CELEX: 62010CJ0534
Language: en
Date: 2012-12-19 00:00:00
Title: Judgment of the Court (First Chamber) of 19 December 2012. # Brookfield New Zealand Ltd and Elaris SNC v Community Plant Variety Office (CPVO) and Schniga GmbH. # Appeal - Community plant variety rights - Regulation (EC) No 2100/94 - Article 73(2) - Decision of the Board of Appeal of the CPVO refusing an application for a Community plant variety right - Discretion - Review by the General Court - Article 55(4) read in conjunction with Article 61(1)(b) - Right of the CPVO to make a new request for the submission of plant material. # Case C-534/10 P.

Reports of Cases
                                    JUDGMENT OF THE COURT (First Chamber)
                                             19 December 2012 *
        (Appeal — Community plant variety rights — Regulation (EC) No 2100/94 — Article 73(2) —
    Decision of the Board of Appeal of the CPVO refusing an application for a Community plant variety
         right — Discretion — Review by the General Court — Article 55(4) read in conjunction with
     Article 61(1)(b) — Right of the CPVO to make a new request for the submission of plant material)
   In Case C-534/10 P,
   APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on
   15 November 2010,
   Brookfield New Zealand Ltd, established in Havelock North (New Zealand),
   Elaris SNC, established in Angers (France),
   represented by M. Eller, avvocato,
                                                                                                 appellants,
   the other parties to the proceedings being:
   Community Plant Variety Office (CPVO), represented by M. Ekvad and M. Lightbourne, acting as
   Agents,
                                                                               defendant at first instance,
   Schniga GmbH, established in Bolzano (Italy), represented by G. Würtenberger, Rechtsanwalt,
                                                                                applicant at first instance,
                                         THE COURT (First Chamber),
   composed of A. Tizzano, President of the Chamber, M. Ilešič, E. Levits (Rapporteur), J.-J. Kasel and M.
   Safjan, Judges,
   Advocate General: J. Mazák,
   Registrar: R. Şereş,
   having regard to the written procedure and further to the hearing on 26 April 2012,
   after hearing the Opinion of the Advocate General at the sitting on 12 July 2012,
   * Language of the case: English.
EN
          ECLI:EU:C:2012:813                                                                               1
 ---pagebreak---                                      JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                             BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
  gives the following
                                                  Judgment
1 By their appeal, Brookfield New Zealand Ltd (‘Brookfield’) and Elaris SNC (‘Elaris’) claim that the
  Court should set aside the judgment of 13 September 2010 in Case T-135/08 Schniga v CPVO - Elaris
  and Brookfield New Zealand (Gala Schnitzer) [2010] ECR II-5089 (‘the judgment under appeal’), by
  which the General Court of the European Union annulled the decision of the Board of Appeal of the
  Community Plant Variety Office (CPVO) of 21 November 2007 relating to the grant of a Community
  plant variety right for the ‘Gala Schnitzer’ plant variety (Cases A 003/2007 and A 004/2007) (‘the
  contested decision’).
  Legal context
2 Article 10(1) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety
  rights (OJ 1994 L 227, p 1), as amended by Council Regulation (EC) No 2506/95 of 25 October 1995
  (OJ 1995 L 258, p 3) (‘Regulation No 2100/94’), provides:
  ‘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;
  …’
3 Article 55(4) of Regulation No 2100/94 sets out the CPVO’s powers as regards the procedure for
  granting Community plant variety rights:
  ‘The [CVPO] 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.’
4 Article 61(1) of Regulation No 2100/94 sets out the conditions under which applications for a
  Community plant variety right will be refused:
  ‘The [CVPO] shall refuse applications for a Community plant variety right if and as soon as it
  establishes that the applicant:
  …
  (b) has not complied with a rule or request pursuant to Article 55(4) or (5) within the time limit laid
       down, unless the [CVPO] has consented to non-submission;
  …’
5 Paragraphs 1, 2 and 3 of Article 73 of Regulation No 2100/94, which is entitled ‘Actions against
  decisions of the Boards of Appeal’, provide:
  ‘1. Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on
  appeals.
  2                                                                                     ECLI:EU:C:2012:813
 ---pagebreak---                                        JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                               BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
   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.
   3. The Court of Justice shall have jurisdiction to annul or to alter the contested decision.’
6  Article 80(1) of Regulation No 2100/94 provides:
   ‘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 [CVPO] has
   been unable to observe a time limit vis-à-vis the [CVPO], 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.’
7  As stated in the third recital in the preamble to Regulation No 2506/95, it is appropriate to align the
   rules on actions which may be brought against decisions of the CPVO or its Boards of Appeal
   established by Regulation No 2100/94 with those provided for in Council Regulation (EC) No 40/94
   of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p 1).
