for each financial year and shall be shown In the Office's budget, and

   each financial year shall correspond with the calendar year.

2. The revenue and expenditure shown in the budget shall be in balance.

3. Revenue shall comprise, without prejudice to other types of income, total

   fees payable pursuant to Article 80 under the fees regulations adopted in

   accordance with Article 108 and, to the extent necessary, a subsidy from

   the general budget of the European Communities, entered under a specific

   heading of the Commission Section.

                    Article 105

                Preparation of the budget

1. The President shall draw up each year an estimate of the Office's revenue

   and expenditure for the following year and shall send it to the Commission

   not later than 31 March each year, together with an establishment plan and

   an opinion from the Administrative Council.

2. The Commission shall annex the estimate to the preliminary draft budget of

   the European Communities. The Commission may attach an opinion on the

   estimate along with an alternative estimate. If a subsidy under

   Article 104(3) is necessary, the Commission may propose such amendment of

   the estimate as it considers requisite.

3. The Office's budget shall be adopted by the budget authority in accordance

   with the same procedure as the general budget.

```

```
                     - 104 
4. Where appropriations for unforeseen expenditure are contained In a budget,

   the use thereof shall be subject to the prior approval of the

   Administrative Council.

                    Article 106

                     Control

1. Not later than 31 March each year the President shall send the Commission

   and the Court of Auditors accounts of the Office's total revenue and

   expenditure for the preceding financial year. The Court of Auditors shall

   examine them in accordance with Article 206a of the Treaty.

2. The European Parliament shall give a discharge to the President of the

   Office in accordance with the procedure laid down in Article 206b of the

   Treaty.

3. Control of commitment and payment of all expenditure and control of the

   existence and recovery of all revenue of the Office shall be carried out

   by the Financial Controller of the Commission.

                    Article 107

                 Financial provisions

The Financial Regulations applicable to the general budget of the European

Communities shall apply to the Office.

                    Article 108

                   Fees regulations

1. The Fees regulations shall determine in particular the circumstances under

   which fees are due pursuant to Article 80(1), the amounts of the fees to

   be paid and the ways in which they are to be paid.

```

```
                  - 105 
2. Fees shall be provided for at least in respect of the fol lowing off Ida I

   acts:

   (a) the processing of applications for grant of a Community plant

       variety right, comprising the following measures:

       - the formal examination,

       - the substantive examination,

       - the examination of the variety denomination,

       - the decision,

       - any not Ices;

   (b) the arranging or carrying out of the technical examination;

   (c) the processing of an appeal including the decision.

3. The amounts of the fees shall be fixed in such a manner that, after a

   transitional period, the Office's revenue covers at least its total

   variable expenditure.

4. The fees regulations shall be adopted in accordance with the procedure

   laid down in Article 110, after consultation of the Administrative Council

   on the draft of the measures to be taken.

                    Article 109

               Other implementing provisions

1. Detailed implementing rules shall be adopted for the purpose of applying

   this Regulation. They shall in particular include provisions defining the

   relationship between the Office and the Examination Offices, agencies or

   its own sub-offices referred to in Articles 29(4) and 54(1) and (2), and

   may include provisions on matters referred to In Article 38(1) second

   sentence, (2), (5) and (6).

2. The procedure of the Boards of Appeal shall be determined in rules of

   procedure of the Boards of Appeal.

3. The implementing rules and the rules of procedure of the Boards of Appeal

   shall be adopted in accordance with the procedure laid down In Article

   110, after consultation of the Administrative Council on the draft of the

   measures to be taken.

```

```
                - 106 
                    Article 110

                     Procedure

The Commission sha11 be assisted by a committee of an advisory nature composed

of the representatives of the Member States and chaired by the representative

of the Commission.

The representative of the Commission shall submit to the committee a draft of

the measures to be taken. The committee shall deliver its opinion on the draft,

within a time limit which the chairman may lay down according to the urgency of

the matter, if necessary by taking a vote.

The opinion shall be recorded in the minutes; in addition, each Member State

shall have the right to ask to have its position recorded in the minutes.

The Commission shall take the utmost account of the opinion delivered by the

committee. It shall inform the committee of the manner in which its opinion has

been taken Into account.

```

```
       - 107 
       PART EIGHT

Transitional and final provisions

```

```
                     - 108 
                    Article 111

                    Derogations

1. Notwithstanding Article 10(1)(a), a variety shall be deemed to be new also

   In cases where Individuals thereof were disposed of to others In the

   territory of the Community for commercial purposes, within four years, in

   the case of vine or tree species within six years, before the entry into

   force of this Regulation, if the date of application is within one year of

   that date.

