CELEX: 51990PC0347
Language: en
Date: 1990-08-30
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON COMMUNITY PLANT VARIETY RIGHTS

COMMISSION OF THE EUROPEAN COMMUNITIES
                              C0M(90) 347 final
                              Brussels,  30 August 1990
                    Proposal for a
               COUNCIL REGULATION (EEC)
          on Community plant variety rights
            (presented by the Commission)
 ---pagebreak---                                 - 2-
                      EXPLANATORY MEMORANDUM
i. The subject
   The proposed Regulation is one of the measures contained in
   the Commission's White Paper of 1985 for completing the
   internal market in the field of agrioulture.
   Its subject is the establishment, at Community level, of a
   speoial form of industrial property rights for the development
   of new plant varieties. It shall ensure a proper reward to
   plant breeders for their respective achievements, and
   constitute an incentive for further developments. It is based
   on a system set up by UPOV (Union pour la Protection des
   Obtentions Végétales) and implemented at national level by the
   contracting parties thereto, including the majority of the
   Member States of the Community.
2. The objectives
   The proposed system is considered to be an important
   instrument to promote the continued breeding of Improved plant
   varieties, as an essential element of technical progress to
   increase agricultural productivity.
   It seeks
       to adapt the current situation determined by various
       national plant variety protection laws to the
       circumstances of the single market, and
       to strengthen, in the light of the development of new
       breeding methods such as biotechnology, the protection
       available to plant breeders.
 ---pagebreak---                                  - 3-
   Under this system,  breeders would be able to aoquire, upon a
   single application  and through a single decision, direot and
   uniform protection  throughout the Community for varieties of
   all botanical taxa  and hybrids -of taxa.
3. The structure
   The proposed rules are subdivided in four main seotions:
       the section on substantive law (Artioles 5 - 28)
       the section on operational law (Articles 29 - 88)
       the section on impact on other laws (Articles 89 - 103)
       the section on financial and institutional aspeots
       (Articles 104 - 110).
4. The substantive law
   It lays down the conditions for the grant of Community plant
   variety rights (Article 5 - 12), in particular distinctness,
   uniformity, stability and novelty of the variety oonoerned and
   personal entitlement.
   It defines the uniform effects of the right granted (Artioles
   13 - 15) and confirms both the internationally reoognlzed
   principle of "breeders' exemption" for new varieties developed
   from protected varieties, and the accepted praotioe of
   "agricultural exemption" for farm-saved seed.
   It establishes rules on the use of variety denominations
   (Articles 16, 17) and fixes the period of protection and other
   criteria for termination (Articles 18 - 20).
   It determines the status of the right granted as an objeot of
   property of the holder (Articles 21 - 27) and provides for a
   system of compulsory licencing (Article 28).
 ---pagebreak---                                   - 4-
5. The operational law
   The implementation of the Community plant variety rights
   system would be entrusted to a "Community Plant Variety
   Office".
   Its status, duties, structure and management are defined
   following examples in the field of other industrial property
   rights (Articles 29 - 37).
   An Administrative Council, consisting of representatives of
   Member States and the Commission, is proposed in order to
   advise the Office and to monitor its activities (Articles 38 -
   43).
   Community judicial protection is ensured through "Boards of
   Appeal" and reference to the Court of Justice of the European
   Communities (Articles 44 - 47, 72).
   The proposal also provides for appropriate rules of procedure
        before the Office as such, in respect of applications
        (Articles 48 - 51), of the administrative and teohnioal
        examination thereof (Articles 52 - 59) and of its
        decisions (Articles 6 0 - 6 2 ) and follow-up-actions
        (Articles 63 - 65), and
        before the Boards of Appeal (Articles 6 6 - 7 1 ) .
   It finally refers to a number of generally accepted principles
   of legal proceedings (Articles 73 - 79).
   This section is completed by certain provisions relating to
   the fees to be charged by the Office (Articles 80 - 83), and
   also to a Register of Community Plant Variety Rights and other
   means of information (Articles 84 - 88).
6. Impact on other laws
   The system lays down certain provisions defining the
   relationship to national plant variety rights and - based on
   existing international commitments of Member States - to
   patents (Articles 89, 90).
 ---pagebreak---                                - 5-
   It identifies civil law claims derived from the proposed
   system, in particular in cases of infringements (Artioles 91 •
   96), and refers to the relevant international and national
   rules on jurisdiction and procedure in legal actions arising
   out of such claims (Articles 97 - 102). Some amendments to
   national penal laws are also necessary (Article 103).
7. Financial and institutional aspects
   The proposed budget system is inspired by earlier proposals.
   Mixed financing through fees and subsidies from the general
   budget of the Community is at first envisaged with the aim of
   moving later towards self-financing of the Office's variable
   costs (Articles 104 - 107).
   Finally, rules for the adoption of secondary Community
   provisions in accordance with established procedures are
   provided for (Articles 108 - 110).
 ---pagebreak---                                         - 6 -
                                   Proposal for a
                              COUNCIL REGULATION (EEC)
                         on Community plant variety rights
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and
in particular Article 43 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the Economic and Social Committee,
Whereas  the continued breeding of      Improved plant  varieties  is an essential
element of technical progress to increase agricultural productivity;
Whereas measures for promoting such breeding should be supported;
Whereas   an   important  instrument  for  these  purposes  is the   creation   of   a
Community plant variety right;
Whereas the system of Community plant variety rights must adapt the present
situation, under which only national plant variety rights are available, to
Community    conditions  and,   in  particular,  ensure  that  plant   breeders    can
acquire, through a single decision, direct and uniform protection in the whole
of the Community;
 ---pagebreak---                                               - 7 -
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    taxa   and    hybrids   of   taxa    should    be
protectable;
Whereas    protectable     varieties     must   comply   with    internationally      recognized
requirements,     I.e. distinctness, homogeneity, stability and novelty, and also
be labelled with 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    the    term
"variety" shall be considered to mean an entity as traditionally and commonly
understood by plant breeders, plant users and related                   institutions; whereas
consequently     that   entity     must   be   broader    than   that   which    satisfies     the
conditions    governing     the grant     of Community     plant   variety    rights    in full,
without    however    equalling     a   botanical    taxon,    and   it  must    meet   all    the
specifications      set   up    in  the   relevant    definition    and    does   therefore     in
particular not extend to single cells or parts thereof nor to cell-lines;
Whereas this definition          is not   intended to alter definitions which may have
been established      in the field of other        industrial property rights, especially
the patent     field,    nor   to   Interfere with     or   exclude    from  application      laws
governing the protectabiIity of products, including plants and plant material,
or processes under such other industrial property rights;
 ---pagebreak---                                      - 8 -
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;
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, particularly if the new variety, although distinct,
 Is, from a commercial point of view, an Imitation of the source variety, a
certain form of dependency should be created;
 ---pagebreak---                                       - 9 -
Whereas, the exercise of Community plant variety rights must be subjected to
restrictions laid down In provisions adopted In the public interest; whereas,
these Include assuring agricultural production;
Whereas the Commission must ensure that the conditions therefor are laid down
at  Community  level  either  by Community   law or   possibly  through binding
agreements or otherwise; whereas compulsory licensing should also be provided
for under certain circumstances;
Whereas the use of prescribed variety denominations should be made obligatory;
Whereas the Community plant variety right should In principle have a life of 30
years and In the case of certain woody genera with longer development times, 50
years; whereas other grounds for termination must be worked out;
Whereas a Community plant variety right is an object of the holder's property
and  its rôle  In relation to the non-harmonised    legal provisions of 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;
 ---pagebreak---                                      - so -
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;
Whereas the Implementation of the Community plant variety rights system should
be entrusted, following the example of concepts established In other Industrial
property rights, to a central office, the "Community Plant Variety Office";
Whereas the duties and powers of the 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 similar 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
there should be mixed financing with the aim later of self-financing of at
least the Office's total variable costs, but not necessarily its fixed costs
such as staffing and accommodation*, whereas Community jurisdiction should be
ensured ;
Whereas the Office should be advised and supervised by the aforementioned
Administrative Council, composed of representatives of Member States and the
Commission;
 ---pagebreak---                                      - 14 -
Whereas this Regulation takes Into acount existing     International systems as
established by the International Convention for the Protection of New Varieties
of Plants (UPOV-Convent Ion) or the Convention on the Grant of European Patents
(European Patent Convention);
Whereas this Regulation should be amended as necessary in the light of future
developments in the aforementioned systems, or of the negotiations In the GATT
on trade-related intellectual property rights,
HAS ADOPTED THIS REGULATION:
 ---pagebreak---       - 12 -
     PART ONE
General provisions
 ---pagebreak---                                       - 13 -
                                    Article 1
                         Community plant variety rights
For plant varieties as a result of breeding or discovery, a system of Community
plant variety rights Is hereby established as the sole and exclusive form of
Community industrial property rights.
