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JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

14 July 2021 ([\*](#Footnote*))

(Plant varieties – Application for a Community plant variety right for the Stark Gugger apple variety – Technical examination – Testing location – Equal treatment – Rights of the defence – Obligation to state reasons)

In Case T‑181/20,

**Griba Baumschulgenossenschaft landwirtschaftliche Gesellschaft,** established in Terlano (Italy), represented by G. Würtenberger, lawyer,

applicant,

v

**Community Plant Variety Office (CPVO),** represented by M. Ekvad, O. Lamberti and F. Mattina, acting as Agents, and by A. von Mühlendahl and H. Hartwig, lawyers,

defendant,

ACTION brought against the decision of the Board of Appeal of the CPVO of 24 January 2020 (Case A 008/2018) concerning an application for a Community plant variety right for the Stark Gugger apple variety,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, U. Öberg (Rapporteur) and R. Mastroianni, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 31 March 2020,

having regard to the response lodged at the Court Registry on 30 September 2020,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

**Judgment**

**Legal context**

1        Under Article 6 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (‘the basic regulation’), Community plant variety rights are to be granted by the Community Plant Variety Office (CPVO) for varieties that are distinct, uniform, stable and new.

2        Pursuant to Article 7(1) of the basic regulation, a variety is deemed to be distinct if it is clearly distinguishable, by reference to the expression of the characteristics that result from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application for the granting of a Community plant variety right.

3        The question whether the criteria of distinctness, uniformity and stability are fulfilled in a particular case is to be examined in a technical examination conducted in accordance with Articles 55 and 56 of the basic regulation (‘the technical examination’).

4        Article 55(1) of the basic regulation provides as follows:

‘1. Where the [CPVO] has not discovered any impediment to the grant of a Community plant variety right on the basis of the examination [of the procedural and substantive conditions laid down by] Articles 53 and 54, it shall arrange for the technical examination relating to [fulfilment of the criteria of distinctness, uniformity and stability] to be carried out by the competent office or offices in at least one of the Member States entrusted with responsibility for the technical examination of varieties of the species concerned by the Administrative Council [of the CPVO], hereafter referred to as the “Examination Office or Offices”.’

5        Under Article 56 of the basic regulation, technical examinations are to be conducted in accordance with test guidelines issued by the Administrative Council and any instructions given by the CPVO. Those test guidelines describe, inter alia, the plant material required for the technical examination, how the tests are to be performed, the methods to be applied, the observations to be made, the grouping of the varieties included in the test and the table of characteristics to be examined. In the technical examination, plants of the variety concerned are to be cultivated alongside those of the varieties which the CPVO and the designated Examination Office deem to be those which the candidate variety most closely resembles, according to the description of the candidate variety in the technical description forming part of the application for the granting of a Community plant variety right.

6        Article 57(1) to (3) of the basic regulation provides as follows:

‘1. The Examination Office shall, at the request of the [CPVO] or if it deems the results of the technical examination to be adequate to evaluate the variety, send the [CPVO] an examination report, and, where it considers that the conditions laid down in Articles 7 to 9 are complied with, a description of the variety.

2. The [CPVO] shall communicate the results of the technical examinations and the variety description to the applicant and shall give him an opportunity to comment thereon.

3. Where the [CPVO] does not consider the examination report to constitute a sufficient basis for decision, it may provide of its own motion, after consultation of the applicant, or on request of the applicant for complementary examination. For the purposes of assessment of the results, any complementary examination carried out until a decision taken pursuant to Articles 61 and 62 becomes final shall be considered to be part of the examination referred to in Article 56(1).’

7        Point I of Protocol TP/14/2 final of the CPVO of 14 March 2006 for distinctness, uniformity and stability tests (Apple) provides as follows:

‘The protocol describes the technical procedures to be followed in order to meet [the basic regulation]. The technical procedures have been agreed by the Administrative Council and are based on general [International Union for the Protection of New Varieties of Plants] Document TG/1/3 and [International Union for the Protection of New Varieties of Plants] Guideline TG/14/9 dated 6 April 2005 for the conduct of tests for Distinctness, Uniformity and Stability. This protocol applies to fruit varieties of *Malus domestica Borkh*.’