2. Notwithstanding Article 51(2), the applicant for the grant of Community

   plant variety rights may claim the priority of an earlier application in

   one of the Member States also in cases, where the earlier application was

   filed within four years, in the case of vine or tree species within six

   years, before the entry into force of this Regulation, if the date of

   application is within one year of that date. The first sentence shall

   apply also to cases where the property right has already been granted In

   the Member State concerned and is still valid.

                    Article 112

                Transitional provisions

The Office shall be established in good time to assume fully the tasks

incumbent upon it pursuant to this Regulation as from 1 July 1992.

```

```
                      - 109 
                     Article 113

                   Entry Into force

This Regulation shall enter into force on 1 April 1991.

Articles 1, 2, 3, 5 to 28 and 48 to 102 shall apply from 1 July 1992.

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

Member States.

Done at Brussels; For the Commission

```

**-** **110** **-**

**F I N A N C I A L** **S T A T E M E N T**
**concerning :**

```
A proposal for a Council Regulation (EEC) on Community plant variety rights (1)

1. Budget heading : I I IB item : 5101 Title : Realisation of the Internal

                               market In the field of

                               agrI culture

2. Legal basis : art. 43

3. ClassiflcatIon : Non-compulsory expenditure

```

_**i**_ **`.`** **`_`** **`—`** **`_`** **`_`**

```
4. Purpose / description of the measure : In order to permit the Introduction of
  Community-wide plant breeders'rIghts In the context of the single market, It Is
   necessary to set up a Community variety office.

5. Method of calculation :

5.1 Form of expenditure : Participation In the administrative costs of the office.
5.2 Community contribution : Subsidy based on real needs.

5.3 Ca leu I at ion -. Total estimated administrative costs of the office amount to

   3.5 MECU per year. This includes accomodation and staffing (2,0 MECU, assuming

   20 staff members) as well as the var lable costs of the office (1,5 MECU, trials

   costs, reimbursement for activities of national Institutions, Inspection of
   triais, meetings, translation, etc.). Trials costs of 0,5 MECU would be charged
   entirely to plant breeders from the beginning. The remaining variable costs
   initially to be covered by the Community would be phased out over a 3 year period
   after the first year of full establishment of the office. I.e. 1994.

6. Financial Implication as regards operating appropriations :

6.1 Schedule of appropriations (m ECU)

       Year

       1991 p. m
      1992 0.8 (2)
      1993 1.5 (2)
      1994 3.0 (3)

       1995 2.7

       1996 2.4

       Following years 2.0 max.

       TOTAL 91-96 10.4

6.2 Financing during current year : nil

7. Observât Ions -.

 (1) This measure appears in the Commission's White Paper for completing the Internal
   market in the field of agriculture.

 (2) Only half of the staff foreseen will be engaged In the first two years.
 (3) It is estimated that from 1994 until 1997 each year an additional 0,3-0,4 MECU of
   the var iab le costs can be covered by the office's revenue from charging fees to
   plant breeders.

```

```
                                   111 
      COMPETITIVENESS AND EMPLOYMENT IMPACT STATEMENT

I What is the main reason for introducing the measure?

  To establish a Community system for the protection of the
  breeding or the detection of new plant varieties (industrial
  property right sui generis, as established by UPOV and
  implemented by most Member States) with the aim to ensure that
  breeders may acquire, by the time of the completion of the
  internal market, protection through a single decision with
  direct and uniform effect in the whole of the Community.

II Features of the businesses in question. In particular:

  a) Are they many SMEs°

    Plant breeders are directly concerned; merchants and users
    of material of protected plant varieties, including farmers,
    are indirectly concerned; both groups comprise many SMEs.

  b) Are they concentrated in regions which are:

    i. eligible for regional aid in the Member States?
      Not so far as Commission services are aware

    ii. eligible under the ERDF°

      Not so far as Commission services are aware

III What direct obligations does this measure impose on businesses?

  The obligations are those which are already established under
  the current national plant breeders' rights ; merchants and users
  of material of protected plant varieties would need the consent
  of the breeder (licence).

IV What indirect obligations are local authorities likely to impose
  on businesses?

  The Commission services can foresee none.

V Are there any special measures in respect of SMEs? Please
  specify.

  No specific measures.

VI What is the likely effect on:

  a) the competitiveness of businesses?
    This is"difficult to assess: one«of the reasons to safeguard
    the genuine "breeders' exemption" is to further the position
    of competitiveness of SME breeders with others.

  b) employment?
    Expected to be neutral.

VII Have both sides cf industry been consulted? Please indicate
  their opinions

  The representatives cf plant breeders as well of users have been
  consulted through their Community organisations and have
  expressed themselves in favour of the general concept of the
  •Droi30sed scheme.

```

**ISSN 0254-1475**

#### **COM (90) 347 final**

# **DOCUMENTS**

## **EN 03**

#### Catalogue number : CB-CO-90-407-EN-C ISBN 92-77-63524-X

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