Source: EURLEX
Language: en
Format: md

1994R2100 — EN — 05.06.2003 — 002.001 — 1

**This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents**

**►B** **COUNCIL REGULATION (EC) No 2100/94**

**of 27 July 1994**

**on Community plant variety rights**

(OJ L 227, 1.9.1994, p. 1)

Amended by:

Official Journal

No page date

**►M1** Council Regulation (EC) No 2506/95 of 25 October 1995 L 258 3 28.10.1995

**►M2** Council Regulation (EC) No 807/2003 of 14 April 2003 L 122 36 16.5.2003

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- **B**

**COUNCIL REGULATION (EC) No 2100/94**

**of 27 July 1994**

**on Community plant variety rights**

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and
in particular Article 235 thereof,

Having regard to the proposal from the Commission ( [1] ),

Having regard to the opinion of the European Parliament ( [2] ),

Having regard to the opinion of the European Parliament ( [2] ),

Whereas plant varieties pose specific problems as regards the industrial
property régime which may be applicable;

Whereas industrial property regimes for plant varieties have not been
harmonized at Community level and therefore continue to be regulated
by the legislation of the Member States, the content of which is not
uniform;

Whereas in such circumstances it is appropriate to create a Community
regime which, although co-existing with national regimes, allows for
the grant of industrial property rights valid throughout the Community;

Whereas it is appropriate that the implementation and application of
this Community regime should not be carried out by the authorities of
the Member States but by a Community Office with legal personality,
the ‘Community Plan Variety Office’;

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 genera and species should be protectable;

Whereas protectable varieties must comply with internationally recognized requirements, i.e. distinctness, uniformity, stability and novelty,
and also be designated by 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 this definition is not intended to alter definitions which may
have been established in the field of intellectual property rights, especially the patent field, nor to interfere with or exclude from application
laws governing the protectability of products, including plants and
plant material, or processes under such other industrial property rights;

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;

( [1] ) OJ No C 244, 28. 9. 1990, p. 1 and OJ No C 113, 23. 4. 1993, p. 7.
( [2] ) OJ No C 305, 23. 11. 1992, p. 55 and OJ No C 67, 16. 3. 1992, p. 148.

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Whereas the system must also define the term ‘holder’ used in this
Regulation; whereas that term ‘holder’ without further specification is
used in this Regulation including in its Article 29 (5), it is intended to
be within the meaning of Article 13 (1) thereof;

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 where the new variety, although distinct, is
essentially derived from the initial variety, a certain form of dependency from the holder of the latter one should be created;

Whereas, the exercise of Community plant variety rights must be
subjected to restrictions laid down in provisions adopted in the public
interest;

Whereas this includes safeguarding agricultural production; whereas
that purpose requires an authorization for farmers to use the product
of the harvest for propagation under certain conditions;

Whereas it must be ensured that the conditions are laid down at
Community level;

Whereas compulsory licensing should also be provided for under
certain circumstances in the public interest, which may include the
need to supply the market with material offering specified features, or
to maintain the incentive for continued breeding of improved varieties;

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

Whereas the Community plant variety right should in principle have a
life of at least 25 years and in the case of vine and tree species, at least
30 years; whereas other grounds for termination must be specified;

Whereas a Community plant variety right is an object of the holder's
property and its role in relation to the non-harmonized legal provisions
of the 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;

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;

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- **B**

Whereas the duties and powers of the Community Plant Variety 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 other 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 the Office should be advised and supervised by the aforementioned Administrative Council, composed of representatives of Member
States and the Commission;

Whereas the Treaty does not provide, for the adoption of this Regulation, powers other than those of Article 235;

Whereas this Regulation takes into account existing international
conventions such as the International Convention for the Protection of
New Varieties of Plants (UPOV Convention), the Convention of the
Grant of European Patents (European Patent Convention) or the Agreement on trade-related aspects of intellectual property rights, including
trade in counterfeit goods; whereas it consequently implements the
ban on patenting plant varieties only to the extent that the European
Patent Convention so requires, i.e. to plant varieties as such;

Whereas this Regulation should be re-examined for amendment as
necessary in the light of future developments in the aforementioned
Conventions,

HAS ADOPTED THIS REGULATION:

PART ONE

**GENERAL PROVISIONS**

_Article 1_

**Community plant variety rights**

A system of Community plant variety rights is hereby established as
the sole and exclusive form of Community industrial property rights
for plant varieties.

_Article 2_

**Uniform effect of Community plant variety rights**

Community plant variety rights shall have uniform effect within the
territory of the Community and may not be granted, transferred or
terminated in respect of the abovementioned 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, subject to the
provisions of Article 92 (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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- **B**

PART TWO

**SUBSTANTIVE LAW**

CHAPTER I

**CONDITIONS GOVERNING THE GRANT OF COMMUNITY**

**PLANT VARIETY RIGHTS**

_Article 5_

**Object of Community plant variety rights**

1. Varieties of all botanical genera and species, including, _inter alia_,
hybrids between genera or species, may form the object of Community
plant variety rights.

2. For the purpose of this Regulation, ‘variety’ shall 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.

3. 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
hereinafter as ‘variety constituents’.

4. The expression of the characteristics referred to in paragraph 2,
first indent, may be either invariable or variable between variety constituents of the same kind provided that also the level of variation results
from the genotype or combination of genotypes.

_Article 6_

**Protectable varieties**

Community plant variety rights shall be granted for varieties that are:

(a) distinct;

(b) uniform;

(c) stable; and

(d) new.

Moreover, the variety must be designated by a denomination in accordance with the provisions of Article 63.

_Article 7_

**Distinctness**

1. A variety shall be 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 determined pursuant to Article 51.

2. The existence of another variety shall in particular be deemed to
be a matter of common knowledge if on the date of application determined pursuant to Article 51:

(a) it was the object of a plant variety right or entered in an official
register of plant varieties, in the Community or any State, or in
any intergovernmental organization with relevant competence;

(b) an application for the granting of a plant variety right in its respect
or for its entering in such an official register was filed, provided
the application has led to the granting or entering in the meantime.

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- **B**

The implementing rules pursuant to Article 114 may specify further
cases as examples which shall be deemed to be a matter of common
knowledge.

_Article 8_

**Uniformity**

A variety shall be 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.

_Article 9_

**Stability**

A variety shall be 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.

_Article 10_

**Novelty**

1. A variety shall be deemed to be new if, at the date of application
determined pursuant to Article 51, variety constituents or harvested
material of the variety have not been sold or otherwise disposed of to
others, by or with the consent of the breeder within the meaning of
Article 11, for purposes of exploitation of the variety:

(a) earlier than one year before the abovementioned date, within the
territory of the Community;

(b) earlier than four years or, in the case of trees or of vines, earlier
than six years before the said date, outside the territory of the
Community.

2. The disposal of variety constituents to an official body for statutory purposes, or to others on the basis of a contractual or other legal
relationship solely for production, reproduction, multiplication, conditioning or storage, shall not be deemed to be a disposal to others
within the meaning of paragraph 1, provided that the breeder preserves
the exclusive right of disposal of these and other variety constituents,
and no further disposal is made. However, such disposal of variety
constituents shall be deemed to be a disposal in terms of paragraph 1
if these constituents are repeatedly used in the production of a hybrid
variety and if there is disposal of variety constituents or harvested
material of the hybrid variety.

Likewise, the disposal of variety constituents by one company or firm
within the meaning of the second paragraph of Article 58 of the Treaty
to another of such companies or firms shall not be deemed to be a
disposal to others, if one of them belongs entirely to the other or if
both belong entirely to a third such company or firm, provided no
further disposal is made. This provision shall not apply in respect of
cooperative societies.

3. The disposal of variety constituents or harvested material of the
variety, which have been produced from plants grown for the purposes
specified in Article 15 (b) and (c) and which are not used for further
reproduction or multiplication, shall not be deemed to be exploitation
of the variety, unless reference is made to the variety for purposes of
that disposal.

Likewise, no account shall be taken of any disposal to others, if it
either was due to, or in consequence of the fact that breeder had
displayed the variety at an official or officially recognized exhibition
within the meaning of the Convention on International Exhibitions, or

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at an exhibition in a Member State which was officially recognized as
equivalent by that Member State.

CHAPTER II

**PERSONS ENTITLED**

_Article 11_

**Entitlement to Community plant variety rights**

1. The person who bred, or discovered and developed the variety, or
his successor in title, both — the person and his successor — referred
to hereinafter as ‘the breeder’, shall be entitled to the Community plant
variety right.