**Background to the dispute**

8        On 4 August 2011, the applicant, Griba Baumschulgenossenschaft landwirtschaftliche Gesellschaft, filed an application for a Community plant variety right with the CPVO, pursuant to the basic regulation. The plant variety for which the right was sought is the Stark Gugger variety belonging to the fruit of the *Malus domestica Borkh*  species (‘the candidate variety’).

9        The Administrative Council of the CPVO entrusted the French Variety and Seed Study and Control Group (GEVES), an examination site of the French National Institute for Agricultural Research (INRA) in Angers-Beaucouzé (France), with responsibility for carrying out the technical examination of the candidate variety, in accordance with Article 55(1) of the basic regulation.

10      In January 2012, following a request from the CPVO, the applicant submitted trees of the candidate variety and the comparison variety Stark Delicious to GEVES.

11      At the beginning of 2013, due to a mislabelling of the Stark Delicious variety, the CPVO requested, in an interim report, that additional trees of the candidate variety and Stark Delicious variety be submitted, as well as trees of the Jeromine apple variety.

12      During an on-site visit in August 2014, a representative of the applicant informed the GEVES technical examiner that the pruning method applied to the candidate variety was not appropriate and notified him of the resulting consequences, in particular as regards the ripening and colour of the varieties.

13      According to the 2015, 2016 and 2017 interim reports relating to the 2014, 2015 and 2016 observation years, no significant differences were observed between the candidate variety and the Jeromine reference variety.

14      According to the examination report prepared by GEVES on 4 April 2017, the candidate variety was not clearly distinct from the Jeromine reference variety, which was used to assess the distinctness of the candidate variety for the purposes of Article 6 and Article 7(1) of the basic regulation.

15      That report was sent to the applicant. After receiving the applicant’s comments, the CPVO rejected the application for the granting of a Community plant variety right by decision of 2 July 2018 (‘the decision of 2 July 2018’).

16      The applicant filed a notice of appeal against the decision of 2 July 2018. It claimed that, as the Examination Office had used a different pruning method from that applied in the creation process of the candidate variety, the candidate variety was not able to develop its fruit characteristics, which are different from those of the Jeromine variety. Moreover, according to the applicant, the fact that the trees of the candidate variety and those of the comparison variety were different in age led to inaccurate test results. Lastly, testing the candidate variety in a maritime climate whereas it had been developed in a continental climate meant that the technical examination led to the development of relevant characteristics that did not reflect those encoded in its genetic structure.

17      That appeal against the decision of 2 July 2018 was dismissed by the Board of Appeal of the CPVO as unfounded by decision of 24 January 2020 (‘the contested decision’).

18      In the contested decision, the Board of Appeal found, in essence, that neither the location of the site chosen nor the pruning method applied prevented the candidate variety from being distinguishable from the commonly known Jeromine variety. It added that the genetic difference between the two varieties is very small and generally not measurable by DNA fingerprinting. The Board of Appeal also found that differences in fruit colour in mutants from the same initial parent variety are difficult to distinguish and that sometimes those mutants are even identical in terms of their phenotypes. Furthermore, it noted that the testing location contested by the applicant, namely Angers-Beaucouzé, is the site where the technical examination has to be carried out. Lastly, the Board of Appeal found that the pruning method applied by GEVES enables a good expression of the genotype and is in accordance with the applicable protocol.

**Forms of order sought**

19      The applicant claims that the Court should:

–        annul the contested decision;

–        order the CPVO to pay the costs.

20      The CPVO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

**Law**

21      The applicant raises, in essence, four pleas in support of its action, relating to (i) the allegation that the technical examination is vitiated by errors; (ii) the determination of the testing location and the resulting infringement of the principle of equal treatment; (iii) infringement of the right to be heard; and (iv) an alleged failure to state reasons. Furthermore, in so far as the applicant’s complaints raised in the fourth plea, alleging that the statement of reasons for the contested decision was inadequate, relate to considerations that are relevant to some of the other pleas, it is appropriate to examine them in the context of each of the pleas concerned.

