Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Third Chamber)

28 February 2024 (
[\*1](#t-ECR_62022TJ0556_EN_01-E0001)
)

(Plant varieties – Grant of a Community plant variety right for the plant variety SK20 – Inadmissibility of the appeal before the Board of Appeal – No interest in bringing proceedings – Article 81(1) of Regulation (EC) No 2100/94)

In Case T‑556/22,

House Foods Group, Inc., established in Osaka (Japan), represented by G. Würtenberger, lawyer,

applicant,

v

Community Plant Variety Office (CPVO), represented by M. García-Moncó Fuente and O. Lamberti, acting as Agents,

defendant,

THE GENERAL COURT (Third Chamber),

composed of F. Schalin, President, I. Nõmm and G. Steinfatt (Rapporteur), Judges,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the written part of the procedure,

further to the hearing on 13 September 2023,

gives the following

Judgment

| 1 | By its action under Article 263 TFEU, the applicant, House Foods Group, Inc., seeks the annulment of the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 1 July 2022 (Case A 018/2021) (‘the contested decision’). |

Background to the dispute

| 2 | On 18 September 2017, the applicant applied to the CPVO for a Community plant variety right pursuant to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights ([OJ 1994 L 227, p. 1](./../../../legal-content/EN/AUTO/?uri=OJ:L:1994:227:TOC)). |

| 3 | The plant variety for which Community protection was sought is the onion variety SK20, belonging to the species Allium cepa. |

| 4 | In the technical questionnaire attached to the application for a Community plant variety right in question, the applicant – in response to question 07.02 ‘In addition to the information provided in sections 5 and 6, are there any additional characteristics which may help to distinguish the variety?’ – referred to the ‘low lachrymatory factor and pyruvic acid’ of the candidate variety. |

| 5 | The CPVO instructed Naktuinbouw (Inspection Service for Horticulture, Netherlands; ‘the Examination Office’) to perform the technical examination referred to in Article 55(1) of Regulation No 2100/94. |

| 6 | On 14 September 2020, the Examination Office produced the final report of the technical examination which stated that the variety satisfied the criteria of distinction, uniformity and stability (‘the DUS criteria’) and was accompanied by a proposal for a description of the candidate variety. The CPVO sent the final report to the applicant on 21 October 2020 and invited it to submit its observations in accordance with Article 57(2) of Regulation No 2100/94. |

| 7 | On 21 December 2020, the applicant submitted a request to the CPVO that the low lachrymatory factor and pyruvic acid which had been described in point 07.02 of the technical questionnaire be included in the description of the characteristics since that description determines the scope of protection of the variety and that low lachrymatory factor and pyruvic acid is an outstanding property of the candidate variety, being of high value for the cultivation and, in particular, use of that variety. |

| 8 | On 4 February 2021, the CPVO informed the applicant that, following an internal discussion, it could not agree to its request since the variety description should contain characteristics that belong to the corresponding technical protocol in force or, in some cases, additional characteristics, but only if they had been used in the technical examination to assess the distinctness between the candidate variety and the varieties of common knowledge, which was not the situation in the present case. |

| 9 | On 9 February 2021, the applicant responded to the CPVO, emphasising in particular the commercial value of its breeding efforts, and highlighted the reference to the additional characteristic in point 07.02 of the technical questionnaire. The applicant explained that, in its understanding, the fact that it had referred to that additional characteristic obliged the CPVO to take it into consideration and accordingly asked whether it had been considered before the start of the technical examination and, if not, why that characteristic had not been examined. |

| 10 | On 7 April 2021, the CPVO informed the applicant that the examination of the additional characteristic ‘low lachrymatory factor and pyruvic acid’ had not been considered and that the outcome of the examination had been conclusive on the basis of the standard characteristics. According to the CPVO, it was required to apply its technical protocol and, since that protocol did not include the characteristic requested by the applicant, the Examination Office had no reason to observe it during the usual examination of the DUS criteria. The CPVO stated that it does not examine any characteristic put forward by applicants if such an examination is not necessary for the purpose of its decision on the application. However, it added that that additional information is included in the file of the variety SK20 and that the CPVO sends the technical questionnaires to the European Patent Office, so that, if a third party were to file a patent application for the characteristic at issue, there would be a trace that there is prior art in the CPVO’s documents. |