   Background to the dispute and the contested decision
8  On 18 January 1999, Konsortium Südtiroler Baumschuler (‘KSB’), the legal predecessor of Schniga
   GmbH (‘Schniga’), filed an application for a Community plant variety right at the CPVO in respect of
   the apple variety (Malus Mill) Gala Schnitzer, initially called Schniga.
9  The CPVO asked the Bundessortenamt (Federal Plant Variety Office, Germany) to carry out the
   technical examination referred to in Article 55(1) of Regulation No 2100/94.
10 By letter of 26 January 1999, the CPVO asked KSB to submit to it, and also to the Bundessortenamt,
   between 1 March and 15 March 1999, the plant material necessary for the technical examination. The
   CPVO also stated that KSB was responsible for complying with all phytosanitary and customs
   requirements applicable to the delivery of the material.
11 KSB submitted the requested material within the time-limits set.
12 By letter of 25 March 1999, the CPVO acknowledged receipt of the material requested, but stated that
   it was not accompanied by a phytosanitary certificate. It therefore asked KSB to ensure that that
   essential document was provided ‘as soon as possible’.
13 On 23 April 1999, KSB sent a European plant passport to the Bundessortenamt and told it that the
   authority which had issued the passport – the Plant Protection Service of Bolzano (Italy) – had stated
   that that document served as a phytosanitary certificate.
14 On 3 May 1999, the Bundessortenamt informed KSB that the material had arrived in due time and that
   it was appropriate. It also stated that the European plant passport provided was sufficient for the
   purposes of carrying out the technical examination and determining whether the substantive
   conditions for the grant of a Community plant variety right had been met. The Bundessortenamt did,
   however, request a copy of an official certificate confirming that the material sent was virus-free.
15 In 2001, KSB informed the Bundessortenamt that it was impossible for it to provide the requested
   documentary evidence. It had emerged that the material sent in March 1999 for the purposes of the
   technical examination was not virus-free. The Bundessortenamt therefore informed the CPVO that it
   intended to uproot the infected material in order to prevent the virus spreading to other plants.
   ECLI:EU:C:2012:813                                                                                         3
 ---pagebreak---                                        JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                               BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
16 By email of 13 June 2001, the CPVO informed KSB that, in consultation with the Bundessortenamt, it
   had decided to authorise KSB to provide new, virus-free plant material in order to resume the
   examination of the application. The CPVO justified its decision by the fact that its instructions
   regarding the phytosanitary state of the material had not been sufficiently clear, because it had not
   specified that the material should be virus-free. Accordingly, KSB could not be regarded as
   responsible for the situation.
17 On 5 May 2006, Elaris and Brookfield – respectively the licensee and the holder of the plant variety
   right relating to the Baigent variety – lodged with the CPVO, pursuant to Article 59 of Regulation
   No 2100/94, objections to the grant of a right for the Gala Schnitzer variety. The objections were
   based on the earlier right in respect of the apple variety (Malus Mill) Baigent.
18 The grounds relied on by Brookfield related to the fact that the Gala Schnitzer variety was not
   sufficiently distinct from the reference variety owned by Brookfield. Brookfield also contested the fact
   that KSB had been given the right to submit new, virus-free plant material when, according to
   Brookfield, the CPVO should have refused KSB’s initial application.
19 By decisions EU 18759, OBJ 06-021 and OBJ 06-022 of 26 February 2007, the competent CPVO
   committee granted a Community plant variety right for the Gala Schnitzer variety, finding that it was
   sufficiently distinct from the reference variety Baigent. It also dismissed Brookfield’s objections.
20 On 11 April 2007, Brookfield lodged an appeal, pursuant to Articles 67 to 72 of Regulation
   No 2100/94, against the CPVO Committee’s decisions.
21 By the contested decision, the Board of Appeal annulled the decisions of that committee and itself
   refused the application for a Community plant variety right for the Gala Schnitzer variety. In
   particular, it found that Article 61(1)(b) of Regulation No 2100/94 did not empower the CPVO to
   authorise KSB to submit new material, since KSB had not complied with the requests in an individual
   case, for the purposes of Article 55(4) of that regulation, set out in the letters of 26 January and
   25 March 1999.
   The action before the General Court and the judgment under appeal
22 By application lodged on 4 April 2008, Schniga claimed that the General Court should annul the
   contested decision on the basis of the following pleas in law:
   — the inadmissibility of the objections lodged with the CPVO by Elaris and Brookfield;
   — infringement of Article 61(1)(b) and Article 62 of Regulation No 2100/94;
   — infringement of Article 55(4) of Regulation No 2100/94.