***The first plea,** **alleging** **errors** **in the technical examination***

22      The first plea is divided into two parts. According to the first part, the Board of Appeal erred in concluding that the genetic differences between the candidate variety and the Jeromine variety, as varieties derived from the Red Delicious initial variety, are very small and generally not even measurable by DNA fingerprinting, since that assessment is not supported by scientific evidence; nor is any explanation given as to the conclusions to be drawn from it in respect of the varieties in question. The second part concerns the pruning method applied.

23      As a preliminary point, it should be borne in mind that the General Court, which has jurisdiction only within the limits set by Article 73(2) of the basic regulation, is not required to carry out a complete review in order to determine whether or not the candidate variety lacked distinctness, as compared with the Jeromine reference variety, for the purposes of Article 7(1) of the basic regulation. In the light of the scientific and technical complexity of that condition, compliance with which must be verified by means of a technical examination which, as is clear from Article 55 of the basic regulation, is to be entrusted by the CPVO to one of the competent national offices, the General Court is entitled to limit itself to a review of manifest errors of assessment (see, to that effect, judgment of 15 April 2010, *Schräder* v *CPVO*, C‑38/09 P, EU:C:2010:196, paragraph 77).

*Genetic proximity between the varieties in question and the alleged failure to state reasons in that regard*

24      The applicant argues that the Board of Appeal’s assertion that the genetic proximity between the varieties in question is very strong is not supported by any corresponding examinations carried out by the CPVO or any other scientific source. There is no proof that that genetic proximity results in a lack of distinctness in all cases. According to the applicant, this constitutes a failure by the CPVO to fulfil its obligation under Article 75 of the basic regulation to substantiate its findings and observations. In addition, the Board of Appeal provided no explanation of the conclusions to be drawn as regards the varieties in question.

25      The CPVO disputes the applicant’s arguments.

26      The Court considers, as the CPVO has rightly argued, that this part of the first plea could be understood as a challenge to the use of the Jeromine variety as reference variety or as a substantive challenge as regards the relevance of the references made to genetic proximity in the contested decision. In addition, it could be understood as relating to a failure to state reasons in the contested decision in that regard.

27      Concerning the hypothesis that this part of the first plea could be understood as a challenge to the use of the Jeromine variety as reference variety, it should be pointed out that the applicant did not challenge such use of the Jeromine variety either during the technical examination procedure or during the proceedings before the Board of Appeal.

28      It should be borne in mind that the purpose of actions brought before the General Court is to secure review of the legality of decisions of the Boards of Appeal of the CPVO for the purposes of Article 73 of Regulation No 2100/94 and that Article 188 of the Rules of Procedure of the General Court provides that the parties’ pleadings may not change the subject matter of the proceedings before the Board of Appeal. Accordingly, claims made by the parties which change the subject matter of the dispute must be rejected as inadmissible by virtue of Article 73(2) of the basic regulation, in conjunction with Article 188 of the Rules of Procedure (see judgment of 23 February 2018, *Schniga* v *CPVO (Gala Schnico)*, T‑445/16, EU:T:2018:95, paragraph 46 (not published and the case-law cited)).

29      Accordingly, it must be concluded that, in so far as this part of the first plea concerns the use of the Jeromine variety as reference variety, it is inadmissible.

30      As to the other two hypotheses referred to in paragraph 26 above, which will be considered together, it should be borne in mind, first of all, that the obligation to state reasons laid down in the first sentence of Article 75 of the basic regulation has the same scope as that laid down in Article 296 TFEU and has the dual purpose of enabling interested parties to know the reasons for the measure taken so as to be able to defend their rights and of enabling the Courts of the European Union to exercise their jurisdiction to review the legality of the decision (see, to that effect and by analogy, judgments of 10 May 2012, *Rubinstein and L’Oréal* v *OHIM*, C‑100/11 P, EU:C:2012:285, paragraph 111, and of 27 March 2014, *Intesa Sanpaolo* v *OHIM – equinet Bank (EQUITER)*, T‑47/12, EU:T:2014:159, paragraph 24).