2. If two or more persons bred, or discovered and developed the
variety jointly, entitlement shall be vested jointly in them or their
respective successors in title. This provision shall also apply to two or
more persons in cases where one or more of them discovered the
variety and the other or the others developed it.

3. Entitlement shall also be invested jointly in the breeder and any
other person or persons, if the breeder and the other person or persons
have agreed to joint entitlement by written declaration.

4. If the breeder 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 and developed.

5. Where entitlement to a Community plant variety right is vested
jointly in two or more persons pursuant to paragraphs 2 to 4, one or
more of them may empower the others by written declaration to such
effect to claim entitlement thereto.

_Article 12_

**Entitlement to file an application for a Community plant variety**
**right**

1. An application for 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 a member of
the Union for the Protection of New Varieties of Plants within the
meaning of Article 1 (xi) of the Act of 1991 of the International
Convention for the Protection of New Varieties of Plants, or are
domiciled or have their seat or an establishment in such a State;

(b) nationals of any other State who do not meet the requirements laid
down in (a) in respect of domicile, seat or establishment, in so far
as the Commission, after obtaining the opinion of the Administrative Council referred to in Article 36, 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 be filed jointly by two or more such persons.

CHAPTER III

**EFFECTS OF COMMUNITY PLANT VARIETY RIGHTS**

_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

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- **B**

referred to as ‘the holder’, shall be entitled to effect the acts set out in
paragraph 2.

2. Without prejudice to the provisions of Articles 15 and 16, the
following acts in respect of variety constituents, or harvested material
of the protected variety, both referred to hereinafter as ‘material’, shall
require the authorization of the holder:

(a) production or reproduction (multiplication);

(b) conditioning for the purpose of propagation;

(c) offering for sale;

(d) selling or other marketing;

(e) exporting from the Community;

(f) importing to the Community;

(g) stocking for any of the purposes mentioned in (a) to (f).

The holder may make his authorization subject to conditions and
limitations.

3. The provisions of paragraph 2 shall apply in respect of harvested
material only if this was obtained through the unauthorized use of
variety constituents of the protected variety, and unless the holder has
had reasonable opportunity to exercise his right in relation to the said
variety constituents.

4. In the implementing rules pursuant to Article 114, it may be
provided that in specific cases the provisions of paragraph 2 of this
Article shall also apply in respect of products obtained directly from
material of the protected variety. They may apply only if such products
were obtained through the unauthorized use of material of the protected
variety, and unless the holder has had reasonable opportunity to exercise his right in relation to the said material. To the extent that the
provisions of paragraph 2 apply to products directly obtained, they
shall also be considered to be ‘material’.

5. The provisions of paragraphs 1 to 4 shall also apply in relation to:

(a) varieties which are essentially derived from the variety in respect
of which the Community plant variety right has been granted,
where this variety is not itself an essentially derived variety;

(b) varieties which are not distinct in accordance with the provisions of
Article 7 from the protected variety; and

(c) varieties whose production requires the repeated use of the
protected variety.

6. For the purposes of paragraph 5 (a), a variety shall be deemed to
be essentially derived from another variety, referred to hereinafter as
‘the initial variety’ when:

(a) it is predominantly derived from the initial variety, or from a
variety that is itself predominantly derived from the initial variety;

(b) it is distinct in accordance with the provisions of Article 7 from the
initial variety; and

(c) except for the differences which result from the act of derivation, it
conforms essentially to the initial variety in the expression of the
characteristics that results from the genotype or combination of
genotypes of the initial variety.

7. The implementing rules pursuant to Article 114 may specify
possible acts of derivation which come at least under the provisions of
paragraph 6.

8. Without prejudice to Article 14 and 29, 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, the protection of industrial or
commercial property, or the safeguarding of competition, of trade or of
agricultural production.

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_Article 14_

**Derogation from Community plant variety right**

1. Notwithstanding Article 13 (2), and for the purposes of safeguarding agricultural production, farmers are authorized to use for
propagating purposes in the field, on their own holding the product of
the harvest which they have obtained by planting, on their own
holding, propagating material of a variety other than a hybrid or
synthetic variety, which is covered by a Community plant variety right.

2. The provisions of paragraph 1 shall only apply to agricultural
plant species of:

(a) Fodder plants:

Cicer arietinum L. — Chickpea milkvetch

Lupinus luteus L. — Yellow lupin

Medicago sativa L. — Lucerne

Pisum sativum L. (partim) — Field pea

Trifolium alexandrinum L. — Berseem/Egyptian clover

Trifolium resupinatum L. — Persian clover

Vicia faba — Field bean

Vicia sativa L. — Common vetch

and, in the case of Portugal, Lolium multiflorum lam — Italian

rye-grass

(b) Cereals:

Avena sativa — Oats

Hordeum vulgare L. — Barley

Oryza sativa L. — Rice

Phalaris canariensis L. — Canary grass

Secale cereale L. — Rye

X Triticosecale Wittm. — Triticale

Triticium aestivum L. emend. Fiori et Paol. — Wheat

Triticum durum Desf. — Durum wheat

Triticum spelta L. — Spelt wheat

(c) Potatoes:

Solanum tuberosum — Potatoes

(d) Oil and fibre plants:

Brassica napus L. (partim) — Swede rape

Brassica rapa L. (partim) — Turnip rape

Linum usitatissimum — linseed with the exclusion of flax.

3. Conditions to give effect to the derogation provided for in paragraph 1 and to safeguard the legitimate interests of the breeder and of
the farmer, shall be established, before the entry into force of this
Regulation, in implementing rules pursuant to Article 114, on the basis
of the following criteria:

— there shall be no quantitative restriction of the level of the farmer's
holding to the extent necessary for the requirements of the holding,
— the product of the harvest may be processed for planting, either by
the farmer himself or through services supplied to him, without
prejudice to certain restrictions which Member States may establish
regarding the organization of the processing of the said product of
the harvest, in particular in order to ensure identity of the product
entered for processing with that resulting from processing,
— small farmers shall not be required to pay any remuneration to the
holder; small farmers shall be considered to be:

— in the case of those of the plant species referred to in paragraph
2 of this Article to which Council Regulation (EEC) No 1765/

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92 of 30 June 1992 establishing a support system for producers
of certain arable crops ( [1] ) applies, farmers who do not grow
plants on an area bigger than the area which would be needed
to produce 92 tonnes of cereals; for the calculation of the area,
Article 8 (2) of the aforesaid Regulation shall apply,

— in the case of other plant species referred to in paragraph 2 of
this Article, farmers who meet comparable appropriate criteria,

— other farmers shall be required to pay an equitable remuneration to
the holder, which shall be sensibly lower than the amount charged
for the licensed production of propagating material of the same
variety in the same area; the actual level of this equitable remuneration may be subject to variation over time, taking into account the
extent to which use will be made of the derogation provided for in
paragraph 1 in respect of the variety concerned,

— monitoring compliance with the provisions of this Article or the
provisions adopted pursuant to this Article shall be a matter of
exclusive responsibility of holders; in organizing that monitoring,
they may not provide for assistance from official bodies,

— relevant information shall be provided to the holders on their
request, by farmers and by suppliers of processing services; relevant
information may equally be provided by official bodies involved in
the monitoring of agricultural production, if such information has
been obtained through ordinary performance of their tasks, without
additional burden or costs. These provisions are without prejudice,
in respect of personal data, to Community and national legislation
on the protection of individuals with regard to the processing and
free movement of personal data.

_Article 15_

**Limitation of the effects of Community plant variety rights**

Limitation of the effects of Community plant variety rights

(a) acts done privately and for non-commercial purposes;

(b) acts done for experimental purposes;

(c) acts done for the purpose of breeding, or discovering and developing other varieties;

(d) acts referred to in Article 13 (2) to (4), in respect of such other
varieties, except where the provisions of Article 13 (5) apply, or
where the other variety or the material of this variety comes under
the protection of a property right which does not contain a comparable provision; and

(e) acts whose prohibition would violate the provisions laid down in
Articles 13 (8), 14 or 29.

_Article 16_

**Exhaustion of Community plant variety rights**

The Community plant variety right shall not extend to acts concerning
any material of the protected variety, or of a variety covered by the
provisions of Article 13 (5), which has been disposed of to others by
the holder or with his consent, in any part of the Community, or any
material derived from the said material, unless such acts:

(a) involve further propagation of the variety in question, except where
such propagation was intended when the material was disposed of;

or

(b) involve an export of variety constituents into a third country which
does not protect varieties of the plant genus or species to which the
variety belongs, except where the exported materials is for final
consumption purposes.

