Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

14 July 2021 ([\*](#Footnote*))

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

In Case T‑182/20,

**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 17 January 2020 (Case A 004/2016) concerning an application for a Community plant variety right for the Gala Perathoner 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) (‘CPVO Protocol TP/14/2’) 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 27 February 2009, 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 Gala Perathoner 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      According to the examination report prepared by GEVES on 16 April 2015, the candidate variety was not clearly distinct from the Simmons and Annaglo reference varieties, which were used to assess the distinctness of the candidate variety for the purposes of Article 6 and Article 7(1) of the basic regulation.

11      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 21 March 2016 (‘the decision of 21 March 2016’).

12      The applicant filed a notice of appeal against the decision of 21 March 2016. It claimed that, as the fruit of the candidate variety had not been harvested at the optimum time, this had distorted the comparative assessments of the ‘colour’ characteristic of the candidate variety. Moreover, the GEVES experts should have taken account of starch regression when assessing the ripening period of apples of the candidate variety. 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.

13      That appeal against the decision of 21 March 2016 was dismissed by the Board of Appeal of the CPVO as unfounded by decision of 17 January 2020 (‘the contested decision’).

14      In the contested decision, the Board of Appeal found, in essence, that the testing location contested by the applicant, namely Angers-Beaucouzé, is the site where the technical examination has to be carried out. It added that the group of experts of the CPVO’s Administrative Council, when deciding on the centralisation of testing, had designated GEVES as the sole testing site for that category of varieties in order to ensure equal treatment, legal certainty and transparency between candidate varieties. The Board of Appeal also found that the technical examination had been carried out in accordance with the applicable protocol and that starch regression is merely an additional method for determining the optimum time of ripeness.

**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, 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 alleged resulting infringement of the principle of equal treatment; (iii) infringement of the right to be heard; and (iv) an alleged failure to state reasons. Those pleas will be examined in turn below. Nevertheless, in so far as the applicant’s complaints 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 that the technical examination is vitiated by errors***

18      The first plea is divided into two parts. In the first part, the applicant argues, in essence, that if the fruit of the candidate variety had been harvested at the optimum time, that fruit would have displayed sufficient differences to permit the conclusion that the candidate variety is distinct from the reference varieties. If account had been taken of starch regression when assessing the ripening period of apples of the candidate variety, and if the CPVO had made that ripening dependent on that characteristic, the result obtained would not have been distorted. In the second part, the applicant argues, in essence, that differences in the rootstocks used for the candidate variety, as compared with the reference varieties, influenced the development of the apple trees and their fruit production.

19      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 Simmons and Annaglo reference varieties, 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).

*The alleged error in not using starch regression in determining the time for harvest*

20      The applicant argues that, if the fruit of the candidate variety had been harvested at the optimum time, that fruit would have displayed sufficient differences to permit the conclusion that the candidate variety is distinct from the reference varieties. The examiners determined ripeness on the basis of colour, that is to say, on the basis of subjective impressions determined by experience. However, according to the applicant, assessment of starch regression is a recognised scientific, and therefore objective, means of ascertaining whether the harvest occurred at optimum ripeness.

21      According to the applicant, the Board of Appeal admits that starch regression has a supportive function. Even if the experts determine the time for harvest according to changes in the ground colour by means of a visual assessment, a measurement of the starch regression may be used to confirm the visual assessment. Thus, starch regression may be taken into account where the examiner deems it appropriate. Excluding starch regression when assessing ripeness in each individual case is a manifest infringement of the principle of equal treatment in the light of the importance given by the CPVO to measuring starch regression in certain cases, in particular the case giving rise to the judgment of 5 February 2019, *Mema* v *CPVO (Braeburn 78 (11078))* (T‑177/16, EU:T:2019:57).

22      The CPVO disputes the applicant’s arguments.

23      The Court notes that CPVO Protocol TP/14/2 describes the technical procedures to be followed in order to comply with the basic regulation. The last paragraph of point III.5 of Protocol CPVO‑TP/14/2 provides as follows:

‘Observations on the fruit should be made … at the time of ripeness for eating.’

24      Point Ad 56 of CPVO Protocol TP/14/2 provides as follows:

‘Time for harvest

Time for harvest is the optimum time of picking to achieve fruit in peak condition for eating …’

25      Point Ad 57 of CPVO Protocol TP/14/2 provides as follows:

‘Time of eating maturity

Time of eating maturity is the period when a fruit has reached optimum colour, firmness, texture, aroma and flavour for consumption. Depending on the type of fruit, this period can occur directly after removal from the tree (e.g. early varieties) or after a period of storage or conditioning (e.g. later varieties).’

26      It should be noted that the parties are in agreement that the Examination Office followed the applicable protocol when determining the optimum time for harvesting the fruit and the optimum time of ripeness for eating.

27      Accordingly, the Board of Appeal did not make a manifest error of assessment in concluding that quantitative measuring data could not be used to prove distinctness, since they were not part of the applicable technical protocol, and in rejecting the applicant’s arguments that the technical examination should have been carried out using starch regression to determine the optimum time for harvest.

*The alleged error based on the use of different rootstocks for the candidate variety, as compared with those used for the reference varieties*

28      The applicant argues that the fact that the candidate variety was grafted onto different rootstocks from those used for the reference varieties compromised the proper assessment of the distinctness of the candidate variety, particularly as regards fruit colour and ripeness. According to the applicant, the CPVO’s assertion that the difference in the rootstocks used had no bearing on the assessment of the distinctness of the candidate variety has no scientific basis and is contrary to the applicable protocol.