31      The obligation to state reasons may be discharged without it being necessary to respond expressly and exhaustively to all the arguments put forward by an applicant (see, to that effect and by analogy, judgment of 10 May 2012, *Rubinstein and L’Oréal* v *OHIM*, C‑100/11 P, EU:C:2012:285, paragraph 112), provided that the CPVO sets out the facts and legal considerations having decisive importance in the context of the decision (judgment of 23 February 2018, *Gala Schnico*, T‑445/16, EU:T:2018:95, paragraph 28 (not published); see also, to that effect and by analogy, judgment of 9 December 2010, *Tresplain Investments* v *OHIM – Hoo Hing (Golden Elephant Brand)*, T‑303/08, EU:T:2010:505, paragraph 46).

32      In the present case, the applicant complains that the Board of Appeal did not explain the conclusions to be drawn from its assertion relating to the genetic proximity between the varieties in question. Nevertheless, as the CPVO has rightly argued, in paragraph 43 of the contested decision, the assertion relating to genetic proximity does not support a finding of the presence or absence of distinctness under Article 7 of the basic regulation following a technical examination and is not a relevant factor to be taken into account for the purpose of that finding, but refers to considerations concerning the concept of ‘essentially derived variety’ under Article 13 of that regulation.

33      The presence or absence of distinctness is the result of a strictly controlled examination by the Examination Office based on the phenotypic expression of the variety, whereas genetic proximity is not taken into account for that purpose. In other words, the assertion relating to genetic proximity has no bearing, in the present case, on the assessment of the distinctness of the apple varieties in question for the purposes of Article 7 of the basic regulation. Consequently, the applicant’s line of argument, which may be understood as a challenge to the relevance of the references to genetic proximity or as relating to a failure to state reasons, is irrelevant and must be rejected as ineffective.

34      It follows that the first part of the first plea, which concerns genetic proximity, must be rejected.

*The pruning method applied and the alleged failure to state reasons in that regard*

35      In the second part of the first plea, the applicant argues, in essence, that the results of the technical examination would have been different if the Examination Office had used a different method for pruning fruit-bearing trees, known as ‘spindle pruning’, rather than the method known as ‘centrifugal pruning’.

36      The applicant claims that it submitted scientific evidence to the CPVO proving that, in comparison with the centrifugal pruning applied by the CPVO, spindle pruning enables better exposure of apples to sunlight and therefore enables a larger crop to be produced in a smaller space. During a visit to the cultivation fields, the applicant remarked that the trees planted in 2013 had been over-pruned and therefore had no basal branches, which are, however, essential in order for the tree to produce a homogenous crop so as to maximise the harvest.

37      The applicant states that the tall spindle pruning method is characterised by the removal of old branches in order to allow young branches to grow, leading to branching in a pyramidal form with large branches in the lower parts of the tree and smaller branches in the higher sections. Due to this pyramidal form, the ‘surface’ of the tree and thus the exposure of the apples to the sun are greater than if the centrifugal pruning method evidently applied by the CPVO is used.

38      Furthermore, according to the applicant, the CPVO is required, as part of its obligation to examine the facts of its own motion, inter alia to consider carefully the objective suggestions and recommendations made by the applicant during the examination procedure. The claim made in the contested decision that ‘the pruning method applied by GEVES provides a good expression of the genotype, while the commercial spindle method provides the best yield results’ is not a statement of grounds as required by Article 75 of the basic regulation, but an unsubstantiated observation, a pure allegation that not only is entirely at odds with the observations outlined in the scientific literature, but also is obviously the CPVO’s subjective opinion not supported by the reasons and evidence which had brought the CPVO and its Board of Appeal to that conclusion.

39      The CPVO disputes the applicant’s arguments.

40      The Court notes in that regard that the technical examination was carried out in accordance with the applicable protocol, which provides that the candidate variety and the reference variety or varieties must be examined under the same conditions, but does not specify the pruning methods to be applied during the technical examinations. Thus, as the CPVO has rightly stated, that protocol does not prescribe any particular method for pruning apple trees.

41      The Board of Appeal did not, therefore, make a manifest error of assessment in rejecting the applicant’s arguments that the technical examination should have been carried out using a different pruning method from that applied in the present case.

42      As regards the alleged failure to state reasons in that regard, it is apparent from paragraphs 26 and 27 of the contested decision that the GEVES representatives, at the hearing before the Board of Appeal, explained that the pruning method applied in the present case was the same as that used in all orchards at the Angers-Beaucouzé testing location, which guaranteed consistency of examination conditions. The fact that the commercial spindle pruning method might provide better yield results was therefore, according to those explanations, irrelevant.