( [1] ) OJ No L 181, 1. 7. 1992, p. 12. Regulation as last amended by Regulation
(EEC) No 1552/93 (OJ No L 154, 25. 6. 1993, p. 19).

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_Article 17_

**Use of variety denominations**

1. Any person who, within the territory of the Community, offers or
disposes of to others for commercial purposes variety constituents of a
protected variety, or a variety covered by the provisions of Article 13
(5), must use the variety denomination designated pursuant to Article
63; where it is used in writing, the variety denomination shall be
readily distinguishable and clearly legible. If a trade mark, trade name
or similar indication is associated with the designated denomination,
this denomination must be easily recognizable as such.

2. Any person effecting such acts in respect of any other material of
the variety, must inform of that denomination in accordance with 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.

3. Paragraphs 1 and 2 shall apply even after the termination of the
Community plant variety right.

_Article 18_

**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 hamper the free
use of that denomination in connection with the variety, even after the
termination of the Community plant variety right.

2. A third party may use a right granted in respect of a designation
that is identical wih the variety denomination to hamper the free use of
that denomination only if that right was granted before the variety
denomination was designated pursuant to Article 63.

3. Where a variety is protected by a Community plant variety right
or, in a Member State or in a Member of the International Union for
the Protection of New Varieties of Plants by a national property right,
neither its designated denomination or any designation which might be
confused with it can be used, within the territory of the Community, in
connection with another variety of the same botanical species or a
species regarded as related pursuant to the publication made in accordance with Article 63 (5), or for material of such variety.

CHAPTER IV

**DURATION AND TERMINATION OF COMMUNITY PLANT**

**VARIETY RIGHTS**

_Article 19_

**Duration of Community plant variety rights**

1. The term of the Community plant variety right shall run until the
end of the 25th calendar year or, in the case of varieties of vine and
tree species, until the end of the 30th calendar year, following the
year of grant.

2. The Council, acting by qualified majority on proposal from the
Commission, may, in respect of specific genera or species, provide for
an extension of these terms up to a further five years.

3. A Community plant variety right shall lapse before the expiry of
the terms laid down in paragraph 1 or pursuant to paragraph 2, 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.

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_Article 20_

**Nullity of Community plant variety rights**

1. The Office shall declare the Community plant variety right null
and void if it is established:

(a) that the conditions laid down in Articles 7 or 10 were not complied
with at the time of the Community plant variety right; or

(b) that where the grant of the Community plant variety right has been
essentially based upon information and documents furnished by the
applicant, the conditions laid down in Articles 8 and 9 were not
complied with at the time of the grant of the right; or

(c) that the right has been granted to a person who is not entitled to it,
unless it is transferred to the person who is so entitled.

2. Where the Community plant variety right is declared null and
void, it shall be deemed not to have had, as from the outset, the effects
specified in this Regulation.

_Article 21_

**Cancellation of Community plant variety rights**

1. The Office shall cancel the Community plant variety right with
effect in futurum if it is established that the conditions laid down in
Article 8 or 9 are no longer complied with. If it is established 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.

2. The Office may cancel a Community plant variety right with
effect in futurum if the holder, after being requested to do so, and
within a time limit specified by the Office:

(a) has not fulfilled an obligation pursuant to Article 64 (3); or

(b) in the case referred to in Article 66, does not propose another
suitable variety denomination; or

(c) fails to pay such fees as may be payable to keep the Community
plant variety right in force; or

(d) either as the initial holder or as a successor in title as a result of a
transfer pursuant to Article 23, no longer satisfies the conditions
laid down in Articles 12 and 82.

CHAPTER V

**COMMUNITY PLANT VARIETY RIGHTS AS OBJECTS OF**

**PROPERTY**

_Article 22_

**Assimilation with national laws**

1. Save where otherwise provided in Articles 23 to 29, 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 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
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 Member State referred to in paragraph 1 shall be the Member State
in which the seat of the Office is located.

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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
shall be applicable.

_Article 23_

**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 and 82. 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 or of any other acts terminating court proceedings. Otherwise it shall be void.

3. Save as otherwise provided in Article 100, 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 24_

**Levy of execution**

A Community plant variety right may be levied in execution and be the
subject of provisional, including protective, measures within the
meaning of Article 24 of 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 ‘Lugano
Convention’.

_Article 25_

**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 26_

**The application for a Community plant variety right as an object**
**of property**

Articles 22 to 25 shall apply to applications for Community plant
variety rights. Concerning such applications, the references made in
those Articles to the Register of Community Plant Variety Rights shall
be regarded as references to the Register of Application for Community
Plant Variety Rights.

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_Article 27_

**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 conditions or limitations attached to his
exploitation right pursuant to paragraph 1.

_Article 28_

**Joint holdership**

Articles 22 to 27 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.

_Article 29_

**Compulsory exploitation right**

1. Compulsory exploitation rights shall be granted to one or more
persons by the Office, on application by that person or those persons,
but only on grounds of public interest and after consulting the Administrative Council referred to in Article 36.

2. On application by a Member State, by the Commission or by an
organization set up at Community level and registered by the Commission, a compulsory exploitation right may be granted, either to a
category of persons satisfying specific requirements, or to anyone in
one or more Member States or throughout the Community. It may be
granted only on grounds of public interest and with the approval of
the Administrative Council.

3. The Office shall, when granting the compulsory exploitation
right, stipulate the type of acts covered and specify the reasonable
conditions pertaining thereto as well as the specific requirements
referred to in paragraph 2. The reasonable conditions shall take into
account the interests of any holder of plant variety rights who would
be affected by the grant of the compulsory exploitation right. The
reasonable conditions may include a possible time limitation, the
payment of an appropriate royalty as equitable remuneration to the
holder, and may impose certain obligations on the holder, the fulfilment of which are necessary to make use of the compulsory
exploitation right.

4. On the expiry of each one-year period after the grant of the
compulsory exploitation right and within the aforementioned possible
time limitation, any of the parties to proceedings 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 change.

5. On application, the compulsory exploitation right shall be granted
to the holder in respect of an essentially derived variety if the criteria
set out in paragraph 1 are met. The reasonable conditions referred to in
paragraph 3 shall include the payment of an appropriate royalty as
equitable remuneration to the holder of the initial variety.

6. The implementing rules pursuant to Article 114 may specify
certain cases as examples of public interest referred to in paragraph 1
and moreover lay down details for the implementation of the provisions
of the above paragraphs.

7. Compulsory exploitation rights may not be granted by Member
States in respect of a Community plant variety right.

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- **B**

PART THREE

**THE COMMUNITY PLANT VARIETY OFFICE**

CHAPTER I

**GENERAL PROVISIONS**

_Article 30_

**Legal status, sub-offices**

1. The Office shall be a body of the Community. It shall have legal
personality.

2. 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.

3. The Office shall be represented by its President.

4. With the consent of the Administrative Council referred to in
Article 36, 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 31_

**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, without prejudice to the application of Article 47 to the
members of the Board of Appeal.

2. Without prejudice to Article 43, 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
respect of its own staff.

_Article 32_

**Privileges and immunities**

The Protocol on the Privileges and Immunities of the European
Communities shall apply to the Office.

_Article 33_

**Liability**

1. The contractual liability of the Office shall be governed by the
law applicable to the contract in question.

2. 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.

3. In the case of 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 by its
servants in the performance of their duties.

4. The Court of Justice shall have jurisdiction in disputes relating to
compensation for the damage referred to in paragraph 3.

5. The personal liability of its servants towards the Office shall be
governed by the provisions laid down in the Staff Regulations or
Conditions of Employment applicable to them.

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_Article 34_

**Languages**

1. The provisions laid down in Regulation No 1 of 15 April 1958
determining the languages to be used in the European Economic
Community ( [1] ), shall apply regarding the Office.

2. 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.

3. Parties to proceedings before the Office as specified in the implementing rules pursuant to Article 114, shall be entitled, to conduct
written and oral proceedings in any official language of the European
Communities with translation and, in the case of hearings, simultaneous interpretation, at least into any other of the official languages of
the European Communities chosen by any other party to proceedings.
The exercise of these rights does not imply specific charges for the
parties to proceedings.