23 Elaris and Brookfield took part in the proceedings before the General Court as interveners in support
   of the CPVO. At the hearing, the CPVO amended its heads of claim and agreed with the position
   defended by Schniga.
24 After declaring the first plea in law raised by Schniga to be inadmissible, the General Court examined
   the admissibility of the third plea in law, which had been challenged by Elaris and Brookfield.
25 In that regard, the General Court held, in paragraph 39 of the judgment under appeal, that the Board
   of Appeal had assessed the legal nature of the letters of 26 January and 25 March 1999 and, in
   consequence, that assessment was subject to review by the Court.
   4                                                                                         ECLI:EU:C:2012:813
 ---pagebreak---                                       JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                              BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
26 In examining the merits of the third plea put forward by Schniga, the General Court, in paragraphs 62
   and 63 of the judgment under appeal, rejected the Board of Appeal’s findings that, as KSB had not
   complied with the requests in an individual case set out in the CPVO’s letters of 26 January and
   25 March 1999, the CPVO was required to refuse KSB’s application in respect of the Gala Schnitzer
   variety.
27 The arguments deployed by the General Court, leading it to hold that the CPVO had not misconstrued
   the scope of the discretion conferred on it by Article 55(4) of Regulation No 2100/94, are set out in
   paragraphs 64 to 80 of the judgment under appeal.
28 First, in paragraph 64 of the judgment under appeal, the General Court stated that it is consistent with
   the principle of sound administration and with the need to ensure the proper conduct and effectiveness
   of proceedings that where, in the event of a lack of precision as to the conditions to be met if an
   application for a Community plant variety right is to be examined, the CPVO considers that that lack
   of precision can be remedied, it has the power to continue with the examination of the application and
   is not required to refuse it.
29 In addition, in paragraph 65 of the judgment under appeal, the General Court stated that that
   discretion enables both the CPVO to satisfy itself that its requests in individual cases are clear and
   other applicants to know their rights and obligations without ambiguity.
30 After describing all the exchanges which took place between the CPVO and KSB, the General Court
   found, in paragraph 75 of the judgment under appeal, that the letters of 26 January and of 25 March
   1999 lacked precision with regard to the fact that the plant material to be submitted had to be
   virus-free and that, accordingly, the email of 13 June 2001 was intended to remedy that imprecision.
31 Secondly, the General Court rejected as ineffective the allegations made by Brookfield and Elaris that,
   in relation to the procedure for the examination of its application, KSB had acted in bad faith, and
   indicated that Article 80 of Regulation No 2100/94 was not relevant in the circumstances.
32 Consequently, the General Court upheld the third plea in law put forward by Schniga and annulled the
   contested decision.
   Procedure before the Court
33 By their appeal, Brookfield and Elaris claim that the Court should:
   — set aside the judgment under appeal and refer the case back to the General Court for a ruling on
       the substance of the case;
       — in the alternative, give final judgment and dismiss the action at first instance; and
   — order Schniga to pay the costs.
34 The CPVO and Schniga contend that the Court should:
   — dismiss the appeal; and
   — order Brookfield and Elaris to pay the costs.
   ECLI:EU:C:2012:813                                                                                     5
 ---pagebreak---                                        JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                               BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
   The appeal
35 Brookfield and Elaris rely on two grounds of appeal (i) infringement by the General Court of
   Article 73(2) of Regulation No 2100/94 and (ii) infringement of Article 55(4) of Regulation
   No 2100/94, read in conjunction with Articles 61(1)(b) and 80 of that regulation.
   The first ground of appeal: infringement of Article 73(2) of Regulation No 2100/94
   Arguments of the parties
36 Brookfield and Elaris claim that, by re-appraising the facts when considering the third plea in law
   raised before it, the General Court exceeded its jurisdiction to review legality. The judgment under
   appeal is accordingly based on a new assessment of the significance and scope of the CPVO’s letters of
   26 January and 25 March 1999. However, according to Brookfield and Elaris, under the terms of
   Article 73(2) of Regulation No 2100/94, the General Court has jurisdiction only to verify that
   decisions of the Board of Appeal are lawful.
37 The CPVO and Schniga contend that the General Court has exclusive jurisdiction to find and appraise
   the relevant facts, which are not open to review by the Court of Justice on appeal. Moreover, in the
   judgment under appeal, the General Court reviewed the Board of Appeal’s legal assessment of the facts
   – an exercise which, on any view, falls within its jurisdiction. According to the CPVO and Schniga, the
   arguments put forward by Brookfield and Elaris are therefore inadmissible.
