Josef Geistbeck and Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH.
Date: 2012-07-05
21. As a preliminary point, it should be recalled that, under Article 13(2) of Regulation No 2100/94, authorisation from the holder of the Community plant variety right is required, in respect of variety constituents or harvested material of the protected variety, inter alia, for production or reproduction (multiplication); for conditioning for the purposes of propagation; for offering for sale, selling or other marketing; and for stocking for those purposes (see Schulin , paragraph 46).
22. In that context, Article 14 of Regulation No 2100/94 constitutes a derogation from the rule that authorisation must be granted by the holder of the Community plant variety right (see, to that effect, Schulin , paragraph 47), in so far as use of the product of the harvest obtained by the farmers, on their own holding, for propagating purposes in the field, is not conditional upon authorisation by the holder of the Community right, where they fulfil certain conditions expressly set out in Article 14(3) of that regulation.
23. In that regard, the Court has found that a farmer who does not pay equitable remuneration to the holder when he uses the product of the harvest obtained by planting propagating material from a protected variety cannot rely on Article 4(1) of Regulation No 2100/94 and must therefore be considered to have carried out, without being authorised, one of the acts referred to in Article 13(2) of that regulation ( Schulin , paragraph 71).
36. In so far as Article 94 of Regulation No 2100/94 is intended to make good the loss suffered by the holder of a plant variety who is the victim of an infringement, it must be held that, in the case before the referring court, since the Geistbecks cannot rely on the ‘farmer’s privilege’ — namely, the derogation from Community plant variety rights allowed under Article 14(1) of Regulation No 2100/94 and as provided for in Article 14(3) of that regulation — that loss amounts to at least the fee that a third party would have had to pay for a C-Licence.
37. Consequently, in order to determine, in the circumstances of the case before the referring court, ‘reasonable compensation’ as provided for under Article 94(1) of Regulation No 2100/94, it is appropriate to take as the basis for that calculation an amount equivalent to the remuneration payable for licensed production.
40. As was pointed out in paragraph 35 above, a farmer who does not rely on Article 14(3) of Regulation No 2100/94 must be regarded as a third party who, without authorisation, has carried out one of the acts referred to in Article 13(2) of that regulation. Accordingly, the benefit which has been gained by the person who committed the infringement and which Article 94(1) of Regulation No 2100/94 seeks to offset corresponds to the amount equivalent to the fee payable for production under the C-Licence, which he has not paid.
42. The incentive effect attaching to the concept of ‘reasonable compensation’ as provided for in Article 94 of Regulation No 2100/94 is all the more compelling in that, under the fifth indent of Article 14(3) of that regulation, the holders alone are responsible for the control and supervision of the use of the protected varieties in the context of the authorised planting and they depend, therefore, on the good faith and cooperation of the farmers concerned.
47. In that regard, it has consistently been held that the procedure provided for under Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (see, inter alia, Case C-445/06 Danske Slagterier  [2009] ECR I-2119, paragraph 65, and Case C-197/10 Unió de Pagesos de Catalunya  [2011] ECR I-8495, paragraph 16 and the case-law cited).
48. In the context of that cooperation, questions relating to EU law enjoy a presumption of relevance. The Court may thus refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, or where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-11421, paragraph 25, and Unió de Pagesos de Catalunya , paragraph 17).
50. In that respect, it is sufficient to note that Article 94(1) of Regulation No 2100/94 does no more than provide for reasonable compensation in the event of unlawful use of a plant variety, but does not provide for compensation for damage other than that connected to the failure to pay that compensation.
51. In those circumstances, the answer to the third question is that the payment of compensation for costs incurred for monitoring compliance with the rights of the plant variety holder cannot enter into the calculation of the ‘reasonable compensation’ provided for under Article 94(1) of Regulation No 2100/94.
Costs