                                    Article 2
                Uniform effect of Community plant variety rights
Community plant variety rights shall have uniform effect    in the territory of
the Community and may not be granted, transferred or terminated in respect of
the abovementloned 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, provided that this is not
excluded by Article 89(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.
 ---pagebreak---     - 14 -
   PART TWO
Substantive law
 ---pagebreak---                               - 15 -
                            CHAPTER I
Conditions governing the grant of Community plant variety rights
 ---pagebreak---                                          - 16 -
                                       Article 5
                     Object of Community plant variety rights
1.   Varieties of all botanical taxa and hybrids of taxa may form the object of
     Community plant variety rights.
2.   For the purpose of this Regulation, "variety" shall be taken to mean any
     group of plants as well as parts of those plants as far as they comprise
     more than a cell or cell line and are usable for the production of plants,
     both referred to hereinafter as "Individuals", provided that:
     (a)    it may be defined as an entity on the basis of the expression of the
            characteristics of Its individuals or of a particular distribution
            of such expressions in its individuals,
     (b)    the  expressions    of   the  characteristics  of   its   Individuals   are
            hereditary, or reproduceable In using repeatedly individuals of its
            components, and
     (c)    the   combination   of   expressions   of  the  characteristics     of  Its
            Individuals   is not distinctive for all     individuals of a botanical
            taxon.
      In cases   where   the  commercial    use of   a variety  does   not   imply  the
     production of entire plants, "plants" within the meaning of             the above
     definition shall be taken to mean those parts of plants which have to be
     produced for the purpose of using the variety.
                                       Article 6
                                 Protectable varieties
Community plant variety rights shall be granted        in respect of varieties that
are:
(a)   distinct,
(b)  homogeneous,
(c)  stable and
(d)  new, and
(e)  for which a variety        denomination    exists which   is   suitable   pursuant
     to Article 62.
 ---pagebreak---                                            - 17 -
                                        Article 7
                                      Distinctness
1.   A variety shall be deemed to be distinct If its individuals either in the
     aggregate    or   on   the basis   of   a   particular   distribution   are  clearly
     distinguishable by the expression of at least one important characteristic
     from the Individuals of any other variety whose existence Is a matter of
     common    knowledge    on  the  date   of    application   determined   pursuant  to
     Article 50.
2.   The existence of another variety shall be deemed to be a matter of common
     knowledge,     In  particular,    if on    the   date   of  application   determined
     pursuant to Article 50:
     (a)     it was entered In an official register of plant varieties;
     (b)    an application for Its Inclusion In an official register of plant
            varieties was filed, provided the application has been granted in
            the meantime, or
     (c)    one or more of the acts set out          In Article 13(2) were notoriously
            effected for commercial purposes with Individuals thereof.
                                        Article 8
                                       Homogeneity
A variety shall be deemed to be homogeneous if Its Individuals, either in the
aggregate   or   on  the basis of     a particular      distribution,  are   sufficiently
uniform in the expression of each important characteristic, apart from a small
number of deviations, having regard to the particular features of reproduction
or propagation.
                                        Article 9
                                        Stab Ility
1.   A variety shall be deemed to be stable If Its individuals, either in the
     aggregate or on the basis of a particular distribution, correspond in each
      important    characteristic    after    each    propagation   or  each    cycle  of
     propagation     to   the expression    that   is distinctive of     the variety   In
     question.
 ---pagebreak---                                        - 18 -
2. For the purposes of granting Community plant variety rights, It shall be
   assumed   that   the   requirements   of   paragraph 1 are    satisfied   where   It
   emerges from the technical examination pursuant to Articles 54 and 55 that
   there Is no Indication that the variety will not be stable.
                                    Article 10
                                      Novelty
1. A variety    shall   be deemed   to be new      if, at   the date of    application
   determined   pursuant    to Article    50,   Individuals thereof   have not     been
   disposed of to others for commercial purposes or have been disposed of to
   others for commercial purposes only within the following periods of time:
   (a)   one year, within the territory of the Community;
   (b)   four years or,      In the case of vine and tree species, six years,
         outside the territory of the Community.
2. The disposal of individuals by the applicant or his predecessor            in title
   on the basis of a contractual or other           legal relationship   in which the
   applicant   or his predecessor      in title preserve the exclusive right of
   disposal of these and other individuals of the variety, in particular for
   purposes    solely    of   reproduction     or   propagation   of   this   variety,
   preparation or storage shall        not  be deemed     to constitute disposal     to
   others within the meaning of paragraph 1, provided no further disposal is
   made.
   Likewise, the disposal of individuals by one legal person to another legal
   person shall not be deemed to constitute disposal to others where one of
   them is part of the other or where both are part of the same third legal
   person, and provided no further disposal is made by the recipient.
 ---pagebreak---                                    - 19 -
3. For the purposes of paragraph 1, no account shall be taken of any disposal
   to others that occurred within one year before the beginning of the period
   laid down In paragraph 1, and If It was due to, or in consequence of:
   (a)   an  evident    abuse  to  the  prejudice  of   the  applicant   or  his
         predecessor In title, or
   (b)   the  fact   that   the applicant  or  his predecessor    in  title  had
         displayed   the variety   at  an official   or  officially   recognized
         exhibition within the meaning of the Convention on International
         Exhibitions.
 ---pagebreak---     - 20 -
   CHAPTER I I
Persons entitled
 ---pagebreak---                                       - 21 -
                                    Article 11
                 Entitlement to Community plant variety rights
1. The original    breeder or discoverer of the variety or his successor         in
   title shall be entitled to the Community plant variety right.
2. If two or more persons       have bred or    discovered   the variety   Jointly,
   entitlement shall be vested jointly in them or their respective successors
   in title.
3. Where a variety is derived essentially from individuals of only one other
   variety   (source variety) for which a Community       plant variety right has
   been granted under this Regulation, entitlement to the right referred to
   in paragraph 1 shall likewise be vested jointly in the holder of the plant
   variety right in respect of the source variety and the original breeder or
   discoverer of the derived variety, or his successor, if:
   (a)   the derived variety is the result of a mutation, or
   (b)   the derived variety exhibits predominantly the same expressions of
         most of the important characteristics as the source variety, and no
         evidence     is  available   of  an   impact  on   economically   relevant
         characteristics as compared to the source variety.
4. Where   not   a Community   plant  variety  right  but   a national   industrial
   property    right  has been granted    In one of   the States   referred   to in
   Article 12(1) to another party for the source variety, the provisions of
   paragraph 3 shall apply mutatis mutandis, providing the law of the State
   concerned contains a provision comparable to paragraph 3.
 ---pagebreak---                                          - 22 -
5. If the breeder      or   discoverer    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.
6. Where entitlement to a Community plant variety right is vested Jointly In
   two or more persons pursuant to paragraphs 2 to 5, one or more of them may
   empower   the   others    by   written   declaration   to  such    effect to   claim
   entitlement thereto.
7. For the purposes of proceedings before the Office, the first applicant
   shall be deemed to be entitled to claim the entitlement to the Community
   plant variety right. This shall not apply if the Office is aware, by the
   time the decision on the application for grant of the Community                plant
   variety right Is taken, or it Is shown by a final judgment delivered with
   regard   to   a   claim    for  entitlement    pursuant   to   Article 95(4),   that
   entitlement Is not or is not solely vested in the first applicant. Where,
   in the event referred to in the second sentence, the identity of the sole
   or other person entitled has been determined, the             latter may enter   the
   proceedings as applicant.
                                      Article 12
                  Entitlement to file an application for grant
                        of a Community plant variety right
1. An application for grant of 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 another State
          party to the UPOV Convention or are domiciled or have their seat or
          an establishment in such a State;
 ---pagebreak---                                    - 23 -
   (b)   nationals of any other State or are domiciled or have their seat in
         such a State, In so far as the Commission, after obtaining the
         opinion of   the Administrative Council, 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 also be filed Jointly by two or more applicants.
3. Persons who are not domiciled or do not have a seat or an establishment
   within the territory of the Community may participate       in 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.
 ---pagebreak---                    - 24 -
               CHAPTER III
Effects of Community plant variety rights
 ---pagebreak---                                     - 25 -
                                   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 referred to as
   "the holder", shall be entitled to effect the acts set out in paragraph 2
   In respect of the variety.
2. All other persons shall be prohibited, without prejudice to the provisions
   of   Articles 14 and 15,   save   with  the   consent   of   the  holder,   from
   reproducing or propagating the variety or from offering, disposing of to
   others,   using  or  Importing    into  the  Community,    exporting  from   the
   Community or possessing for any of the abovementloned purposes Individuals
   or other parts of plants or harvested material of the variety or products
   obtained directly therefrom, all, i.e. Individuals, other parts of plants
   or   harvested  material   and   products   directly   obtained,   referred   to
   hereinafter as "material".