4. The translation services required for the functioning of the Office
are in principle provided by the Translation Centre of the Bodies of the
Union.

_Article 35_

**Decisions of the Office**

1. Decisions of the Office shall, provided they do not have to be
made by the Board of Appeal pursuant to Article 72, be taken by or
under the authority of the President of the Office.

2. Subject to paragraph 1, decisions pursuant to Articles 20, 21, 29,
59, 61, 62, 63, 66 or 100 (2) shall be taken by a Committee of three
members of the Office's staff. The qualifications of the members of
such Committee, the powers of individual members in the preparatory
phase of the decisions, the voting conditions and the role of the President in respect of such Committee shall be determined in the
implementing rules pursuant to Article 114. Otherwise, the members
of such Committee, in making their decisions, shall not be bound by
any instructions.

3. Decisions of the President, other than those specified in paragraph
2, if not taken by the President, may be taken by a member of the
Office's staff to whom the power to do so has been delegated pursuant
to Article 42 (2) (h).

CHAPTER II

**THE ADMINISTRATIVE COUNCIL**

_Article 36_

**Creation and powers**

1. An Administrative Council is hereby set up, attached to the
Office. In addition to the powers assigned to the Administrative
Council by other provisions of this Regulation, or by the provisions
referred to in Articles 113 and 114, it shall have the powers in relation
to the Office defined below:

(a) It shall advise on matters for which the Office is responsible, or
issue general guidelines in this respect.

(b) It shall examine the management report of the President, and shall
moreover monitor the Office's activities, on the basis of that examination and any other information obtained.

( [1] ) OJ No 17, 6. 10. 1958, p. 385/58. Regulation as last amended by the 1985
Act of Accession.

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(c) It shall, on a proposal from the Office, either determine the number
of Committees referred to in Article 35, the work allocation and the
duration of their respective function, or issue general guidelines in
this respect.

(d) It may establish rules on working methods of the Office.

(e) It may issue test guidelines pursuant to Article 56 (2).

2. Moreover the Administrative Council:

— may deliver opinions to, and require information from the Office or
the Commission, where it considers that this is necessary,

— may forward to the Commission, with or without amendments, the
drafts placed before it pursuant to Article 42 (2) (g), or its own
draft amendments to this Regulation, to the provisions referred to
in Articles 113 and 114 or to any other rules relating to Community
plant variety rights,

— shall be consulted pursuant to Articles 113 (4) and 114 (2),

— shall carry out its functions relating the Office's budget pursuant to
Articles 109, 111 and 112.

_Article 37_

**Composition**

1. The Administrative Council shall be composed of one representative of each Member State and one representative of the Commission
and their alternates.

2. The members of the Administrative Council may, subject to the
provisions of its rules of procedure, be assisted by advisers or experts.

_Article 38_

**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 terms of office of the Chairman or Deputy Chairman shall
expire when their respective membership of the Administrative Council
ceases. Without prejudice to this provision, the duration of the terms of
office of the Chairman or Deputy Chairman shall be three years, unless
another Chairman or Deputy Chairman have been elected before the
end of this period. The terms of office shall be renewable.

_Article 39_

**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
have the right to vote.

3. The Administrative Council shall hold an ordinary meeting once a
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. It shall adopt rules of procedure, and may set up, in accordance
with these rules, Committees placed under its authority.

5. The Administrative Council may invite observers to attend its
meetings.

6. The secretariat for the Administrative Council shall be provided
by the Office.

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_Article 40_

**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.

_Article 41_

**Voting**

1. The Administrative Council shall take its decisions, other than
those referred to in paragraph 2, by a simple majority of the representatives of the Member States.

2. The majority of three quarters of the representatives of the
Member States shall be required for the decisions which the Administrative Council is empowered to take under Articles 12 (1) (b), 29, 36
(1) (a), (b), (d) and (e), 43, 47, 109 (3) and 112.

3. Each Member State shall have one vote.

4. The decisions of the Administrative Council shall have no
binding force within the meaning of Article 189 of the Treaty.

CHAPTER III

**MANAGEMENT OF THE OFFICE**

_Article 42_

**Functions and powers of the President**

1. The Office shall be managed by the President.

2. To this end, the President shall have, in particular, the following
functions and powers:

(a) The President shall take all necessary steps, including the adoption
of internal administrative instructions and the publications of
notices, to ensure the functioning of the Office in accordance with
the provisions of this Regulation, with those referred to in Articles
113 and 114, or with the rules established, or guidelines issued, by
the Administrative Council pursuant to Article 36 (1).

(b) He shall submit a management report to the Commission and
Administrative Council each year.

(c) He shall exercise in respect of the staff the powers laid down in
Article 31 (2).

(d) He shall submit proposals as referred to in Article 36 (1) (c) and 47
(2).

(e) He shall draw up estimates of the revenue and expenditure of the
Office pursuant to Article 109 (1), and shall implement the budget
pursuant to Article 110.

(f) He shall supply information as required by the Administrative
Council pursuant to Article 36 (2), first indent.

(g) He may place before the Administrative Council draft amendments
to this Regulation, to the provisions referred to in Articles 113 and
114 or to any other rules relating to Community plant variety
rights.

(h) He may delegate his powers to other members of the Office's staff,
and subject to the provisions referred to in Articles 113 and 114.

3. The President shall be assisted by one or more Vice-Presidents. If
the President is absent or indisposed, the Vice-President or one of the
Vice-Presidents shall take his place in accordance with the procedure
laid down in the rules established, or the guidelines issued, by the
Administrative Council pursuant to Article 36 (1).

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_Article 43_

**Appointment of senior officials**

1. The President of the Office shall be appointed by the Council
from a list of candidates which shall be proposed by the Commission
after obtaining the opinion of the Administrative Council. Power to
dismiss the President shall lie with the Council, acting on a proposal
from the Commission after obtaining the opinion of the Administrative
Council.

2. The term of office of the President shall not exceed five years.
This term of office shall be renewable.

3. The Vice-President or Vice-Presidents of the Office shall be
appointed or dismissed as in paragraphs 1 and 2, after consultation of
the President.

4. The Council shall exercise disciplinary authority over the officials
referred to in paragraphs 1 and 3.

_Article 44_

**Control of legality**

1. The Commission shall control the legality of those acts of the
President in respect of which Community law does not provide for
any control on legality by another body, and of the acts of the Administrative Council relating to the Office's budget.

2. The Commission shall require that any unlawful act referred to in
paragraph 1 be altered or annulled.

3. Member States, any member of the Administrative Council or any
other persons directly and personally involved may refer to the
Commission any act referred to in paragraph 1, whether express or
implied, to examine the legality of that act. Referral shall be made to
the Commission within two months of the day on which the party
concerned became aware of the act in question. The Commission shall
take and communicate a decision within two months.

CHAPTER IV

**THE BOARDS OF APPEAL**

_Article 45_

**Establishment and powers**

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

2. The Board or Boards of Appeal shall be responsible for deciding
on appeals from the decisions referred to in Article 67.

3. The Board or Boards of Appeal shall be convened as necessary.
The number of Boards of Appeal and the work allocation shall be
determined in the implementing rules pursuant to Article 114.

_Article 46_

**Composition of the Boards of Appeal**

1. A Board of Appeal shall consist of a Chairman and two other
members.

2. The Chairman shall select for each case the other members and
their respective alternates from the list of qualified members established pursuant to Article 47 (2).

3. Where the Board of Appeal considers that the nature of the
appeal so requires, it may call up to two further members from the
aforesaid list for that case.

4. The qualifications required for the members of each Board of
Appeal, the powers of individual members in the preparatory phase of

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the decisions and the voting conditions shall be determined in the
implementing rules pursuant to Article 114.

_Article 47_

**Independence of the members of the Boards of Appeal**

1. The Chairmen of the Boards of Appeal and their respective alternates shall be appointed by the Council from a list of candidates for
each chairman and each alternate which shall be proposed by the
Commission after obtaining the opinion of the Administrative Council.
The term of office shall be five years. It shall be renewable.

2. The other members of the Boards of Appeal shall be those
selected pursuant to Article 46 (2), from a list of qualified members
established on a proposal from the Office, for a term of five years, by
the Administrative Council. The list shall be established for a term of
five years. This shall be renewable for whole or part of the list.

3. The members of the Board of Appeal shall be independent. In
making their decisions they shall not be bound by any instructions.