| 11 | By decision of 3 May 2021, the CPVO granted the protection to the candidate variety (‘the grant decision’). The official variety description as established by the Examination Office was annexed to that decision. |

| 12 | On 1 July 2021, the applicant filed a notice of appeal against the grant decision, requesting that the low lachrymatory factor and pyruvic acid be included in the official variety description or, in the alternative, that a new technical examination be carried out to assess the candidate variety with regard to that characteristic. |

| 13 | On 16 September 2021, the Rectification Committee of the CPVO decided not to rectify the grant decision on the ground that the applicant’s appeal was inadmissible under Article 49(1) of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the CPVO ([OJ 2009 L 251, p. 3](./../../../legal-content/EN/AUTO/?uri=OJ:L:2009:251:TOC)). Since the grant decision was not rectified, the appeal was remitted to the Board of Appeal of the CPVO. |

| 14 | By the contested decision, the Board of Appeal of the CPVO dismissed the appeal as inadmissible under Article 49(1) of Regulation No 874/2009, read in conjunction with Article 81 of Regulation No 2100/94. The Board of Appeal found that the applicant had no interest in bringing proceedings since its appeal could not in any case remove the contested decision, given that it was not contesting the decision to grant a Community plant variety right for the variety SK20. Furthermore, the Board of Appeal noted, in essence, that the President of the CPVO was under no obligation to implement the procedure provided for in Article 23 of Regulation No 874/2009, which empowers him to insert additional characteristics and their expressions in respect of a variety, given that the distinctness of the candidate variety had already been established on the basis of the characteristics included in the relevant technical protocol and that it was sufficient for the variety to be clearly distinguishable by at least one characteristic for it to be protectable. There was therefore no need to take account of the additional characteristic put forward by the applicant to establish distinctness. |

Forms of order sought

| 15 | The applicant claims that the Court should:   | – | annul the contested decision; |  | – | order the CPVO to pay the costs. | |

| 16 | The CPVO contends that the Court should:   | – | dismiss the action; |  | – | order the applicant to pay the costs. | |

Law

| 17 | The applicant raises, in essence, two pleas in law, alleging, first, infringement of Article 81 of Regulation No 2100/94 and, secondly, infringement of Article 76 of that regulation. |

The first plea in law, alleging infringement of Article 81 of Regulation No 2100/94

| 18 | As it confirmed at the hearing, the applicant submits that it has an interest in bringing proceedings since the CPVO granted it a narrower protection than it requested by not including the low lachrymatory factor and pyruvic acid in the official variety description, with the result that its appeal should have been considered admissible. |

| 19 | The CPVO disputes the applicant’s arguments. |

| 20 | The Board of Appeal found, in paragraph 14 of the contested decision, that the applicant’s appeal was inadmissible on the basis of Article 49(1) of Regulation No 874/2009, read in conjunction with Article 81 of Regulation No 2100/94. It held that there was no interest in bringing proceedings if the appeal could not in any case remove the contested decision and that that applied to the present case since the applicant was contesting only part of the variety description concerning the list of its characteristics and not the grant decision itself. |

| 21 | Under Article 81(1) of Regulation No 2100/94, in the absence of procedural provisions in that regulation or in the provisions adopted pursuant to the same regulation, the CPVO is to apply the principles of procedural law which are generally recognised in the Member States. |

| 22 | It is not disputed that no provision of Regulation No 2100/94 or of Regulation No 874/2009 governs the issue of the inadmissibility of an appeal for lack of an interest in bringing proceedings. Accordingly, the Board of Appeal was right to refer to Article 81(1) of Regulation No 2100/94, which refers to the principles of procedural law which are generally recognised in the Member States. |

| 23 | As the parties acknowledged at the hearing, the condition of an interest in bringing proceedings is a principle of procedural law which is generally recognised in the Member States. |