3.  If in the case of Article 11(3) no Community plant variety right has been
   granted for the derived variety, all other persons shall be prohibited,
   save with the consent of the holder of the source variety, from effecting
   acts of the type set out in paragraph 2 in respect of the derived variety.
4. 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; or    the
   safeguarding of competition, trade and agricultural production.
 ---pagebreak---                                         - 26 -
     For the purpose of safeguarding agricultural production          In the case of
     plant species governed by Community rules on the marketing of seeds or
     other propagating material, authorization may be given at Community level
     and In accordance with the procedure laid down in the Implementing rules
     pursuant to Article 109, to permit growers of propagating material of a
     variety for which a Community plant variety right has been granted to
     plant on their own holding harvested material obtained therefrom. Such
     authorization may be given only under conditions which shall be set up In
     an   appropriate   manner   at   Community   level,  upon   initiative   of   the
     Comm i ss i on.
                                      Article 14
           Limitation of the effects of Community plant variety rights
The rights conferred by a Community plant variety right shall not extend to:
     (a)    acts relating to products that do not constitute material;
     (b)    acts effected privately and for non-commercial purposes;
     (c)    acts effected for experimental purposes;
     (d)    acts   effected  for   the purpose    of  discovering   or  creating   new
            varieties;
     (e)    without prejudice to the provisions of Article 13 paragraph 3, acts
            effected for the purpose of using the new varieties discovered or
            created pursuant to subparagraph (d), unless
                individuals of the protected variety have to be used repeatedly
                for the production of the new variety for commercial purposes, or
            -   he new variety or the material of this variety comes under the
                protection  of   a   property   right  which   does   not  contain   a
                comparable provision;
     f)     acts whose prohibition would violate the provisions laid down in
            Article 13(4).
 ---pagebreak---                                       - 27 -
                                   Article 15
                 Exhaustion of Community plant variety rights
1. The rights conferred by a Community plant variety right shall not extend
   to acts    Involving  individuals of the variety that were disposed of to
   others In any part of the Community by the holder or with his consent.
   This   shall  also be applicable      In respect    of other   material   that  was
   disposed of to others pursuant to the first sentence or that was obtained
   from Individuals as referred to In the first sentence.
2. Paragraph 1 shall not apply where the individuals have been or are being
   used as propagating material       for the production of further        individuals
   without having been intended for that purpose when they were disposed of.
                                   Article 16
                          Use of variety denominations
1. Anyone who offers or disposes of to others for commercial purposes within
   the   territory   of  the Community     propagating   material  of    a variety  in
   respect of which a Community plant variety right has been granted must
   state the variety denomination designated for the variety; where              it Is
   stated     in   writing,   the    variety    denomination     shall    be   readily
   distinguishable and clearly legible. The first sentence shall also apply
    In respect of other material of the variety, If this Is required either
   pursuant    to 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.
2. Paragraph 1 shall apply even after the termination of the Community plant
   variety right.
 ---pagebreak---                                    - 28 -
                                 Article 17
               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 prohibit the use of that
   variety denomination.
2. A third party may use a right granted In respect of a designation that Is
   identical  with  the variety denomination to prohibit    the use of  that
   variety denomination only If that right was granted to him before the
   variety denomination was designated.
3. Where a variety has been granted a Community plant variety right or, in a
   Member State or another State party to the UPOV Convention, a national
   property right, neither Its denomination nor any designation which might
   be confused with it can be used for another variety of the same botanical
   species or a species regarded as related pursuant to the publication made
   in accordance with Article 62(6) or for material of such variety.
 ---pagebreak---                           - 28 -
                        CHAPTER IV
Duration and termination of Community plant variety rights
 ---pagebreak---                                       - 30 -
                                    Article 18
                    Duration of Community plant variety rights
1.   The term of the Community plant variety right shall run until the end of
     the thirtieth calendar year, or, in the case of varieties of vine and tree
     species, until the end of the fiftieth calendar year, following the year
     of grant.
2.   A Community plant variety right shall lapse before the expiry of the terms
     laid down In paragraph 1 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.
                                    Article 19
                   Revocation of Community plant variety rights
The Office shall revoke a Community plant variety right with effect ab initio
if it is ascertained that the conditions laid down In Article 7 or 10 were not
complied with when the right was granted.
                                    Article 20
                  Cancellation of Community plant variety rights
1.   The Office shall cancel the Community plant variety right with effect In
     futurum   if    it  is  ascertained  that   the  conditions  laid  down  in
     Article 8 or 9(1) are no longer complied with.     If it is discovered 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.
 ---pagebreak---                                    - 31 -
2. The Office may    cancel  a Community   plant  variety   right with  effect
   In futurum If the holder:
   (a)   has not fulfilled an obligation under Article 63(3),
   (b)   In the case referred to in Article 65, neither proposes another
         variety  denomination   nor  consents   to  a   variety  denomination
         designated by the Office of its own motion,
   (c)   falls to pay within a period of grace such overdue fees as may be
         payable to maintain the Community plant variety right, or
   (d)   either as the initial holder or as a successor in title as a result
         of a transfer pursuant to Article 22 other than mortis causa, no
         longer satisfies the conditions laid down In Article 12.
 ---pagebreak---                         - 32 -
                      CHAPTER V
Community plant variety rights as objects of property
 ---pagebreak---                                         - 33 -
                                     Article 21
                         Assimilation with national laws
1. Save where otherwise      provided    in Articles 22 to 28, 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
   industrial 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    Member State     In    which     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 State
   referred to in paragraph 1 shall be the Member State in which the seat of
   the Office is located.
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
   shalI be applicab le.
 ---pagebreak---                                     - 34 -
                                   Article 22
                                    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. 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. Otherwise It
     shaII be voId.
3.   Save as otherwise provided In Article 96, 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 23
                               Levy of execution
A Community plant variety right may be levied In execution.
 ---pagebreak---                                          - 35 -
                                      Article 24
                          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 25
          The application for grant of a Community plant variety right
                              as an object of property
Articles 21   to 24 shall apply to applications for grant of Community           plant
variety rights.
                                      Article 26
                          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 limitations attached     to his exploitation    right  pursuant   to
     paragraph 1.
                                      Article 27
                                  Joint holdership
Articles 21 to 26 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.
 ---pagebreak---                                        - 36 -
                                     Article 28
                         Compulsory exploitation rights
1. Where the holder refuses to allow another party to effect acts of the kind
   referred to in Article 13(2) subject to reasonable conditions, the Office
   shall grant entitlement (compulsory exploitation right) to the other party
   upon   application   to   effect   such   acts,   provided    it   considers,   after
   consulting the Administrative Council, this to be:
   (a)    economically acceptable to the holder and
   (b)    required in the public interest, in particular to supply the market
          with material offering specified features.
2. On application by one or more Member States, by the Commission or by an
   organization set up at Community level and approved by the Commission for
   that   purpose,   a   compulsory    exploitation     right   may    be   granted,  in
   accordance with the requirements set out           In paragraph 1(a) and (b) and
   with  the consent of     the Administrative Council, to persons            satisfying
   certain   requirements    or   to  anyone    in one    or  more    Member States   or
   throughout the Community.
3. The  Office   shall,    when   granting    the   compulsory    exploitation    right,
   stipulate the type of acts covered and the conditions pertaining thereto,
   In particular the level of the payment to be made to the holder.               On the
   expiry   of  each   one   year   period   after   the   grant   of    the  compulsory
   exploitation right, any of the parties 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 considerable
   change.
4. National compulsory exploitation rights may not be granted In respect of a
   Community plant variety right.
 ---pagebreak---               - 37 -
            PART THREE
The Community Plant Variety Office
 ---pagebreak---       - 38 -
     CHAPTER I
General provisions
 ---pagebreak---                                        - 3? -
                                    Article 29
                           Legal status, sub-offices
1. The Office shall be a Community agency and shall have legal personality.
2. The seat of the Office shall be located at       •••.
3. 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.       For these purposes, the Office shall be
   represented by its President.
4. With the consent of the Administrative Council, 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 30
                                       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, but
   without prejudice to the application of Article 46 to the members of the
   Board of Appeal.
2. Without prejudice to Article 36, 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 relation to its own
   staff.
 ---pagebreak---                                         - 40 -
                                     Article 31
                             Privileges and Immunities
The Protocol on the Privileges and Immunities of the European Communities shall
apply to the Office.
                                     Article 32
                                      LlabiIity
1.   The contractual    liability of    the Office shall   be governed   by the   law
     applicable to the relevant contract.
2.   As regards 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 employees        in the performance of
     their duties.
3.   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 and in disputes relating to compensation
     for any such damage as is referred to in paragraph 2.
4.   The personal  liability of employees towards the Office shall be governed
     by the provisions laid down In the Staff Regulations or in the Conditions
     of Employment of other Servants.
                                     Article 33
                                      Languages
1.   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.