43      Furthermore, the Board of Appeal concluded, in paragraph 62 of the contested decision, that the pruning method applied by GEVES enables a good expression of the genotype, while the commercial spindle method provides the best yield results, and that, on those grounds and in the absence of sufficient information from the applicant, the CPVO had no reason or obligation to apply a different pruning method.

44      It follows from the foregoing that the statement of reasons provided by the Board of Appeal enabled the applicant to know the reasons for the pruning method applied so as to be able to defend its rights and enabled the Courts of the European Union to exercise their jurisdiction to review the legality of the contested decision in relation to that issue, as required by the case-law cited in paragraph 30 above.

45      The second part of the first plea, which concerns the pruning method applied by GEVES, including the complaint alleging a failure to state reasons in that regard, must therefore be rejected as unfounded, as must, consequently, the first plea in its entirety.

***The second plea, concerning the determination of the testing location and the alleged** **resulting** **infringement of t****he principle of equal treatment***

46      The applicant argues that the considerable climatic differences between the climate of continental Europe and that of Angers, which is influenced by the Atlantic Ocean, posed considerable difficulties in carrying out the technical examination. Technical examinations carried out under different climatic conditions have an influence on the way the genetic structure of a variety is expressed in its phenotype. Consequently, according to the applicant, it was logical to require that the candidate variety be examined under the same climatic conditions as those in which this new variety – and its characteristics – had been produced.

47      According to the applicant, although the CPVO has known for years that Angers-Beaucouzé is not the most appropriate area to test varieties of certain mutation groups of the Gala and Red Delicious varieties, it did not apply to the Administrative Council for the designation of Examination Offices in other geographical areas as alternative testing locations, in particular in respect of varieties which came from an climatic environment that was entirely different from that determining plant growth and development in Angers-Beaucouzé.

48      The applicant submits that giving it the formal possibility to indicate in the technical questionnaire a different testing location is not an option that allows the CPVO to organise the technical examination at a location other than Angers-Beaucouzé. The CPVO would be authorised to do so only if it were given that option by the Administrative Council.

49      As regards the plea alleging infringement of the principle of equal treatment, the applicant argues, in essence, that that principle obliges the CPVO to take into account all the circumstances which may lead to a distortion of the results of the examinations, in particular if those circumstances are to the detriment of the applicant. This requires that candidate varieties be tested in a climatic environment comparable to that in which they were created. Testing all varieties in the same climate, which is significantly different from that of other climate zones, favours breeders which create new varieties under climatic conditions which determine the development of phenotypic characteristics specific to the test area, to the detriment of other breeders.

50      The CPVO disputes the applicant’s arguments.

51      It should be pointed out that, in accordance with Article 55(1) of the basic regulation and Article 13(1) of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of the basic regulation as regards proceedings before the CPVO (OJ 2009 L 251, p. 3), the Administrative Council of the CPVO is empowered to entrust one or more competent offices in a Member State with responsibility for the technical examination of varieties of the species concerned.

52      It is apparent from Announcement No 2/2004 of 15 February 2004, published in the *Official Gazette of the Community Plant Variety Office* (‘Announcement No 2/2004’), that the Administrative Council of the CPVO decided to entrust exclusively to GEVES the technical examination of fruit mutation varieties of the *Malus domestica Borkh* species belonging, like the candidate variety, to the mutation group of the Red Delicious variety.

53      The Court has previously held that due consideration has been given to the climatic conditions normally encountered on the GEVES examination site for the purposes of its designation as an examination site for the mutation groups in question (see, to that effect, judgment of 23 February 2018, *Gala Schnico*, T‑445/16, EU:T:2018:95, paragraph 49).

54      Furthermore, it is common ground that the CPVO is not competent to carry out the technical examination at a location other than that determined by the Administrative Council, which in the present case is the GEVES site. It follows that, if the applicant had requested in its application to the CPVO that the technical examination be carried out at another examination site, such a request could not have been granted, since GEVES is the only site authorised for that purpose by the Administrative Council of the CPVO.