4. The members of the Boards of Appeal may not be members of
the Committees referred to in Article 35 nor perform any other duties
in the Office. The function of the members of the Boards of Appeal
may be a part-time function.

5. The members of the Boards of Appeal may not be removed from
office nor from the list respectively, during the respective term, unless
there are serious grounds for such removal and the Court of Justice of
the European Communities, on application by the Commission after
obtaining the opinion of the Administrative Council takes a decision
to this effect.

_Article 48_

**Exclusion and objection**

1. Members of the Boards of Appeal may not take part in any
appeal proceedings if they have any personal interest therein, or if
they have previously been involved as representatives of one of the
parties to proceedings, or if they participated in 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 appeal proceedings, he shall inform the Board of
Appeal accordingly.

3. Members of the Boards of Appeal may be objected to by any
party to the appeal proceedings 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
to the appeal proceedings has taken a procedural step. No objection
may be based on the nationality of members.

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 who withdraws or has been objected to shall be replaced in
the Board of Appeal by his alternate.

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- **B**

PART FOUR

**PROCEEDINGS BEFORE THE OFFICE**

CHAPTER I

**APPLICATIONS**

_Article 49_

**Filing of applications**

1. An application for a Community plant variety right shall be filed
at the choice of the applicant:

(a) at the Office directly; or

(b) at one of the sub-offices or national agencies, established or
entrusted, pursuant to Article 30 (4), subject to the applicant
forwarding an information on this filing to the Office directly
within two weeks after filing.

Details on the manner in which the information referred to in (b) above
must be forwarded, may be laid down in the implementing rules
pursuant to Article 114. The omission of forwarding information on
an application to the Office pursuant to (b) above, does not affect the
validity of the application if the application has reached the Office
within one month after filing at the sub-office or national agency.

2. Where the application is filed at one of the national agencies
referred to in paragraph 1 (b), the national agency shall take all steps
to forward the application to the Office within two weeks after filing.
National agencies may charge the applicant a fee which shall not
exceed the administrative costs of receiving and forwarding the application.

_Article 50_

**Conditions governing applications**

1. The application for a Community plant variety right must contain
at least the following:

(a) a request for the grant of a Community plant variety right;

(b) identification of the botanical taxon;

(c) information identifying the applicant or, where appropriate, the
joint applicants;

(d) the name of the breeder and an assurance that, to the best of the
applicants knowledge, no further persons have been involved in
the breeding, or discovery and development, of the variety; if the
applicant is not the breeder, or not the only breeder, he shall
provide the relevant documentary evidence as to how the entitlement to the Community plant variety right came into his
possession;

(e) a provisional designation for the variety;

(f) a technical description of the variety;

(g) the geographic origin of the variety;

(h) the credentials of any procedural representative;

(i) details of any previous commercialization of the variety;

(j) details of any other application made in respect of the variety.

2. Details of the conditions referred to in paragraph 1, including the
provision of further information, may be laid down in the implementing rules pursuant to Article 114.

3. An application shall propose a variety denomination which may
accompany the application.

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_Article 51_

**Date of application**

The date of application for a Community plant variety right shall be the
date on which a valid application was received by the Office pursuant
to Article 49 (1) (a) or by a sub-office or national agency pursuant to
Article 49 (1) (b), provided it complies with Article 50 (1) and subject
to payment of the fees due pursuant to Article 83 within a time limit
specified by the Office.

_Article 52_

**The right of priority**

1. The right of priority of an application shall be determined by the
date of receipt of the application. Where applications have the same
date of application, the priorities thereof shall be determined according
to the order in which they were received, if this can be established.
Otherwise they shall have the same priority.

2. If the applicant or his predecessor in title has already applied for
a property right for the variety in a Member State or in a Member of
the International Union for the Protection of New Varieties of Plants,
and the date of application is within 12 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 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 the Community plant variety right for the purposes of Articles 7,
10 and 11.

4. Paragraphs 2 and 3 shall also apply in respect of earlier applications that were filed in another Member State, provided the conditions
set out in Article 12 (1) (b), second sentence, is met regarding this
State on the date of application for the Community plant variety right.

5. Any claim for a right of priority earlier than that provided for in
paragraph 2 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.

CHAPTER II

**EXAMINATION**

_Article 53_

**Formal examination of application**

1. The Office shall examine whether:

(a) the application has effectively been filed pursuant to Article 49;

(b) the application complies with the conditions laid down in Article
50 and the conditions laid down in the implementing rules pursuant
to that Article;

(c) where appropriate, a claim for priority complies with the provision
laid down in Article 52 (2), (4) and (5); and

(d) the fees due pursuant to Article 83 have been paid within a time
limit specified by the Office.

2. If the application, although complying with the conditions
referred to in Article 51, does not comply with other conditions laid
down in Article 50, the Office shall give the applicant an opportunity
to correct any deficiencies that may have been identified.

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3. If the application does not comply with the conditions referred to
in Article 51, the Office shall inform the applicant thereof, or, where
this is not possible, publish the information pursuant to Article 89.

_Article 54_

**Substantive examination**

1. The Office shall examine whether the variety may be the object
of a Community plant variety right pursuant to Article 5, whether the
variety is new pursuant to Article 10, whether the applicant is entitled
to file an application pursuant to Article 12 and whether the conditions
laid down in Article 82 are complied with. The Office shall also
examine whether the proposed variety denomination is suitable
pursuant to Article 63. For such purposes, it may avail itself of the
services of other bodies.

2. The first applicant shall be deemed to be entitled to the Community plant variety right pursuant to Article 11. This shall not apply if,
before a decision on the application is taken, the Office is aware, or it
is shown by a final judgment delivered with regard to a claim for entitlement pursuant to Article 98 (4), that entitlement is not or is not
solely vested in the first applicant. Where the identity of the sole or
other person entitled has been determined, the person or persons may
enter the proceedings as applicant or applicants.

_Article 55_

**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 53 and 54, 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
technical examination of varieties of the species concerned by the
Administrative Council, hereafter referred to as the ‘Examination
Office or Offices’.

2. Where no Examination Office 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 same purposes. For the purpose of the provisions of this
Chapter, such agencies or sub-offices shall be considered as Examination Offices. They may avail themselves of facilities made available by
the applicant.

3. The Office shall forward to the Examination Offices copies of the
application as required under the implementing rules pursuant to
Article 114.

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 and reference
samples are to be submitted.

5. Where the applicant makes a claim for priority pursuant to Article
52 (2) or (4), he shall submit the necessary material and any further
documents required within two years of the date of application
pursuant to Article 51. 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 within a specified time
limit.

_Article 56_

**The conduct of technical examinations**

1. Unless a different manner of technical examination relating to
compliance with the conditions laid down in Articles 7 to 9 has been
arranged, the Examination Offices shall, for the purposes of the tech

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nical examination, grow the variety or undertake any other investigations required.

2. The conduct of any technical examinations shall be in accordance
with test guidelines issued by the Administrative Council and any
instructions given by the Office.

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 have begun on the basis of an
application for 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 of Article 55 (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 have begun on
the basis of an application for a national property right, provided the
necessary material and any further documents required were submitted
at that date.

6. The Administrative Council may determine that the technical
examination for varieties of vine and tree species may begin at a later
date.

_Article 57_

**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 laid down in Articles 7 to 9 are complied
with, a description of the variety.

2. The Office 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 Office 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).

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 in so far as this is approved by the
Office.

_Article 58_

**Costs of technical examinations**

The Office shall pay the Examination Offices a fee in accordance with
the implementing rules pursuant to Article 114.

_Article 59_

**Objections to grant of right**

1. Any person may lodge with the Office a written objection to the
grant of a Community plant variety right.

2. Objectors shall be party to the proceedings for grant of the
Community plant variety right in addition to the applicant. Without
prejudice to Article 88, objectors shall have access to the documents,

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- **B**

including the results of the technical examination and the variety
description as referred to in Article 57 (2).

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

(a) the conditions laid down in Articles 7 to 11 are not complied with;

(b) there is an impediment under Article 63 (3) or (4) to a proposed
variety denomination.

4. Objections may be lodged:

(a) at any time after the application and prior to a decision pursuant to
Articles 61 or 62, in the case of paragraph 3 (a) hereof;

(b) within three months of the publication of the proposed variety
denomination pursuant to Article 89, in the case of objections
under paragraph 3 (b) hereof.

5. The decisions on objections may be taken together with the decisions pursuant to Articles 61, 62 or 63.

_Article 60_

**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 a Community plant variety right and if the objector files an
application for a 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.