 ---pagebreak---                                    - 41 -
2. The persons participating In the procedure of the Office shall be entitled
   to conduct written and oral proceedings in any official language of the
   Community with translation and,    In the case of hearings, simultaneous
   interpretation Into the working languages of the Office and those of the
   persons participating in the procedure In accordance with the Implementing
   rules pursuant to Article 109.
 ---pagebreak---                                    - 42 -
                                Article 34
                          Decisions of the Office
1. Decisions of the Office pursuant to Articles 19, 20, 60, 61     and 62 and
   decisions on objections lodged pursuant to Article 58, shall, provided
   they do not have to be made by the Board of Appeal, be taken by a
   committee of   three employees, two of whom must     have prior   technical
   training and one of whom must be a qualified lawyer.    However, until the
   decision Is taken, one member of the committee shall normally be charged
   with handling the case. The hearing shall be held before the committee
   Itself.
2. The committees may consult experts who are Independent of the parties
   concerned, Including those who were responsible for examining the variety.
   The Administrative Council may determine under what circumstances such
   experts should be heard at the request of a party concerned.
3. The President shall determine how many committees pursuant to paragraph 1
   should be formed using the employees available to the Office, and shall
   decide on the work allocation.
4. Other decisions of the Office shall be taken by the President or by a
   member of the Office's staff designated by him.
 ---pagebreak---            - 43 -
         CHAPTER
Administration of the Office
 ---pagebreak---                                              - 44 -
                                         Article 35
                                       The President
1. The Office shall be managed by the President.
2. The  President    shall    have,     in particular,       the   following    functions  and
   powers:
   (a)   he   shall   be   responsible          for  carrying   out   the  decisions   of  the
         Administrative Council;
   (b)   he shall     take all      appropriate        action,   including   the adoption of
          Internal    administrative            Instructions     and   the    publication   of
         communications, to ensure the proper operation of the Office-,
   (c)   he may place before the Administrative Council draft amendments to
         this Regulation, to the provisions referred to in Articles 108 and
         109 or     to any other         rules      relating   to Community     plant  variety
         rights;
   (d)   he shall draw up the estimates of revenue and expenditure of the
         Office    pursuant     to Article 105(1) and            shall   execute   the  Office
         budget ;
   (e)   he shall submit a management report to the Administrative Council
         each year-,
   (f)   he shall exercise the powers conferred by Article 30(2);
   (g)   he may delegate his functions and powers.
3. One or more Vice-Presidents may be appointed to assist the President.                    If
   the President is unable to act, the Vice-President or Vice-Presidents will
   act in his place underbill** to be determined by the Administrative Council.
                      f~F~-' ~Â- f • "~* """•••
 ---pagebreak---                                          - 45 -
                                     Article 36
                         Appointment of senior officials
1. The President of the Office shall be appointed by the Commission from a
   list  of   at   most   three   candidates    which   shall   be   prepared   by   the
                                      •t
   Administrative Council. Power pto dismiss the President shall I le with the
   Commission, acting on a proposât from the Administrative Council.
2. The President shall be appointed for a term of office of at most 5 years.
   This term of office shall be renewable.
3. Vice-Presidents of      the Office     shall  be appointed    or   dismissed   as  In
   paragraphs 1 and 2, after consultation of the President.
4. The Commission shall exercise disciplinary authority over the President
   and Vice-presidents.
                                     Article 37
                                Control of legality
1. The Commission shall be responsible for legal supervision of those acts of
   the President that are not subject to legal control by another body under
   Community law.
2. The Commission shall require the alteration or cancellation of acts by the
   President that violate the law.
3. Any Member State, any member of the Administrative Council or any third
   party  who    Is  directly    and   personally    concerned,    may   refer  to   the
   Commission   any   act   of the President      pursuant  to paragraph 1, whether
   express or    implied, for the      legality of that act to be examined.          The
   matter must be brought before the Commission within fifteen days of the
   date on which the party concerned came to know of the contested act.              The
   Commission sha11 take a decision within a period of one month.              Where no
   decision   Is   taken   within   this    time-limit,   this  shall    be  deemed   to
   constitute rejection.
 ---pagebreak---           - 46 -
        CHAPTER 11 I
The Administrative Council
 ---pagebreak---                                   - 47 -
                                 Article 38
                            Creation and powers
1. An  Administrative  Council  to   the  Office is  hereby   established.  In
   addition to the powers assigned to the Administrative Council under this
   Regulation and under the provisions referred to in Articles 108 and 109,
   it shall exercise the powers set out in paragraphs 2 to 6.
2. The Administrative Council shall advise the President on matters within
   the competence of the Office and shall monitor its activities.
3. The Administrative Council may forward to the Commission with or without
   amendments the drafts submitted to it pursuant to Article 35(2)(c), or Its
   own draft amendments to this Regulation, to the provisions referred to in
   Articles 108 and 109 or to any other rules relating to Community plant
   variety rights.
4. Where  it considers  it to be necessary, the Administrative Council may
   deliver opinions and seek information.
5. The Administrative Council may establish rules on the working methods of
   the Office.
6. The Administrative Council shall adopt its own rules of procedure.
                                 Article 39
                 Composition of the Administrative Council
1. The Administrative Council shall be composed of one representative of each
   Member State and one representative of the Commission.   An alternate shall
   be appointed for each representative.
2. The members of the Administrative Council may, subject to the provisions
   of Its rules of procedure, be assisted by advisers or experts.
 ---pagebreak---                                        - 48 -
                                     Article 40
                                    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   duration  of   the   terms   of  office of   the   Chairman  and  the
      Deputy Chairman  shall   be  three years. The  terms of    office shall  be
      renewable .
                                     Article 41
                                      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 be entitled to
      vote.
3.    The Administrative Council shall hold an ordinary meeting once each 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.    The Administrative Council may Invite observers to attend its meetings.
5.    The secretariat for the Administrative Council shall be provided by the
      Office.
                                     Article 42
                                  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.
 ---pagebreak---                                   - 49 -
                                 Article 43
                                   Voting
1. The Administrative Council shall take Its decisions, other than those
   referred to In paragraph 2, by a simple majority of the votes cast.
2. The majority of three-quarters of the votes cast shall be required for the
   decisions which the Administrative Council    is empowered  to take under
   Articles 12(1)(b), 36(1) and (3), 38(5), 46(1) and 54(2).
3. The decisions of the Administrative Council shall have no binding force In
   the meaning of Article 189 of the Treaty.
 ---pagebreak---       - 50 -
     CHAPTER IV
The Boards of Appeal
 ---pagebreak---                                         - 51 -
                                      Article 44
                               Establishment and powers
1.   There shall be established within the Office one or more Boards of Appeal.
2.   The Boards of Appeal shall be responsible for deciding on appeals against
     the decisions referred to in Article 66.
                                      Article 45
                        Composition of the Boards of Appeal
The composition of the Boards of Appeal when deciding shall be as follows:
(a)   in the case of decisions of the Office taken solely on the basis of the
     examination pursuant to Articles 52 and 53, and decisions regarding entry
     of   information    in  and  removal  of   information  from  the  Register  of
     Community   Plant   Variety   Rights, two   legally-qualified members  and  one
     member with prior technical training;
(b)  for other decisions, two members with prior technical         training and one
      Iega11y-qua11f i ed member.
An alternate shall be appointed for each member.
 ---pagebreak---                                    - 52 -
                                  Article 46
             Independence of the members of the Boards of Appeal
1. The Chairmen of the Boards of Appeal and the other members thereof shall
   be appointed by the Commission for a term of office of five years on a
   proposal from the Administrative Council. They may not be removed from
   office during that term, unless there are serious grounds for such removal
   by decision of the Court of Justice of the European Communities, having
   been  seized   by  the  Commission   after   obtaining   the  opinion   of  the
   Administrative   Council. The   term   of  office   shall  be   renewable. The
   function of   the members of the Boards of Appeal         may be a part-time
   function.
2. The members of the Boards of Appeal shall be independent.       In making their
   decisions they shall not be bound by any Instructions whatsoever.
3. The members of the Boards of Appeal may not perform any other duties In
   the Office. The right to perform any other activity shall be determined In
   accordance with the provisions referred to in Article 30(1).
                                  Article 47
                           Exclusion and objection
1. Members of the Boards of Appeal may not take part           in determining any
   matter  In which they have a personal       Interest, or   In which they have
   previously been Involved as representatives of any of the parties, or if
   they participated in making 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 proceedings, he shall inform the Board of Appeal accordingly.
 ---pagebreak---                                   - 53 -
3. Members of the Boards of Appeal may be objected to by any party 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   has  submitted   applications  or   opinions   In
   proceedings.
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
   objected to shall be replaced by his alternate.