29      The CPVO disputes the applicant’s arguments.

30      The Court notes that the applicable protocol makes no reference to rootstock clones and, therefore, the applicant’s assertion that the use of different rootstocks for the varieties in question is contrary to the applicable protocol is unfounded. In other words, as the CPVO rightly argues, the choice of rootstocks is in fact based on the expert knowledge of the examiners at the Examination Office. That choice had no bearing on the outcome of the technical examination.

31      Furthermore, it is apparent from the contested decision that, as regards the different rootstocks used, the Board of Appeal concluded that it ‘[was] not very probable’ that that difference had a substantial effect on the colour of apples. Even if that expression is not completely unambiguous, the fact remains that the applicant has provided no evidence or information permitting the choice of rootstock clone to be regarded as actually having had an effect on the colour of the fruit of the trees grafted onto it. Accordingly, the assertion that that practice compromised the proper assessment of the distinctness of the candidate variety must be rejected.

32      The Board of Appeal did not, therefore, make a manifest error of assessment in rejecting the applicant’s line of argument that the technical examination should have been carried out using the same rootstocks for all the varieties in question.

33      In the light of the foregoing, the first plea must be rejected.

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

34      The applicant argues that the considerable differences between the climate of continental Europe and that of Angers-Beaucouzé, 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.

35      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 a climatic environment that was entirely different from that determining plant growth and development in Angers-Beaucouzé.

36      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.

37      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.

38      The CPVO disputes the applicant’s arguments.

39      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.

40      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.

41      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, *Schniga* v *CPVO (Gala* *Schnico)*, T‑445/16, EU:T:2018:95, paragraph 49).

42      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.

43      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).

44      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).

45      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.

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

47      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 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.

48      For the sake of completeness, 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.

49      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***

50      The applicant argues, in essence, that the failure to provide scientific evidence supporting the assertion that the various rootstocks used for the varieties in question had no effect on the technical examination constitutes an infringement of its right to be heard.

51      The CPVO disputes that line of argument.

52      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).

53      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).

54      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).

55      However, it has already been held, in paragraph 30 above, that the contested decision was not based on sources of scientific literature, but rather on the applicable protocol, according to which the choice of rootstocks could legitimately be based on the expert knowledge of the examiners at the Examination Office. Therefore, the failure to provide scientific evidence supporting the assertion in question in no way infringed the applicant’s right to be heard.

56      In the light of the foregoing, the third plea must be rejected.

***The fourth plea, based on an alleged failure to state reasons***

57      The applicant argues that the obligation to state reasons was infringed by the fact that the Board of Appeal failed to take into account to the requisite legal standard the facts and scientific evidence which it had submitted, without, however, specifying which facts or scientific evidence the Board of Appeal allegedly failed to take into account.

58      The CPVO disputes that line of argument and contends that it is not sufficiently substantiated and should be rejected as inadmissible or, in any event, as unfounded.

59      Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure of the General Court, the application must contain the subject matter of the dispute, the pleas in law and arguments relied on and a summary of those pleas in law. Those details must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other information. In order to guarantee legal certainty and the sound administration of justice it is necessary, if an action is to be admissible, for the basic legal and factual particulars relied upon to be stated coherently and intelligibly in the application itself. The application must, accordingly, specify the nature of the grounds on which it is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see, to that effect, judgment of 25 March 2015, *Belgium* v *Commission*, T‑538/11, EU:T:2015:188, paragraphs 131 and 132 and the case-law cited).

60      It should be pointed out that the applicant has provided no further details as to the alleged infringement of the obligation to state reasons. Accordingly, it is not possible, having regard to the application, to ascertain to what extent the applicant’s ability to protect its interests was compromised by the Board of Appeal’s alleged failure to take account of such facts or scientific evidence, or even the nature of those facts or scientific evidence.

61      Furthermore, in so far as this plea concerns the first part of the first plea, relating to the alleged failure to use starch regression in determining the time for harvest, and specifically the reliance on the extract from the book *Postharvest Technology of Horticultural Crops* (3rd Edition, 2002), which was a contribution by Michael S. Reid, headed ‘Maturation and Maturity Indices’, emphasising the importance and reliability of measuring starch regression when determining the ripeness of apples, it is clear that the statement of reasons provided by the Board of Appeal in that regard satisfies the conditions laid down by case-law.

62      The obligation to state reasons laid down in Article 75 of the basic regulation has the same scope as that which derives from the second paragraph of Article 296 TFEU which requires that the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question, without it being necessary for that reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets those requirements must, nonetheless, be assessed with regard, not only to its wording, but also to its context and to all the legal rules governing the matter in question (see, by analogy, judgment of 28 June 2018, *EUIPO* v *Puma*, C‑564/16 P, EU:C:2018:509, paragraph 65 and the case-law cited).

63      It is clear from the applicant’s arguments and from the Court’s assessment in paragraphs 20 to 27 above that the statement of reasons for the contested decision in that regard provided the applicant with sufficient information to ascertain whether the measure was well founded or whether it was vitiated by a defect enabling its validity to be challenged before the Courts of the European Union and to enable those courts to review the legality of that measure.

64      In the light of all the foregoing considerations, the fourth plea must be rejected and, consequently, the action must be dismissed in its entirety.

**Costs**

65      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.

66      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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