| 24 | An interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings. An action for annulment brought by a natural or legal person is thus admissible only in so far as that person has an interest in the annulment of the contested measure. An applicant’s interest in bringing proceedings presupposes that the annulment of the contested act is capable by itself of having legal consequences and that the action is therefore liable, if successful, to procure an advantage for the party which brought it (see judgment of 12 November 2015, HSH Investment Holdings Coinvest-C and HSH Investment Holdings FSO v Commission, [T‑499/12](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2015%3A840&locale=en), [EU:T:2015:840](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2015%3A840), paragraph [24](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2015%3A840&anchor=#point24) and the case-law cited). |

| 25 | Accordingly, it is necessary to examine whether, in the present case, the amendment of the description of the protected variety accompanying the grant decision is capable of procuring an advantage for the applicant. That presupposes ascertaining whether, as it claims, the characteristics included in the official description of a protected variety determine the extent of the protection conferred on it. |

| 26 | Under Article 5(1) of Regulation No 2100/94, varieties of all botanical genera and species, including, inter alia, hybrids between genera or species, may form the object of Community plant variety rights. |

| 27 | According to Article 5(2) of Regulation No 2100/94, ‘variety’ is to be taken to mean a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be defined by the expression of the characteristics that results from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of the said characteristics, and considered as a unit with regard to its suitability for being propagated unchanged. |

| 28 | In accordance with Article 5(3) of Regulation No 2100/94, a plant grouping consists of entire plants or parts of plants as far as such parts are capable of producing entire plants, both referred to as ‘variety constituents’. |

| 29 | Furthermore, in accordance with Article 6 of Regulation No 2100/94, Community plant variety rights are to be granted to varieties that are distinct, uniform, stable and new. |

| 30 | Article 7(1) of Regulation No 2100/94 specifies that a variety is deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results 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. |

| 31 | Moreover, Article 8 of Regulation No 2100/94 states that a variety is deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics which are included in the examination for distinctness, as well as any others used for the variety description. |

| 32 | Lastly, under Article 9 of Regulation No 2100/94, a variety is deemed to be stable if the expression of the characteristics which are included in the examination for distinctness as well as any others used for the variety description, remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle. |

| 33 | First, as is therefore apparent from the first indent of Article 5(2) of Regulation No 2100/94, ‘variety’ is to be taken to mean a plant grouping which can, inter alia, be defined by the expression of all the characteristics which result from its genotype. |

| 34 | Secondly, it is apparent from Articles 6 to 9 of Regulation No 2100/94 that the expression of the characteristics which result from the variety’s genotype is used to determine whether the variety meets the DUS criteria and whether it is accordingly protectable. |

| 35 | Furthermore, the eleventh recital of Regulation No 2100/94 states that ‘for the grant of Community plant variety rights an assessment of important characteristics relating to the variety is necessary’ and that ‘these characteristics need not necessarily relate to their economic importance’. |

| 36 | It therefore follows from the foregoing considerations that the grant of Community plant variety rights to a candidate variety does not require an exhaustive assessment of all the characteristics which could result from that variety’s genotype, but only of those of particular importance to its protectability and, in particular, its distinctness. Accordingly, the technical examination, provided for in Article 55 of Regulation No 2100/94, is intended only to determine whether the candidate variety is sufficiently distinct, uniform and stable in relation to other varieties of common knowledge. That examination is not intended to assess all of the characteristics that can result from the candidate variety’s genotype or the use or commercial value of those characteristics since the grant of protection to a new variety is in no way conditional upon the presence of characteristics that have intrinsic commercial value. |

| 37 | The official variety description established by the Examination Office, which is simply a summary of the observations made during the technical examination, is therefore not intended to reflect the expression of all the characteristics that result from the candidate variety’s genotype and which characterise it, such as the low lachrymatory factor and pyruvic acid asserted by the applicant, but only certain specific characteristics which suffice to demonstrate the distinctness of the variety. |

| 38 | According to the second indent of Article 5(2) of Regulation No 2100/94, read in conjunction with Article 7(1) of that regulation, it is sufficient that the variety be clearly distinguishable by at least one of the characteristics that result from its genotype for it to be protectable. Accordingly, even if a candidate variety displays certain identical characteristics to a variety of common knowledge, it is sufficient that it be clearly distinguishable by one or more other characteristics for it to be protectable. Therefore, even if the additional characteristic asserted by the applicant had been included during the technical examination and were set out in the official description of the variety SK20, that would not have had any bearing on the protection conferred on that variety since a new variety, displaying the same low lachrymatory factor and pyruvic acid, would still be protectable so long as it displayed one or more other characteristics clearly distinguishing it from the applicant’s variety. |