 ---pagebreak---            - 54 -
          PART FOUR
Proceedings before the Office
 ---pagebreak---   -   55   -
 CHAPTER I
AppiI cat Ions
 ---pagebreak---                                       - 56 -
                                    Article 48
                              Filing of applications
1. Applicants shall have the choice of submitting their application for grant
   of a Community plant variety right:
   (a)    either at the Office directly, or
   (b)    at one of the national agencies or sub-offices entrusted or set up
          pursuant to Article 29(4).
2. Where   the  application    Is submitted   to one   of  the  national  agencies
   referred to in paragraph K b ) , the latter shall take all necessary steps
   to ensure that the application is forwarded to the Office within two weeks
   of submission.     National   agencies may charge the applicant    a fee which
   should   not  exceed   the administrative costs     Incurred  in accepting  and
   forwarding the application.
3. Applications    that   have  not   reached   the Office  within  one  month  of
   submission to the national agency shall be deemed to have been withdrawn.
                                     Article 49
                        Conditions governing applications
1. Applications for grant of a Community plant variety right must contain at
    least the fol lowing:
    (a)   particulars Identifying the applicant;
 ---pagebreak---                                   - 57 -
(b)   the name of the original breeder or discoverer of the variety and an
      assurance that, to the best of the applicant's knowledge, no further
      persons  have been     Involved   In the breeding or      discovery   of  the
      variety; if the applicant is not, or not alone, the original breeder
      or discoverer, he shall      Indicate, and, on request of the Office,
      provide for the relevant documentary evidence, how the entitlement
      for  grant   of   the  Community    plant   variety  right   came   into  his
      possession;   if the variety Is derived essentially from          individuals
      of  only   one   other   variety,    the  source   variety   shall   also  be
      Indicated,    without    prejudice    to   the   information    pursuant   to
      paragraph 2(a);
(c)   a provisional designation for the variety-,
(d)   any other    Information   required by the Office for       the purpose of
      examining the application.
The following shall be supplied with the application:
(a)   a technical description of the variety;
(b)   a proposal for a variety denomination;
(c)   the credentials of any procedural representative.
However, the proposal     for a variety denomination may be submitted at a
later date, within a time-limit specified by the Office.
 ---pagebreak---                                      - 58 -
                                   Article 50
                              Date of appiI cat Ion
The date of an application for grant of a Community plant variety right shall
be the date on which the application was received by the Office pursuant to
Article 48(1)(a) or by the national agency or sub-office of the Office pursuant
to Article 48(1)(b), provided it contains at least the particulars enabling the
identity of the applicant to be determined and a technical description of the
variety is attached.
                                   Article 51
                                   Prior It les
1.   The priorities of applications shall be determined by dates of application
     or, In the case of applications received on the same date, according to
     the order in which they were received pursuant to Article 50, where this
     can be established.
2.    If the applicant or his predecessor     in title has already applied for a
     property right In respect of the variety in a Member State or In another
     State party to the UPOV Convention, and the date of application is within
     twenty-four 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 grant of 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
     grant of a Community plant variety right for the purposes of Articles 7,10
     and 11(7).
4.   Paragraphs 2 and 3 shall also apply       in respect of earlier  applications
      that were filed  in another   State, provided    the conditions set out   in
     Article 12(1)(b) are met on the date of application.
 ---pagebreak---                                   - 59 -
5. A claim for priority may be made only in the application.  The claim 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.
 ---pagebreak--- - 60 -
 CHAPTER I I
 Examination
 ---pagebreak---                                         - 61    -
                                       Article 52
                                  Formal examination
1.    The Office shall examine whether:
      (a)    the application has effectively been filed pursuant to Article 48;
      (b)    the application satisfies the conditions laid down in Article 49;
      (c)    documents   relating  to a claim      for  priority   have   been   submitted
             within the time-limit laid down in Article 51(5) and
      (d)    the  fees   due  pursuant   to Article     80  have  been    paid   within   a
             specif led 11me-1imit.
2.    If the application complies with the conditions for attribution of a date
      of  application   pursuant   to Article     50, but   does  not   comply   with   the
      conditions set out in Article 49, the Office shall give the applicant an
      opportunity to correct any deficiencies that may have been identified.
3.     If the application does not comply with the conditions for attribution of
      a date of application pursuant to Article 50 or is considered not to have
      been filed pursuant to Article 80 paragraph 2, the Office shall inform the
      applicant thereof directly, or, where this is not possible, by means of a
      publication as set out in Article 86.
                                       Article 53
                                Substantive examination
The Office shall verify whether the variety may be the object of a Community
plant variety right pursuant to Article 5, whether the variety              is new within
the meaning of Article 10 and whether         the applicant    is entitled     to file an
application pursuant to Article 12.       The Office shall verify the entitlement of
the applicant to Community plant variety rights pursuant to Article 11 only if
there are particular reasons for doubting such entitlement. The Office shall
also verify, whether the proposed variety denomination is suitable pursuant to
Article 62. For such purposes, it may avail           Itself of the services of other
bod i es.
 ---pagebreak---                                       - 62 -
                                    Article 54
                             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 52   and 53,   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 examination of
   varieties   of   the  species     concerned    by   the   Administrative   Council
   (Examination Offices).
2. Where   no  Examination    Office   within    the   meaning   of  paragraph 1   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 purposes of the examination. For the
   purpose of the provisions of this Chapter, such agencies or sub-offices
   shall be considered as Examination Offices.
3. The Office shall forward to the Examination Offices the numbers of copies
   of the application required by the implementing rules.
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 Is to be submitted.
5. Where the applicant makes a claim for priority pursuant to Article 51(2)
   or (4), he must submit the necessary material and any further documents
   required within two years of the date of application pursuant to Article
   50.   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 required within a specified time-limit.
 ---pagebreak---                                   - 63 -
                                Article 55
                   The conduct of technical examinations
1. Unless a different manner of technical examination to check fulfilment of
   the conditions laid down in Articles 7, 8 and 9 has been arranged, the
   Examination Offices shall, for the purposes of the technical examination,
   grow the variety or undertake any other investigations required.
2. If the Administrative Council has issued test guidelines or the Office has
   given  instructions for the conduct of the technical     examinations, the
   Examination Offices shall base the examinations thereon.
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 also have begun on the basis of an application
   for grant of 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 referred to in Article 54(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 also have begun on
   the basis of an application for grant of a national        property  right,
   provided the necessary material and any further documents required were
   submitted at the corresponding date.
 ---pagebreak---                                        - 64 -
6.    The Administrative Council may determine that the technical        examination
      for varieties of vine and tree species may begin at a later date.
7.    The growing pursuant to paragraph 1 shall last until the decision on the
      grant of the Community plant variety right becomes final.
                                     Article 56
                                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 of Articles 7 to 9 are met, a description of          the
      variety.
2.    The Office shall communicate the results of the technical examination 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   for  complementary
      examination,   unless  the   applicant,   who   shall  be  consulted,  objects
      thereto.
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 insofar as this Is approved by the Office.
                                      Article 57
                          Costs of technical examinations
The Office shall    pay the Examination Offices a fee        in accordance with  the
 implementing rules.
 ---pagebreak---                                        - 65 -
                                     Article 58
                                     Object Ions
1.    Any person may lodge a written objection to the grant of a Community plant
      variety right with the Office.
2.    Objectors shall be party to the proceedings for grant of the Community
      plant variety right in addition to the applicant.
3.    Objections may be based only on the contention that:
      (a)   the conditions laid down In Articles 7 to 11 are not satisfied;
      (b)   there   is an   Impediment   under Article 62(3) or(4) to a variety   /\
            denomination.
4.    Objections under paragraph 3 may be lodged:
      (a)   at any time prior to the grant of the Community plant variety right,
             In the case of paragraph 3(a);
      (b)   within three months of the publication of the variety denomination
            pursuant   to Article   86(1)(c),    in the case of  objections under
            paragraph 3(b).
                                      Article 59
              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 grant of
a Community plant variety right and if the objecting party files an application
for grant of the 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.
 ---pagebreak---  - 66 -
CHAPTER I I I
 Dec i s ions
 ---pagebreak---                                      - 67 -
                                    Article 60
                                      Refusal
1.   The Office    shall  refuse applications for grant   of  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 52
           which he was given an opportunity to correct within the time-limit
           not if led to him;
     (b)   has not compiled with a rule or request pursuant to Article 54(4) or
           (5) within the time-limit laid down, unless the Office has consented
           to non-submission;
     (c)   has not paid the due fee for the technical examination within the
           time-Mm it laid down, or
     (d)   has not proposed a variety denomination which is suitable pursuant
           to Article 62, or     in the case referred to    in Article 62(5) has
           objected to the variety denomination selected by the Office.
2.   The Office shall also refuse applications for grant of a Community plant
     variety right if:
     (a)    it establishes that the conditions it is required to verify pursuant
           to Article 53 have not been fulfilled, or
      (b)   it reaches the opinion on the basis of      the examination   reports
           pursuant to Article 56, that the conditions laid down in Articles 7,
           8 and 9 have not been fulfilled.