CHAPTER III

**DECISIONS**

_Article 61_

**Refusal**

1. The Office shall refuse applications for 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 53
which he was given an opportunity to correct within the time limit
notified to him;

(b) has not complied with a rule or request pursuant to Article 55 (4)
or (5) within the time limit laid down, unless the Office has
consented to non-submission; or

(c) has not proposed a variety denomination which is suitable pursuant
to Article 63.

2. The Office shall also refuse applications for a Community plant
variety right if:

(a) it establishes that the conditions it is required to verify pursuant to
Article 54 have not been fulfilled; or

(b) it reaches the opinion on the basis of the examination reports
pursuant to Article 57, that the conditions laid down in Articles 7,
8 and 9 have not been fulfilled.

_Article 62_

**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 Articles 59 and 61, it shall grant the Community plant
variety right. The decision shall include an official description of the
variety.

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- **B**

_Article 63_

**Variety denomination**

1 Where a Community plant variety right is granted, the Office shall
approve, for the variety in question, the variety denomination proposed
by the applicant pursuant to Article 50 (3), if it considers, on the basis
of the examination made pursuant to the second sentence of Article 54
(1), that this denomination is suitable.

2. A variety denomination is suitable, if there is no impediment
pursuant to paragraphs 3 or 4 of this Article.

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
right 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 Member of the International Unit for the Protection of
New Varieties of Plants, unless the other variety no longer remains
in existence and its denomination has acquired no special signifi
cance;

(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;

(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 any other party to proceedings.

4. There is another impediment where, in the case of a variety
which has already been entered:

(a) in one of the Member States; or

(b) in a Member of the International Union for the Protection of New
Varieties of Plants; 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 and has been
marketed there for commercial purposes, and 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. The Office shall publish the species which it considers ‘closely
related’ within the meaning of paragraph 3 (c).

CHAPTER IV

**THE MAINTENANCE OF COMMUNITY PLANT VARIETY**

**RIGHTS**

_Article 64_

**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 55 and 56.

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- **B**

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 65_

**Report on the technical verification**

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

_Article 66_

**Amendment of the variety denomination**

1. The Office shall amend a variety denomination designated
pursuant to Article 63 if it establishes that the denomination does not
satisfy, or no longer satisfies, the conditions laid down in Article 63
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 an
amended variety denomination and shall proceed in accordance with
Article 63.

3. Objections may be lodged against the proposed amended variety
denomination in accordance with Article 59 (3) (b).

CHAPTER V

**APPEALS**

_Article 67_

**Decisions subject to appeal**

1. An appeal shall lie from decisions of the Office which have been
taken pursuant to Articles 20, 21, 59, 61, 62, 63 and 66, as well as on
decisions related to fees pursuant to Article 83, to costs pursuant to
Article 85, to the entering or deletion of information in the Register
pursuant to Article 87 and to the public inspection pursuant to Article
88.

2. An appeal lodged pursuant to paragraph 1 shall have suspensory
effect. The Office may, however, if it considers that circumstances so
require, order that the contested decision not be suspended.

3. An appeal may lie from decisions of the Office pursuant to Articles 29 and 100 (2), unless a     - **M1** direct action ◄ is

  - **M1** brought ◄ pursuant to Article 74. The appeal shall not have
suspensory effect.

4. 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 provides
for separate appeal.

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- **B**

_Article 68_

**Persons entitled to appeal and to be parties to appeal proceedings**

Any natural or legal person may appeal, subject to Article 82, against a
decision, addressed to that person, or against a decision which,
although in the form of a decision addressed to another person, is of
direct and individual concern to the former. The parties to proceedings
may, and the Office shall, be party to the appeal proceedings.

_Article 69_

**Time limit and form**

Notice of appeal shall be filed in writing at the Office within two
months of the service of the decision where addressed to the appealing
person, or, in the absence thereof, within two months of the publication
of the decision, and a written statement setting out the grounds of
appeal shall be filed within four months after the aforesaid service or
publication.

_Article 70_

**Interlocutory revision**

1. If the body of the Office which has prepared the decision
considers the appeal to be admissible and well founded, the Office
shall rectify the decision. This shall not apply where the appellant is
opposed by another party to the appeal proceedings.

2. If the decision is not rectified within one month after receipt of
the statement of grounds, for the appeal, the Office shall forthwith:

— decide whether it will take an action pursuant to Article 67 (2),
second sentence, and

— remit the appeal to the Board of Appeal.

_Article 71_

**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 the appeal proceedings to file observations on notifications issued by itself or on communications from the
other parties to the appeal proceedings within specified time limits.
Parties to the appeal proceedings shall be entitled to make oral representations.

_Article 72_

**Decision on appeal**

The Board of Appeal shall decide on the appeal on the basis of the
examination carried out pursuant to Article 71. 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, in so far as the facts are the
same, be bound by the _ratio decidendi_ of the Board of Appeal.

- **M1**

_Article 73_

**Actions against decisions of the Boards of Appeal**

1. Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals.

2. The action may be brought 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.

1994R2100 — EN — 05.06.2003 — 002.001 — 29

- **M1**

3. The Court of Justice shall have jurisdiction to annul or to alter the
contested decision.

4. The action shall be open to any party to appeal proceedings
which has been unsuccessful, in whole or in part, in its submissions.

5. The action shall be brought before the Court of Justice within two
months of the date of service of the decision of the Board of Appeal.

6. The Office shall be required to take the necessary measures to
comply with the judgment of the Court of Justice.

- **B**

_Article 74_

- **M1**

**Direct action**

- **B**

1.     - **M1** A direct action may be brought before the Court of Justice
against ◄ decisions of the Office pursuant to Articles 29 and 100 (2).

2. The provisions laid down in Article 73 shall apply _mutatis_
_mutandis_ .

CHAPTER VI

**MISCELLANEOUS** **CONDITIONS** **GOVERNING** **PROCEED-**

**INGS**

_Article 75_

**Statement of grounds on which decisions are based, right of audi-**

**ence**

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 to proceedings have had an opportunity to present their comments orally or in writing.

_Article 76_

**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 54 and 55. It shall disregard facts or items
of evidence which have not been submitted within the time limit set by
the Office.

_Article 77_

**Oral proceedings**

1. Oral proceedings shall be held either on the initiative of the
Office itself or at the request of any of the parties to proceedings.

2. Without prejudice to paragraph 3, oral proceedings before the
Office shall not be public.

3. Oral proceedings before the Board of Appeal including delivery
of the decision, shall be public in so far 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
appeal proceedings.

_Article 78_

**Taking of evidence**

1. In any proceedings before the Office, the means of giving or
obtaining evidence may include the following:

(a) hearing the parties to proceedings;

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- **B**

(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 to proceedings,
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 91 (2).

4. A party to proceedings, 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 91 (2),
request the competent judicial or other authority to hear the evidence
of that person.

5. If a party to proceedings, 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 to take the evidence in binding form
and to permit a member of the Office to attend the hearing and question the party to proceedings, witness or expert either through that
judicial or other authority or directly.

_Article 79_

**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 80_

**Restitutio in integrum**

1. Where, in spite of having taken all due care in the particular
circumstances, the applicant for a Community plant variety right or
the holder or any other 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.

2. Applications shall be filed in writing within two months after the
cause of non-compliance when the time 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 limit 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.

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- **B**

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
52 (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 81_

**General principles**

1. In the absence of procedural provisions in this Regulation or in
provisions adopted pursuant to this Regulation, the Office shall apply
the principles of procedural law which are generally recognized in the
Member States.

2. Article 48 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
67, and to the staff of the Examination Offices, in so far as it participates in measures for the preparation of such decisions.

_Article 82_

**Procedural representative**

Persons who are not domiciled or do not have a seat or an establishment within the territory of the Community may participate as party
to 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.

CHAPTER VII

**FEES, SETTLEMENT OF COSTS**

_Article 83_

**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 113.

2. If fees due in respect of the official acts set out in Article 113 (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 filled 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
success of the appeal is based on facts which were not available at
the time of the original decision.

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- **B**

_Article 84_

**Termination of financial obligations**

1. The Office's right to require payment of fees shall lapse after four
years from the end of the calender 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 the effect of interrupting the time limit specified in paragraph 1, and a written and
reasoned claim for refund shall have the effect of interrupting 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 judicial proceedings to enforce the right have been
instituted in the meantime; in that case the time limit shall end not
earlier than one year after the judgment has acquired the authority of
a final decision.