   Findings of the Court
38 It should be borne in mind that, in accordance with recital 3 in the preamble to Regulation
   No 2506/95, Article 73 of Regulation No 2100/94 was amended in order to align the rules on actions
   which may be brought against decisions of the CPVO or its Boards of Appeal with the rules laid
   down in Regulation No 40/94.
39 The Court has repeatedly held, as regards Article 63 of Regulation No 40/94, which was framed in
   terms identical to those of Article 73 of Regulation No 2100/94, that the General Court is called upon
   to assess the legality of the decisions of the Boards of Appeal of OHIM by reviewing the way in which
   they have applied European Union law, specifically in the light of the factual evidence placed before
   those Boards. Accordingly, within the limits laid down in Article 63 of Regulation No 40/94, as
   interpreted by the Court of Justice, the General Court may carry out a full review of the legality of
   decisions of the Boards of Appeal of OHIM, if necessary examining whether the Board of Appeal
   concerned made a correct legal characterisation of the facts of the dispute or whether its appraisal of
   the facts placed before it was flawed (see, to that effect, Case C-16/06 P Les Éditions Albert René v
   OHIM [2008] ECR I-10053, paragraphs 38 and 39).
40 In that regard, the Court of Justice has acknowledged that the General Court has a similar jurisdiction
   as regards the review of the legality of decisions of the CPVO or of its Boards of Appeal (see, to that
   effect, Case C-38/09 P Schräder v CPVO [2010] ECR I-3209, paragraph 69).
41 In the present case, the General Court held, in paragraph 69 of the judgment under appeal, that the
   letters of 26 January and 25 March 1999 contained requests in an individual case.
42 In that respect, since it must be acknowledged that, in appeals lodged against decisions of the CPVO or
   of its Boards of Appeal, the General Court enjoys the same jurisdiction to make appraisals, it cannot be
   claimed that the General Court erred in law.
   6                                                                                      ECLI:EU:C:2012:813
 ---pagebreak---                                        JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                              BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
43 Consequently, the first ground of appeal must be rejected as unfounded.
   The second ground of appeal: infringement of Article 55(4) of Regulation No 2100/94, read in
   conjunction with Articles 61(1)(b) and 80 of that regulation
   Arguments of the parties
44 By their second ground of appeal, Brookfield and Elaris first take issue with the General Court for
   holding that, under Article 55(4), the CPVO may make a request in an individual case, relating to the
   submission of documents attesting to health status, which is distinct from the request for submission
   of the plant material necessary for the technical examination.
45 Secondly, according to Brookfield and Elaris, the General Court infringed Article 55(4) of Regulation
   No 2100/94, read in conjunction with Article 61(1)(b) of that regulation, by holding that the CPVO
   could authorise the submission of new plant material after the deadline specified in an initial request
   for material. Furthermore, according to Brookfield and Elaris, the General Court erred in finding that
   the words ‘as soon as possible’ in the letter of 25 March 1999 could not be regarded as imposing a
   time-limit in relation to a request in an individual case.
46 Thirdly, Brookfield and Elaris take issue with the General Court for according the CPVO a measure of
   discretion by permitting it to clarify its requests in an individual case itself, without having recourse to
   the specific procedure provided for in Article 80 of Regulation No 2100/94, and for rejecting as
   irrelevant the allegation that the applicant for a Community plant variety right had acted in bad faith.
   Findings of the Court
47 As is apparent from paragraph 63 of the judgment under appeal, the General Court held that the
   CPVO has the right to define conditions which must be met if an application for a Community plant
   variety right is to be examined, provided that the period within which the applicant for that right
   must respond to the request made to him in the individual case has not expired.
48 On that basis, the General Court found, in exercising its jurisdiction to make appraisals, that: (i) the
   letter of 25 March 1999 constituted a request in an individual case relating to the documentary
   evidence concerning the plant material to be examined (paragraph 69 of the judgment under appeal)
   and (ii) the CPVO’s email of 13 June 2001 contained a request in an individual case for the
   submission of plant material, within the meaning of Article 55(4) of Regulation No 2100/94
   (paragraph 72 of the judgment under appeal). In that regard, the General Court held that the CPVO
   had not exceeded its discretion.
49 It cannot be claimed that, in so doing, the General Court erred in law.
50 It should be stated at the outset that the CPVO’s task is characterised by the scientific and technical
   complexity of the conditions governing the examination of applications for Community plant variety
   rights and, accordingly, the CPVO must be accorded a broad discretion in carrying out its functions
   (see, to that effect, Schräder v CPVO, paragraph 77). Furthermore, given that broad discretion, the
   CPVO may, if it considers it necessary, take account of facts and evidence which are submitted or
   produced out of time (see, by analogy as regards OHIM, Case C-29/05 P OHIM v Kaul [2007]
   ECR I-2213, paragraph 42).