                                    Article 61
                                       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 Article 60, it shall grant the Community plant variety right.     The decision
must include an official description of the variety.
 ---pagebreak---                                        - 68 -
                                     Article 62
                               Variety denomination
1. Where   a   Community   plant   variety  right    is granted,  the Office  shall
   designate, for the variety in question, the variety denomination proposed
   by the applicant pursuant to Article 49, if it considers, on the basis of
   the examination made pursuant to the third sentence of Article 53, that
   this denomination is suitable.
2. A variety denomination is suitable, if there is no impediment pursuant to
   paragraphs 3 or 4.
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
          r ight 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 State party to the UPOV Convention, unless the other variety no
           longer  remains   in existence and     its denomination has acquired  no
          special significance;
    (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, or
 ---pagebreak---                                       - 69 -
   (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  discoverer    or  any   other  party  to
         proceedings.
4. There  is another    Impediment where, in the case of varieties which have
   already been entered
   (a)    In one of the Member States,
   (b)    in another state party to the UPOV Convention, 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 has been
   marketed there for commercial purposes, 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. Where the applicant does not propose a suitable denomination the Office
   shall designate a denomination of its own motion, provided the applicant
   does not object.
6. The Office shall publish the species which it considers "closely related"
   within the meaning of paragraph 3(c).
 ---pagebreak---                      - 70 -
                   CHAPTER IV
The maintenance of Community plant variety rights
 ---pagebreak---                                       - 71  -
                                    Article 63
                             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 54 and 55.
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 64
                     Report on the technical verification
1. At the request of the Office, or if it establishes that the variety is not
   homogeneous 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.
 ---pagebreak---                                    - 72 -
                                 Article 65
                   Amendment of the variety denomination
1. The Office  shall   amend  a variety  denomination   designated  pursuant to
   Article 62 if it establishes that the denomination does not satisfy, or no
   longer satisfies, the conditions laid down in Article 62 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 another variety
   denomination and shall otherwise proceed in accordance with Article 62.
3. Objections  may   be   lodged against   the  new   variety   denomination in
   accordance with Article 58(3)(b).
 ---pagebreak---  - 73   -
CHAPTER V
 AppeaI s
 ---pagebreak---                                      - 74 -
                                   Article 66
                           Decisions subject to appeal
1.   An appeal shall   lie from decisions of the Office which have been taken
     pursuant to Articles 19, 20, 60, 61, 62 and 65 as well as on decisions
     related to objections pursuant to Article 58, to fees pursuant to Article
     80, to the apportionment of costs pursuant to Article 82, to the entering
     or deletion of information In the Register pursuant to Article 84, to the
     public inspection pursuant to Article 85 and to publications pursuant to
     Article 86.   It shall have suspensive effect.
2.   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 allows separate appeal.
                                    Article 67
                  Persons entitled to appeal and to be parties
                              to appeal proceedings
Any party to proceedings who is adversely affected by a decision resulting from
such proceedings may appeal.    The other parties to those proceedings and the
Office shall be party to the appeal proceedings.
                                    Article 68
                          Time-limit and form of appeal
Notice of appeal shall be filed in writing at the Office within two months of
the notification of the decision from which the appeal is made and a written
statement setting out the grounds of appeal shall be filed within four months
after notification of the decision.
 ---pagebreak---                                           - 75 -
                                        Article 69
                                  Interlocutary revision
1.    If the body of the Office which has prepared the decision considers the
      appeal to be admissible and well-founded, it shall rectify its decision.
      This shall not apply where the appellant          is opposed by another party to
      the proceedings.
2.    If   the  appeal     is not  allowed   within  one month   after  receipt  of  the
      statement    of   grounds,  it shall    forthwith  be remitted   to the Board   of
      Appea I.
                                           Article 70
                                  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 file observations on notifications issued by itself
      or on commun!cat ions from the other parties within specified time-limits.
                                         Article 71
                                    Decision on appeal
The Board of Appeal shall decide on the appeal on the basis of the examination
carried out pursuant to Article 70. 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,
 insofar as the facts are the same, be bound by the ratio decidendi of the Board
of Appeal.
 ---pagebreak---                                     - 76 -
                                  Article 72
                                Further appeal
1. A further appeal to the Court of Justice of the European Communities shall
   lie from decisions of the Board of Appeal.       Such further appeals shall
   have suspensive effect.
2. The   further  appeal  may be   lodged 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 further appeal may be made by any party to the proceedings before the
   Board of Appeal    who  is adversely affected by    its decision, or by the
   Commission or the Office.
4. The further appeal shall be lodged with the Court of Justice within two
   months of notification of the decision of the Board of Appeal.
5. The Office may intervene in the proceedings before the Court of Justice.
    It may also present observations without intervening in the proceedings.
6.  If the Court of Justice remits the case for further action to the Board of
   Appeal, the Board shall, in so far as the facts are the same, be bound by
   the ratio decidendi of the Court of Justice.
 ---pagebreak---                    - 77 -
                  CHAPTER VI
Miscellaneous conditions governing proceedings
 ---pagebreak---                                       - 78 -
                                    Article 73
               Statement of grounds on which decisions are based,
                                r ight of audience
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 Involved have had an opportunity to present their comments.
                                    Article 74
   /
            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 53 and 54.   It may disregard facts or items of evidence which have not
been submitted In due time by the parties involved.
                                     Article 75
                                 Oral proceedings
1.    If the Office considers oral proceedings to be expedient, they shall be
     held either on the initiative of the Office itself or at the request of
     any of the parties to the proceedings.
2.   Without prejudice to paragraph 3, oral proceedings before the Office shall
     not be pub Iic.
3.   Oral  proceedings before the Board of Appeal     including delivery of  the
     decision, shall be public insofar 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 proceedings.
 ---pagebreak---                                    - 79 -
                                  Article 76
                              Taking of evidence
1. In any proceedings before the Office, the means of giving or obtaining
   evidence shall include the following:
   (a)   hearing the parties;
   (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, 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 88(2).
4. A party, 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 88(2), request the competent       judicial or other
   authority to hear the evidence of that person.
 ---pagebreak---                                            - 80 -
5.   If a party, 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 take the evidence       in binding     form and    to
     permit   a member     of   the Office to attend       the hearing    and question      the
     party, witness or expert either through that judicial or other authority
     or directly.
                                          Article 77
                                            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 78
                                   Restitutio In integrum
 1.  Where,    in    spite    of   having    taken   all   due  care   in    the    particular
      circumstances, the applicant or holder or any 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.
 ---pagebreak---                                          - 81 -
2. Applications shall be filed in writing within two months after the cause
   of    non-compliance when       the t i me-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
   t i m e - M m it 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.
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 51(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 79
                             Reference to general principles
1.  In    the     absence   of  procedural   provisions    in this    Regulation    or    in
   provisions adopted pursuant to this Regulation, the Office shall refer to
   the principles of procedural           law which are generally     recognized    in the
   Member States.
2. Article 47 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 66,
   and to the staff of the Examination Offices, in so far as it participates
    in measures for the preparation of such decisions.
 ---pagebreak---          - 82 -
       CHAPTER VI I
Fees, settlement of costs
 ---pagebreak---                                    - 83 -
                                 Article 80
                                     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 108.
2. If fees due in respect of the official acts set out In Article 108(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 filed 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
   decision is based on facts the raising of which was delayed.
 ---pagebreak---                                               - 84 -
                                            Article 81
                          Termination of financial obligations
1.   The Office's right to require payment of fees shall lapse after four years
     from   the end of       the calendar        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 effect to Interrupt the time-
     limit   specified      in paragraph       1, and a written       and   reasoned   claim  for
     refund    shall    have     effect     to    interrupt    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 in the meantime
     Judicial proceedings to enforce the right have been                    instituted;   In this
     case the time-limit shall end not earlier than one year after the Judgment
     has acquired the authority of a final decision.
                                            Article 82
                                     Apportionment of costs
1.   Each party to objection proceedings or to proceedings for revocation or
     cancellation of a Community plant variety right, or to appeal proceedings
     shall meet the costs he has incurred unless a decision of the Office or
      the  Board    of     Appeal,      for    reasons    of    equity,   orders    a   different
     apportionment of essential costs, including travel and subsistence and the
      remuneration     of     an    agent,     adviser    or    lawyer.   A   decision    on  the
      apportionment of costs may also be taken on request when a Community plant
      variety right application, an objection or an application for revocation
     or cancellation        of   the Community       plant   variety   right   is withdrawn, or
      where the holder surrenders It pursuant to Article 18(2).
 ---pagebreak---                                     - 85 -
2. The Office shall, upon application, determine the amount of costs to be
   paid where a decision is taken pursuant to paragraph 1 to divide them.
                                   Article 83
        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.
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.