_Article 85_

**Apportionment of costs**

1. The losing party to proceedings for revocation or cancellation of
a Community plant variety right, or to appeal proceedings shall bear
the costs incurred by the other party to proceedings as well as all costs
incurred by him essential to the proceedings, including travel and
subsistence and the remuneration of an agent, adviser or advocate,
within the limits of the scales set for each category of costs under the
conditions laid down in the implementing rules pursuant to Article 114.

2. However, where each party to proceedings succeeds on some and
fails on other heads, or if reasons of equity so dictate, the Office or
Board of Appeal shall decide a different apportionment of costs.

3. The party to proceedings who terminates the proceedings by withdrawing the application for a Community plant variety right, the
application for revocation or cancellation of rights, or the appeal, or
by surrendering the Community plant variety rights, shall bear the costs
incurred by the other party to proceedings as stipulated in paragraphs 1
and 2.

4. Where the parties to proceedings conclude before the Office, or
Board of Appeal a settlement of costs differing from that provided for
in the preceding paragraphs, note shall be taken of that agreement.

5. On request, the Office or Board of Appeal shall determine the
amount of the costs to be paid pursuant to the preceding paragraphs.

_Article 86_

**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.

1994R2100 — EN — 05.06.2003 — 002.001 — 33

- **B**

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.

CHAPTER VIII

**REGISTERS**

_Article 87_

**Establishment of the Registers**

1. The Office shall keep a Register of Applications for Community
Plant Variety Rights which shall contain the following particulars:

(a) applications for 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 breeder and of any procedural representative
concerned;

(b) any cases of termination of proceedings concerning applications for
a Community plant variety right together with the information set
out in subparagraph (a);

(c) proposals for variety denominations;

(d) changes in the identity of the applicant or his procedural representative;

(e) on request, any levy of execution as referred to in Articles 24 and
26.

2. 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 name and address of the holder, of the breeder and of any
procedural representative concerned;

(e) the date on which the Community plant variety right begins and
ends, together with the reasons for the termination of right;

(f) on request, any contractual exclusive exploitation right or compulsory exploitation right, including the name and address of the
person enjoying the right of exploitation;

(g) on request, any levy of execution as referred to in Article 24;

(h) where the holder of an initial variety and the breeder of a variety
essentially derived from the initial variety both so request, the identification of the varieties as initial and essentially derived including
the variety denominations and the names of the parties concerned.
A request from one of the parties concerned only shall suffice if he
has obtained either a non-contentious acknowledgement by the
other party pursuant to Article 99 or a final decision or a final
judgment pursuant to the provisions of this Regulation which
contain an identification of the varieties concerned as initial and
essentially derived.

3. Any other particular or any condition for the entering in both
Registers may be specified in the implementing rules pursuant to
Article 114.

4. 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 char

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- **B**

acteristics, 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.

_Article 88_

**Public inspection**

1. The Registers mentioned in Article 87 shall be open to public
inspection.

2. In case of a legitimate interest, the following shall be open to
public inspection, in accordance with the conditions set up in the
implementing rules pursuant to Article 114:

(a) documents relating to applications for grant of a Community plant
variety right;

(b) documents relating to Community plant variety rights already
granted;

(c) the growing of varieties for the purposes of their technical examination;

(d) the growing of varieties for the purpose of verifying their continuing existence.

3. In the case of varieties for which material with specific components has to be used repeatedly for the production of material, at the
request of the applicant for a Community plant variety right, 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 55 (4), 56 and 64 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 89_

**Periodical publications**

The Office shall at least every two months, issue a publication
containing the information entered into the Registers pursuant to
Article 87 (1) and (2) (a), (d), (e), (f), (g) and (h), and not yet
published. The Office shall also publish an annual report, containing
information which the Office regards as expedient, but at least a list
of valid Community plant variety rights, their holders, the dates of
grant and expiry and the approved variety denominations. Details of
these publications shall be specified by the Administrative Council.

_Article 90_

**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 88 (3) shall be excluded from
information, unless:

(a) the information is necessary for the conduct of the examinations
pursuant to Articles 55 and 64; or

(b) the applicant for a Community plant variety right or the holder
gives his consent.

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- **B**

_Article 91_

**Administrative and legal cooperation**

1. Unless otherwise provided in this Regulation or in national law,
the Office, Examination Offices referred to in Article 55 (1) 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 and the Examination Offices lay 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 88, and the inspection given by the Examination
Offices shall not be subject to a decision of the Office pursuant to
that Article.

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 measures.

PART FIVE

**IMPACT ON OTHER LAWS**

_Article 92_

**Cumulative protection prohibited**

1. Any variety which is the subject matter of a Community plant
variety right shall not be the subject of a national plant variety right
or any patent for that variety. Any rights granted contrary to the first
sentence shall be ineffective.

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 for the variety for as long as the Community plant variety
right remains effective.

_Article 93_

**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 Regulation.

PART SIX

**CIVIL LAW CLAIMS, INFRINGEMENTS, JURISDIC-**
**TION**

_Article 94_

**Infringement**

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) omits the correct usage of a variety denomination as referred to in
Article 17 (1) or omits the relevant information as referred to in
Article 17 (2); or

(c) contrary to Article 18 (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.

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- **B**

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 may 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 95_

**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 a Community plant variety right and grant thereof, effected an act that he would
be prohibited from performing subsequent thereto.

_Article 96_

**Prescription**

Claims pursuant to Articles 94 and 95 shall be time barred after three
years from the time at which the Community plant variety right has
finally been granted and the holder has knowledge of the act and of
the identity of the party liable or, in the absence of such knowledge,
after 30 years from the termination of the act concerned.

_Article 97_

**Supplementary application of national law regarding infringement**

1. Where the party liable pursuant to Article 94 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
101 or 102 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 95 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.

_Article 98_

**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 Community
plant variety right transferred to him.

2. Where a person ist 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 whom the entitlement was not vested solely.

1994R2100 — EN — 05.06.2003 — 002.001 — 37

- **B**

_Article 99_

**Obtaining identification of a variety**

The holder of an initial variety and the breeder of a variety essentially
derived from the initial variety shall be entitled to obtain an acknowledgement of the identification of the varieties concerned as initial and
essentially derived.

_Article 100_

**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 judgment delivered
pursuant to Articles 101 or 102 for the purposes of claiming entitlement under Article 98 (1), any exploitation or other rights shall lapse
with the entry of the person entitled in the Register of Community
Plant Variety Rights.

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 101 or 102, he may continue or
perform such acts provided he requests 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 may be granted
by the Office in the absence of an agreement between the parties.
Article 29 (3) to (7) shall apply _mutatis mutandis_ .

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 101_

**Jurisdiction and procedure in legal actions relating to civil law**
**claims**

1. The Lugano Convention as well as the complementary provisions
of this Article and of Articles 102 to 106 of this Regulation shall apply
to proceedings relating to actions in respect of the claims referred to in
Articles 94 to 100.

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 Lugano
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 States in which the seat of the Office is located.

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 occured. 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.

1994R2100 — EN — 05.06.2003 — 002.001 — 38

- **B**

_Article 102_

**Supplementary provisions**

1. Actions for claiming entitlement pursuant to Article 98 of this
Regulation shall not be considered to fall under the provisions of
Article 5 (3) and (4) of the Lugano Convention.

2. Notwithstanding Article 101 of this Regulation, Articles 5 (1), 17
and 18 of the Lugano Convention shall apply.

3. For the purposes of applying Articles 101 and 102 of this Regulation, the domicile or seat of a party shall be determined pursuant to
Articles 52 and 53 of the Lugano Convention.

_Article 103_

**Rules of procedure applicable**

Where jurisdiction lies with national courts pursuant to Articles 101
and 102, the rules of procedure of the relevant State governing the
same type of action relating to corresponding national property rights
shall apply without prejudice to Articles 104 and 105.

_Article 104_

**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 unless that has
been expressly excluded by agreement with the holder in the case of
an exclusive exploitation right or by the Office pursuant to Articles 29
or 100 (2).

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 105_

**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.

_Article 106_

**Stay of proceedings**

1. Where an action relates to claims pursuant to Article 98 (4) and
the decision depends upon the protectability of the variety pursuant to
Article 6, this decision may not be given before the Office has decided
on the application for a Community plant variety right.

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 20 or 21 have been initiated, the
proceedings may be stayed in so far as the decision depends upon the
validity of the Community plant variety right.