   ECLI:EU:C:2012:813                                                                                         7
 ---pagebreak---                                         JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                               BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
51 Moreover, the CPVO – as a body of the European Union – is subject to the principle of sound
   administration, in accordance with which it must examine all the relevant particulars of a case with
   care and impartiality and gather all the factual and legal information necessary to exercise its
   discretion. Moreover, it must, as the General Court pointed out in paragraph 64 of the judgment under
   appeal, ensure the proper conduct and effectiveness of proceedings which it sets in motion.
52 In the light of those findings, it should first be borne in mind that, under Article 55(4) of Regulation
   No 2100/94, the CPVO is to 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.
53 In view of the discretion which the CPVO enjoys, Article 55(4) of Regulation No 2100/94 cannot be
   interpreted as preventing it from making a separate request for plant material to be examined and for
   documentary evidence relating to that material. Accordingly, as the General Court pointed out in
   paragraph 69 of the judgment under appeal, without being contradicted on that point by Brookfield
   and Elaris, the letter of 25 March 1999 related to the quality of the plant material to be examined
   and, under Article 55(4) of Regulation No 2100/94, a request in an individual case may relate,
   precisely, to quality.
54 Secondly, it cannot be claimed that the General Court erred in law in holding that the CPVO had the
   right to make a new request for submission of plant material to be examined.
55 In the light of the principle of sound administration and the need to ensure the proper conduct and
   effectiveness of proceedings, and inasmuch as the CPVO found – as emerges from paragraph 74 of
   the judgment under appeal and is not disputed, moreover, by Brookfield and Elaris – that its initial
   request lacked precision, it was for the CPVO to ask KSB to send it plant material which met the
   requirements set in a new request in an individual case.
56 In that respect, first, Brookfield and Elaris are not justified in claiming that the General Court ought to
   have held that, on the basis of Article 61(1)(b) of Regulation No 2100/94, the CPVO was required to
   refuse KSB’s application for a Community plant variety right. Article 61(1)(b) of Regulation
   No 2100/94 applies where the CPVO finds that the applicant has not complied with a request in an
   individual case within the time-limit laid down. As it was, in the present case, as the General Court
   rightly found, the CPVO took the view that KSB was unable to comply with the initial request in an
   individual case because of its lack of precision. Consequently, the CPVO could not refuse the
   application for a Community plant variety right submitted by KSB without erring in law.
57 Secondly, as regards the contention of Brookfield and Elaris that the General Court should have taken
   KSB’s bad faith into consideration, it should be noted that Brookfield and Elaris have not specified to
   what extent the General Court erred in law by holding, in paragraph 80 of the judgment under
   appeal, that KSB’s conduct was unconnected with the issue of whether the CPVO had the power to
   clarify its requests in an individual case.
58 Moreover, it should also be noted that Brookfield and Elaris adduce no evidence capable of calling that
   assessment into question.
59 As regards, lastly, the alleged infringement of Article 80 of Regulation No 2100/94, it is sufficient to
   state that that provision concerns only cases in which the applicant for a Community plant variety
   right has been unable to observe a time-limit vis-à-vis the CPVO. In the present case, it is common
   ground that the various requests in an individual case which were addressed to KSB after its
   application for a Community plant variety right were made in connection with the same proceedings,
   on account of the lack of precision of the CPVO’s first request for the submission to it of the material
   and the documents necessary for the examination of that application. It follows that Article 80 of
   Regulation No 2100/94 does not apply in circumstances such as those of the present case.
   8                                                                                         ECLI:EU:C:2012:813
 ---pagebreak---                                       JUDGMENT OF 19. 12. 2012 – CASE C-534/10 P
                              BROOKFIELD NEW ZEALAND AND ELARIS v CPVO AND SCHNIGA
60 Accordingly, the second ground of appeal must be rejected as unfounded.
61 It follows from all the foregoing considerations that the appeal must be dismissed.
   Costs
62 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of
   Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been
   applied for in the successful party’s pleadings. Since the CPVO has applied for costs and Brookfield
   and Elaris have been unsuccessful, Brookfield and Elaris must be ordered to pay the costs.
   On those grounds, the Court (First Chamber) hereby:
   1.    Dismisses the appeal;
   2.    Orders Brookfield New Zealand Ltd and Elaris SNC to pay the costs.
   [Signatures]
   ECLI:EU:C:2012:813                                                                                 9