 ---pagebreak---                   - 86 -
                CHAPTER VI I 1
Register of Community Plant Variety Rights,
         Information of the public
 ---pagebreak---                                        - 87 -
                                     Article 84
                           Establishment of the Register
1. 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 names and addresses of:
         -   the holder,
         -   the original breeder or discoverer,
         -   the procedural representative;
   (e)    the date on which the Community plant variety right begins and ends,
          together with the reasons for the termination of the right;
   (f)    any contractual exclusive exploitation right, if the holder or the
          licensee    in    submitting   documented  evidence    so   requests,  or
          compulsory exploitation right, including the name and address of the
          person enjoying the right of exploitation;
   (g)    any levy of execution pursuant to Article 23, if a party thereto so
          requests;
    (h)   any other particular as may be specified       in the implementing rules
          pursuant to Article 109.
 ---pagebreak---                                        - 88 -
2. 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
   characteristics, 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.
3. Changes   in holdership or     in the Identity of a procedural          representative
   shall be entered in the Register if supporting evidence is provided to the
   Office.
4. The holder shall be required, in accordance with the instructions given by
   the Office, to deposit a reference sample of individuals of the variety.
   This sample    shall  be referred     to for determining        the   identity of    the
   var iety.
                                      Article 85
                                 Pub!1c Inspect Ion
1. The following shall be open to public inspection, in accordance with the
   conditions set up in the implementing rules pursuant to Article 109:
    (a)    the Register of Community plant variety rights;
    (b)    documents   relating    to   published      applications    for   grant   of   a
          Community plant variety right;
    (c)    documents   relating    to   Community      plant   variety    rights   already
           granted;
    (d)    the  growing   of   varieties    for    the   purposes   of   their   technical
           examinât ion;
    (e)    the  growing   of   varieties     for    the   purpose   of   verifying   their
           continuing existence,
    (f)    the reference samples deposited pursuant to Article 84(4).
 ---pagebreak---                                         - 89 -
2. Documents relating to applications for grant of a Community plant variety
   right   which   have   not   yet  been  published    shall   be made     available   for
   Inspect Ion only:
   (a)    with the consent of the applicant, or If
   (b)    the   person   seeking    inspection   can  prove    that   the   applicant   has
          stated,   directly     or   indirectly,   that   after   the   Community    plant
          variety right has been granted he may            invoke the rights under       it
          against that person.
3. In   the  case   referred    to   in Article 84(1 )(c),     at   the   request  of   the
   applicant, 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 54(4),     55   and   63 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 86
                               Periodical Publications
1. The Office shall periodically publish the following in a publication which
   shall be specified by the Administrative Council:
    (a)    applications for grant of 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   original   breeder    or   discoverer     and  of   any
           procedural representative;
 ---pagebreak---                                         - 90 -
   (b)   any cases of termination of proceedings for grant of a Community
         plant   variety     right   together    with  the  Information     set   out  In
         subparagraph (a);
   (c)   proposals for variety denominations;
   (d)   grants   of    Community      plant   variety   rights    together    with   the
          information laid down In Article 84(1)(a), (d) and (e);
   (e)   any cases of termination of Community plant variety rights together
         with the information set out above;
   (f)   any   cases   of    creation    or  termination   of   contractual     exclusive
         exploitation rights or compulsory exploitation rights, in the case
         of Article 84 paragraph 1(f);
   (g)   amendments to variety denominations pursuant to Article 65;
   (h)   changes    in    holdership      or  in   the   identity    of   a   procedural
         representative pursuant to Article 84(3);
   (I)   any levy of execution pursuant to Article 23, if a party thereto so
         requests.
2. In addition, the publication shall contain notices and              information of a
   general   character     issued   by   the  Office,   and   may   contain   any   other
   information relevant to this Regulation or its implementation.
                                      Article 87
                 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 85(3) shall be excluded from information,
   unless
   (a)    the  information     is necessary    for the conduct of the examinations
          pursuant to Articles 54 and 63, or
    (b)   the applicant or holder gives his consent.
 ---pagebreak---                                     - 91    -
                                   Article 88
                     Administrative and legal cooperation
1. Unless otherwise    provided  in this Regulation    or  in national   law,  the
   Office 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 lays 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 85.
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 legal measures.
 ---pagebreak---          92 -
      PART FIVE
Impact on other laws
 ---pagebreak---                                           - 93 -
                                       Article 89
                           Cumulative protection prohibited
1.    Varieties that are the subject matter of Community plant variety rights
      shall not be patented nor be the subject matter of national plant variety
      rights.   Any   rights   granted   contrary  to  the  first  sentence   shall  be
      ineffeetIve.
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 in respect of the variety for as long as the Community plant
      variety right remains effective.
                                        Article 90
                               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
Régulât ion.
 ---pagebreak---                   - 94 -
                  PART SIX
Civil law claims, Infringements, Jurisdiction
 ---pagebreak---                                        - 95 -
                                     Article 91
                   Infringement of Community plant variety rights
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)    contrary to Article 17(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.
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 shall 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 92
               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 grant of a Community          plant
variety right and grant thereof, effected an act that he would be prohibited
from performing subsequent thereto.
 ---pagebreak---                                        - 96 -
                                     Article 93
                                    Prescription
Claims pursuant    to Articles 91 and 92 shall be barred by prescription      after
three years from the time at which the holder has knowledge of the act and of
the  identity of the party     liable or,    irrespective of such knowledge, after
thirty years from the termination of the act concerned.
                                      Article 94
        Supplementary application of national law regarding infringement
1.   Where   the party   liable pursuant     to Article 91  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
     97   or   98  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 92 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.
                                      Art icle 95
              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 right to the Community plant variety
      right transferred to him.
 ---pagebreak---                                       - 97 -
2. Where   a person   is 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 in whom the entitlement was not vested solely.
                                     Article 96
                 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    judgement delivered pursuant   to
   Articles 97   or    98   for  the   purposes of   claiming  entitlement   under
   Article 95(1), any exploitation or other rights shall lapse with the entry
   of the person entitled in the Register of Community Plant Variety Rights.
 ---pagebreak---                                        - 98 -
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 97 or 98, they may continue or perform
   such acts provided they request 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 shall be granted by the Office
   for a reasonable period on reasonable conditions.
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 97
              Jurisdiction and procedure In legal actions relating
                                to civ 11 law claims
1. 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 Convention", as well as the complementary               provisions
   of this Article and of Articles 98 to 102 of this Regulation shall apply
   to proceedings relating to actions in respect of the claims referred to In
   Articles 91 to 96.
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 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 State in which the seat of the Office Is located.
 ---pagebreak---                                        - 99 -
   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
   occurred.    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.
                                     Article 98
                             Supplementary provisions
1. Actions   for   claiming  entitlement    pursuant   to Article    95 shall   not  be
   considered to fail under the provisions of Article 5(3) and (4) of the
   Convention.
2. Notwithstanding Article 97, Articles 5(1), 17 and 18 of the Convention
   shalI apply.
3. For the purposes of applying Articles 97 and 98, the domicile or seat of a
   party   shall    be   determined   pursuant    to   Articles 52    and  53  of   the
   Convent ion.
 ---pagebreak---                                       - 100 -
                                     Article 99
                           Rules of procedure applicable
Where Jurisdiction    lies with national courts pursuant to Articles 97 and 98,
the rules of procedure of the relevant State governing the same type of action
relating   to corresponding    national  industrial  property   rights  shall  apply
without prejudice to Articles 100 and 101.
                                     Article 100
                  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 only        If the holder   consents
     thereto.
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 101
                   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.
 ---pagebreak---                                          - 101 -
                                       Article 102
                                   Stay of proceedings
1.   Where  an   action   relates    to claims    pursuant   to Article 95(4) and      the
     decision   depends   upon    the   protectablIIty    of  the  variety   pursuant   to
     Article 6, this decision may not be given before the Office has decided on
     the appiI cat ion.
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 19 or 20 have been initiated, the proceedings may be
     stayed insofar as the decision depends upon the validity of the Community
     plant var iety r ight.
                                       Article 103
          Penalties for Infringement of Community plant variety rights
Member States   shall   ensure    that   on   1  July   1992  at  the   latest  the   same
provisions are made applicable to penalize            infringements of Community    plant
variety  rights   as   apply   in   the   matter   of   Infringements  of   corresponding
national industrial property rights.
 ---pagebreak---                           - 102 -
                         PART SEVEN
Budget, financial control, Community implementing provisions
 ---pagebreak---                                   - 103 -
                                 Article 104
                                    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 80 under the fees regulations adopted in
   accordance with Article 108 and, to the extent necessary, a subsidy from
   the general budget of the European Communities, entered under a specific
   heading of the Commission Section.
                                 Article 105
                          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 send it to the Commission
   not later than 31 March each year, together with an establishment plan and
   an opinion from the Administrative Council.