55      According to case-law, the unambiguous and preliminary designation of the Examination Office charged with the technical examination of all species or varieties belonging to the same mutation group, such as that resulting from Announcement No 2/2004, is in keeping with the general scheme for Community plant variety rights established by the basic regulation, as well as with the principles of equal treatment, legal certainty and transparency which underpin that regulation (judgment of 23 February 2018, *Gala Schnico*, T‑445/16, EU:T:2018:95, paragraph 52).

56      That general scheme and those principles require that all candidate varieties belonging to the same plant variety mutation group of a given species be assessed under the same conditions (judgment of 23 February 2018, *Gala Schnico*, T‑445/16, EU:T:2018:95, paragraph 53).

57      It follows from those considerations that, in the present case, the CPVO was right to designate GEVES as the sole technical Examination Office for the plant variety in question. Accordingly, the applicant’s arguments that the technical examination should have been carried out elsewhere must be rejected.

58      The first part of the second plea, which concerns the determination of the testing location, must therefore be rejected.

59      The same conclusion applies, for the same reasons, to the second part of the second plea. In order for the designation of GEVES as the sole technical Examination Office for the plant variety in question to constitute infringement of the principle of equal treatment, the CPVO must have had the possibility of designating another testing location, which is not the case.

60      Furthermore, as regards the applicant’s complaint that the CPVO infringed Article 57(3) of the basic regulation by failing to consider its request that the candidate variety be examined in a more appropriate climatic environment than that which determines plant growth in Angers-Beaucouzé, it must be held, as the CPVO rightly stated, that that article is limited to ‘complementary examination’ and cannot be invoked before the Board of Appeal as a measure of inquiry in order to request that the technical examination be carried out at an entirely different location merely because the applicant takes the view that, for climate reasons, the competent Examination Office is unsuitable.

61      Accordingly, the second plea, which concerns the determination of the testing location and the alleged resulting infringement of the principle of equal treatment, must be rejected.

***The third plea,** **alleging****infringement of the right to be heard***

62      The applicant argues, in essence, that the failure to provide scientific evidence supporting the assertion that the genetic differences between the candidate variety and the Jeromine variety, as varieties derived from the Red Delicious initial variety, are very small constitutes an infringement of its right to be heard and of the principle of transparency.

63      The CPVO disputes that line of argument.

64      The right to be heard is now affirmed not only in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him adversely is taken (see judgment of 3 July 2014, *Kamino International Logistics and Datema Hellmann Worldwide Logistics*, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 29 and the case-law cited).

65      In accordance with that principle, which applies where the authorities are minded to adopt a measure which will adversely affect an individual, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision (see judgment of 3 July 2014, *Kamino International Logistics and Datema Hellmann Worldwide Logistics*, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 30 and the case-law cited).

66      Lastly, it should be borne in mind that, according to settled case-law, infringement of the principle of respect for the right to be heard results in the annulment of the decision taken at the end of a procedure only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgment of 4 April 2019, *OZ* v *EIB*, C‑558/17 P, EU:C:2019:289, paragraph 76 and the case-law cited).

67      However, it has already been held, in paragraph 33 above, that arguments relating to genetic proximity have no bearing on the assessment of the question whether the candidate variety displays distinctness, which is the only legal question that is decisive in the present case for the purpose of granting a Community plant variety right. In other words, neither the CPVO in its decision of 2 July 2018 nor the Board of Appeal in the contested decision based their conclusion that the candidate variety lacks distinctness, as compared with the Jeromine variety, on genetic proximity.

68      In view of the foregoing, the third plea must be rejected and, consequently, the action must be dismissed in its entirety.

**Costs**

69      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

70      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the CPVO.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders Griba Baumschulgenossenschaft landwirtschaftliche Gesellschaft to pay the costs.**

|  |  |  |
| --- | --- | --- |
| Spielmann | Öberg | Mastroianni |

Delivered in open court in Luxembourg on 14 July 2021.

|  |  |  |
| --- | --- | --- |
| E. Coulon |  | S. Papasavvas |

|  |  |  |
| --- | --- | --- |
| Registrar |  | President |

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[\*](#Footref*)      Language of the case: English.

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