_Article 107_

**Penalties for infringement of Community plant variety rights**

Member States shall take all appropriate measures to ensure that the
same provisions are made applicable to penalize infringements of
Community plant variety rights as apply in the matter of infringements
of corresponding national rights.

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- **B**

PART SEVEN

**BUDGET,** **FINANCIAL** **CONTROL,** **COMMUNITY**
**IMPLEMENTING RULES**

_Article 108_

**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 83 under the fees regulations referred to in Article 113, and, to the extent necessary, a subsidy
from the general budget of the European Communities.

4. Expenditure shall comprise, without prejudice to other types of
expenditure, the fixed costs of the Office and the costs arising from
the Office's normal functioning, including sums payable to the Examination Offices.

_Article 109_

**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 transmit it to
the Administrative Council not later than 31 March each year, together
with a list of posts and, where the estimate provides for a subsidy
referred to in Article 108 (3), prefaced by an explanatory statement.

2. Should the estimate provide for a subsidy referred to in Article
108 (3), the Administrative Council shall immediately forward the estimate to the Commission, together with the list of posts and the
explanatory statement, and may attach its opinion. The Commission
shall forward them to the budget authority of the Communities and
may attach an opinion along with an alternative estimate.

3. The Administrative Council shall adopt the budget, which shall
include the Office's list of posts. Should the estimate contain a subsidy
referred to in Article 108 (3), the budget shall, if necessary, be adjusted
to the appropriations in the general budget of the European Communities.

_Article 110_

**Implementation of the budget**

The President shall implement the Office's budget.

_Article 111_

**Control**

1. 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 appointed by the Administrative Council.

2. Not later than 31 March each year the President shall transmit to
the Commission, the Administrative Council and the Court of Auditors
of the European Communities accounts of the Office's total revenue
and expenditure for the preceding financial year. The Court of Auditors
shall examine them in accordance with relevant provisions applicable
to the general budget of the European Communities.

3. The Administrative Council shall give a discharge to the President of the Office in respect ot the implementation of the budget.

1994R2100 — EN — 05.06.2003 — 002.001 — 40

- **B**

_Article 112_

**Financial provisions**

The Administrative Council shall, after consulting the Court of Auditors, adopt internal financial provisions specifying, in particular, the
procedure for establishing and implementing the Office's budget. The
financial provisions must, as far as possible, correspond to the provisions of the Financial Regulation applicable to the general budget of
the European Communities and depart from them only when the
specific requirements of the individual operation of the Office so
dictate.

_Article 113_

**Fees regulations**

1. The fees regulations shall determine in particular the matters for
which fees pursuant to Article 83 (1) are due, the amounts of the fees
and the way in which they are to be paid.

2. Fees shall be charged for at least in respect of the following
matters for:

(a) the processing of applications for grant of a Community plant
variety right; this fee shall cover:

— the formal examination, (Article 53),

— the substantive examination (Article 54),

— the examination of the variety denomination (Article 63),

— the decision (Articles 61, 62)

— the related publishing (Article 89);

(b) the arranging and carrying out of the technical examination;

(c) the processing of an appeal including the decision;

(d) each year of the duration of a Community plant variety right.

3. (a) Without prejudice to (b) and (c), the amounts of the fees shall
be fixed at such a level as to ensure that the revenue in respect
thereof is in principle sufficient for the budget of the Office to
be balanced.

(b) However, the subsidy referred to in Article 108 (3) may cover,
for a transitional period ending on 31 December of the fourth
year from the date laid down in Article 118 (2), the expenditure
relating to the initial running phase of the Office. In accordance
with the procedure laid down in Article 115, this period may be
extended, if necessary, for no more than one year.

(c) Moreover, during the abovementioned transitional period only,
the subsidy referred to in Article 108 (3) may also cover certain
expenditure of the Office relating to certain activities other than
the processing of applications, the arranging and carrying out of
the technical examinations and the processing of appeals. These
activities shall be specified, at the latest one year after the adoption of this Regulation, in implementing rules pursuant to
Article 114.

4. The fees regulations shall be adopted in accordance with the
procedure laid down in Article 115, after consultation of the Administrative Council on the draft of the measures to be taken.

_Article 114_

**Other implementing rules**

1. Detailed implementing rules shall be adopted for the purpose of
applying this Regulation. They shall in particular include procisions:

— defining the relationship between the Office and the Examination
Offices, agencies or its own sub-offices referred to in Articles 30
(4) and 55 (1) and (2),

— on matters referred to in Articles 36 (1) and 42 (2),

1994R2100 — EN — 05.06.2003 — 002.001 — 41

- **B**

— on the procedure of the Boards of Appeal.

2. Without prejudice to Articles 112 and 113, all the implementing
rules referred to in this Regulation shall be adopted in accordance with
the procedure laid down in Article 115, after consultation of the
Administrative Council on the draft of the measures to be taken.

- **M2**

_Article 115_

**Procedure**

1. The Commission shall be assisted by a committee.

2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC ( [1] ) shall apply.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be
set at three months.

3. The committee shall adopt its rules of procedure.

- **B**

PART EIGHT

**TRANSITIONAL AND FINAL PROVISIONS**

_Article 116_

**Derogations**

1. Notwithstanding Article 10 (1) (a) and without prejudice to the
provisions of Article 10 (2) and (3), a variety shall be deemed to be
new also in cases where variety constituents or harvested material
thereof have not been sold or otherwise disposed of to others, by or
with the consent of the breeder, within the territory of the Community
for purposes of exploitation of the variety, earlier than four years, in
the case of trees or of vines earlier than six years, before the entry
into force of this Regulation, if the date of application is within one
year of that date.

2. The provision of paragraph 1 shall apply to such varieties also in
cases where a national plant variety right was granted in one or more
Member States before the entry into force of this Regulation.

3. Notwithstanding Articles 55 and 56, the technical examination of
these varieties shall be carried out to the extent possible by the Office
on the basis of the available findings resulting from any proceedings
for the grant of a national plant variety right, in agreement with the
authority before which these proceedings were held.

4. In the case of a Community plant variety right granted pursuant
to paragraphs 1 or 2:

— Article 13 (5) (a) shall not apply in relation to essentially derived
varieties, the existence of which was a matter of common knowledge in the Community before the date of entry into force of this
Regulation.

— Article 14 (3), fourth indent shall not apply to farmers who
continue to use an established variety in accordance with the
authorization of Article 14 (1) if, before the entry into force of
this Regulation, they have already used the variety for the purposes
described in Article 14 (1) without payment of a remuneration; this
provision shall apply until 30 June of the seventh year following
that of the entry into force of this Regulation. Before that date the
Commission shall submit a report on the situation of the established
varieties dealing with each variety individually. That period may be
extended, in the implementing provisions adopted pursuant to
Article 114, in so far as the Commission's report justifies it.

( [1] ) OJ L 184, 17.7.1999, p. 23.

1994R2100 — EN — 05.06.2003 — 002.001 — 42

- **B**

— without prejudice to the rights conferred by national protection, the
provisions of Article 16 shall apply _mutatis mutandis_ to acts
concerning material disposed of to others by the breeder or with
his consent prior to the date of entry into force of this Regulation,
and effected by person who, prior to that date, have already effected
such acts or have made effective and genuine arrangements to do

so.

If such earlier acts have involved further propagation which was
intended within the meaning of Article 16 (a), the authorization of
the holder shall be required for any further propagation after the
expiry of the second year, in the case of varieties of vine and tree
species after the expiry of the fourth year, following the date of
entry into force of this Regulation.
— Notwithstanding Article 19, the duration of the Community plant
variety right shall be reduced by the longest period:

— during which variety constituents or harvested material thereof
have been sold or otherwise disposed of to others, by or with
the consent of the breeder, within the territory of the Community for purposes of exploitation of the variety, as established
in the findings resulting from the procedure for the grant of the
Community plant variety right, in the case of paragraph 1,
— during which any national plant variety right or rights have been
effective, in the case of paragraph 2,

but not more than by five years.

_Article 117_

**Transitional provisions**

The Office shall be set up in good time to assume fully the tasks
incumbent upon it pursuant to this Regulation as from 27 April 1995.

_Article 118_

**Entry into force**

1. This Regulation shall enter into force on the day of its publication
in the _Official Journal of the European Communities_ .

2. Articles 1, 2, 3, 5 to 29 and 49 to 106 shall apply from 27 April
1995.

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