| 39 | Furthermore, inserting the additional characteristic asserted by the applicant into the description cannot procure any advantage for it because of the fact that Community plant variety rights concern the variety itself (see Article 5(1) of Regulation No 2100/94), which is taken to mean a plant grouping (see Article 5(2) of Regulation No 2100/94), consisting of entire plants or parts of plants as far as such parts are capable of producing entire plants, both referred to as ‘variety constituents’ (see Article 5(3) of Regulation No 2100/94). Under Article 13(1) and (2) of Regulation No 2100/94, a Community plant variety right has the effect that the holder thereof is exclusively entitled to effect certain acts in respect of variety constituents, defined in Article 5(3) of that regulation, or harvested material of the protected variety. It follows that the protection concerns the plant material itself, as defined by all the characteristics that result from its genotype, whether or not they are included in the official variety description. |

| 40 | Accordingly, inserting the additional characteristic asserted by the applicant into the description would in no way amend the scope of the protection granted for the variety SK20. Therefore, the Board of Appeal was right to find that the applicant had no interest in bringing proceedings. |

| 41 | That conclusion cannot be called into question by the decisions of the Bundesgerichtshof (Federal Court of Justice, Germany) relied on by the applicant, which, according to the latter, recognise that the extent to which a protected variety is protected depends on the characteristics included in the official description thereof. The Community plant variety rights regime is an autonomous system with its own set of objectives and rules peculiar to it which applies independently of any national system; the legality of the decisions of the Board of Appeal of the CPVO must be determined solely on the basis of Regulation No 2100/94 and Regulation No 874/2009 as interpreted by the EU judicature (see, by analogy, judgement of 6 June 2018, Apcoa Parking Holdings v EUIPO, [C‑32/17 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A396&locale=en), not published, [EU:C:2018:396](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A396), paragraph [31](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A396&anchor=#point31) and the case-law cited). Accordingly, the EU judicature is not bound by a decision given in a Member State, even if such a decision was adopted under harmonised national legislation (see, by analogy, judgment of 27 February 2002, Streamserve v OHIM(STREAMSERVE), [T‑106/00](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2002%3A43&locale=en), [EU:T:2002:43](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2002%3A43), paragraph [47](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2002%3A43&anchor=#point47)). |

| 42 | Therefore, the first plea in law must be rejected as unfounded. |

The second plea in law, alleging infringement of Article 76 of Regulation No 2100/94

| 43 | In the context of the second plea, the applicant claims, in essence, that, under Article 76 of Regulation No 2100/94, the CPVO was required to consider and examine the entirety of its request that the technical examination and the official variety description include an important additional characteristic. |

| 44 | The CPVO disputes that argument. |

| 45 | Given that, first, it follows from paragraphs 21 to 42 above that the Board of Appeal was fully entitled to dismiss the applicant’s appeal as inadmissible and, secondly, it was only for the sake of completeness that the Board of Appeal found that the appeal was also unfounded on the ground, in essence, that, in the present case, the President of the CPVO was under no obligation to implement the procedure provided for in Article 23 of Regulation No 874/2009, which empowers him to insert additional characteristics and their expressions in respect of a variety, the second plea is ineffective. |

| 46 | It follows from all the foregoing considerations that the action must be dismissed in its entirety. |

Costs

| 47 | Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. |

| 48 | 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 (Third Chamber)  hereby: |

|  | | 1. | Dismisses the action; | |

|  | | 2. | Orders House Foods Group, Inc. to pay the costs. | |

|  |  |
| --- | --- |
|  | Schalin  Nõmm  Steinfatt  Delivered in open court in Luxembourg on 28 February 2024.  V. Di Bucci  Registrar  M. van der Woude  President |

---

(
[\*1](#c-ECR_62022TJ0556_EN_01-E0001)
) Language of the case: English.

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