2. The Commission shall annex the estimate to the preliminary draft budget of
   the European Communities.    The Commission may attach an opinion on the
   estimate   along  with   an  alternative  estimate.   If  a  subsidy  under
   Article 104(3) is necessary, the Commission may propose such amendment of
   the estimate as it considers requisite.
3. The Office's budget shall be adopted by the budget authority in accordance
   with the same procedure as the general budget.
 ---pagebreak---                                      - 104 -
4.   Where appropriations for unforeseen expenditure are contained In a budget,
     the  use   thereof  shall   be   subject   to the  prior   approval  of  the
     Administrative Council.
                                    Article 106
                                      Control
1.   Not later than 31 March each year the President shall send the Commission
     and the Court of Auditors accounts of the Office's total         revenue and
     expenditure for the preceding financial year.    The Court of Auditors shall
     examine them in accordance with Article 206a of the Treaty.
2.   The European Parliament shall give a discharge to the President of the
     Office in accordance with the procedure laid down in Article 206b of the
     Treaty.
3.   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 of the Commission.
                                    Article 107
                               Financial provisions
The Financial  Regulations applicable to the general      budget of  the European
Communities shall apply to the Office.
                                    Article 108
                                 Fees regulations
1.   The Fees regulations shall determine in particular the circumstances under
     which fees are due pursuant to Article 80(1), the amounts of the fees to
     be paid and the ways in which they are to be paid.
 ---pagebreak---                                      - 105 -
2. Fees shall be provided for at least in respect of the fol lowing off I d a I
   acts:
   (a)    the   processing    of applications   for   grant   of   a  Community   plant
          variety right, comprising the following measures:
          -   the formal examination,
          -   the substantive examination,
          -   the examination of the variety denomination,
          -   the decision,
          -   any not Ices;
   (b)    the arranging or carrying out of the technical examination;
   (c)    the processing of an appeal including the decision.
3. The amounts of the fees shall be fixed          in such a manner that, after a
   transitional    period,    the Office's  revenue    covers    at  least   its  total
   variable expenditure.
4. The fees regulations shall be adopted         in accordance with the procedure
   laid down in Article 110, after consultation of the Administrative Council
   on the draft of the measures to be taken.
                                    Article 109
                           Other implementing provisions
1. Detailed implementing rules shall be adopted for the purpose of applying
   this Regulation. They shall in particular include provisions defining the
   relationship between the Office and the Examination Offices, agencies or
    its own sub-offices referred to in Articles 29(4) and 54(1) and (2), and
   may   include provisions on matters referred         to  In Article 38(1) second
   sentence, (2), (5) and (6).
2. The procedure of the Boards of Appeal          shall be determined      in rules of
   procedure of the Boards of Appeal.
3. The implementing rules and the rules of procedure of the Boards of Appeal
   shall be adopted      in accordance with the procedure        laid down   In Article
    110, after consultation of the Administrative Council on the draft of the
   measures to be taken.
 ---pagebreak---                                    - 106 -
                                  Article 110
                                   Procedure
The Commission sha11 be assisted by a committee of an advisory nature composed
of the representatives of the Member States and chaired by the representative
of the Commission.
The representative of the Commission shall submit to the committee a draft of
the measures to be taken. The committee shall deliver its opinion on the draft,
within a time limit which the chairman may lay down according to the urgency of
the matter, if necessary by taking a vote.
The opinion shall be recorded in the minutes; in addition, each Member State
shall have the right to ask to have its position recorded in the minutes.
The Commission shall take the utmost account of the opinion delivered by the
committee. It shall inform the committee of the manner in which its opinion has
been taken Into account.
 ---pagebreak---              - 107 -
            PART EIGHT
Transitional and final provisions
 ---pagebreak---                                       - 108 -
                                    Article 111
                                    Derogations
1.   Notwithstanding Article 10(1)(a), a variety shall be deemed to be new also
      In cases where    Individuals thereof were disposed of    to others   In the
     territory of the Community for commercial purposes, within four years, in
     the case of vine or tree species within six years, before the entry into
     force of this Regulation, if the date of application is within one year of
     that date.
2.   Notwithstanding Article 51(2), the applicant for the grant of Community
     plant variety rights may claim the priority of an earlier application in
     one of the Member States also in cases, where the earlier application was
     filed within four years, in the case of vine or tree species within six
     years, before the entry     into force of this Regulation,   if the date of
     application   is within one year of that date. The first sentence shall
     apply also to cases where the property right has already been granted In
     the Member State concerned and is still valid.
                                     Article 112
                              Transitional provisions
The  Office  shall   be  established   in good   time to assume  fully  the   tasks
incumbent upon it pursuant to this Regulation as from 1 July 1992.
 ---pagebreak---                                     - 109 -
                                   Article 113
                                Entry Into force
This Regulation shall enter into force on 1 April 1991.
Articles 1, 2, 3, 5 to 28 and 48 to 102 shall apply from 1 July 1992.
This Regulation shall be binding in its entirety and directly applicable in all
Member States.
Done at Brussels;                               For the Commission
 ---pagebreak---                                          - 110 -
                            F I N A N C I A L       S T A T E M E N T
                                           concerning :
A proposal for a Council Regulation (EEC) on Community plant variety rights (1)
1.   Budget heading : I I IB        item : 5101    Title : Realisation of the Internal
                                                          market In the field of
                                                          agrI culture
2.   Legal basis : art. 43
3.   ClassiflcatIon : Non-compulsory expenditure
       i                                                               . _   —   _ _
4.   Purpose / description of the measure : In order to permit the Introduction of
     Community-wide plant breeders'rIghts In the context of the single market, It Is
     necessary to set up a Community variety office.
5.   Method of calculation :
5.1 Form of expenditure : Participation In the administrative costs of the office.
5.2 Community contribution : Subsidy based on real needs.
5.3 Ca leu I at ion -. Total estimated administrative costs of the office amount to
     3.5 MECU per year. This includes accomodation and staffing (2,0 MECU, assuming
     20 staff members) as well as the var lable costs of the office (1,5 MECU, trials
     costs, reimbursement for activities of national Institutions, Inspection of
      triais, meetings, translation, etc.). Trials costs of 0,5 MECU would be charged
     entirely to plant breeders from the beginning. The remaining variable costs
      initially to be covered by the Community would be phased out over a 3 year period
      after the first year of full establishment of the office. I.e. 1994.
 6.   Financial   Implication as regards operating appropriations :
 6.1 Schedule of appropriations (m ECU)
             Year
              1991                       p.m
              1992                        0.8 (2)
              1993                        1.5 (2)
              1994                        3.0 (3)
              1995                        2.7
              1996                        2.4
              Following years             2.0 max.
              TOTAL 91-96               10.4
 6.2 Financing during current year : nil
 7.   Observât Ions -.
 (1) This measure appears in the Commission's White Paper for completing the Internal
      market in the field of agriculture.
 (2) Only half of the staff foreseen will be engaged In the first two years.
  (3) It is estimated that from 1994 until 1997 each year an additional 0,3-0,4 MECU of
      the var iable costs can be covered by the office's revenue from charging fees to
      plant breeders.
 ---pagebreak---                                   - 111 -
            COMPETITIVENESS AND EMPLOYMENT IMPACT STATEMENT
I   What is the main reason for introducing the measure?
    To establish a Community system for the protection of the
    breeding or the detection of new plant varieties (industrial
    property right sui generis, as established by UPOV and
    implemented by most Member States) with the aim to ensure that
    breeders may acquire, by the time of the completion of the
    internal market, protection through a single decision with
    direct and uniform effect in the whole of the Community.
II  Features of the businesses in question. In particular:
    a) Are they many SMEs°
         Plant breeders are directly concerned; merchants and users
         of material of protected plant varieties, including farmers,
         are indirectly concerned; both groups comprise many SMEs.
    b) Are they concentrated in regions which are:
         i.   eligible for regional aid in the Member States?
              Not so far as Commission services are aware
         ii. eligible under the ERDF°
              Not so far as Commission services are aware
III What direct obligations does this measure impose on businesses?
    The obligations are those which are already established under
    the current national plant breeders' rights ; merchants and users
    of material of protected plant varieties would need the consent
    of the breeder (licence).
IV  What indirect obligations are local authorities likely to impose
    on businesses?
    The Commission services can foresee none.
V   Are there any special measures in respect of SMEs? Please
    specify.
    No specific measures.
VI  What is the likely effect on:
    a)   the competitiveness of businesses?
         This is"difficult to assess: one«of the reasons to safeguard
         the genuine "breeders' exemption" is to further the position
         of competitiveness of SME breeders with others.
    b) employment?
         Expected to be neutral.
VII Have both sides cf industry been consulted? Please indicate
    their opinions
    The representatives cf plant breeders as well of users have been
    consulted through their Community organisations and have
    expressed themselves in favour of the general concept of the
    •Droi30sed scheme.
 ---pagebreak---  ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                                 ISSN 0254-1475
                                                                 COM (90) 347 final
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