Christian Schulin v Saatgut-Treuhandverwaltungsgesellschaft mbH.
Date: 2003-04-10
46.  It must be observed as a preliminary point that, under Article 13(2) of Regulation No 2100/94, the authorisation of the holder of a 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), conditioning for the purpose of propagation, offering for sale, selling or other marketing and for stocking for those purposes.
47.  The provisions of Article 14 of that regulation, which, as is clear from the 17th and 18th recitals of the preamble thereto, were adopted on the basis of the public interest in safeguarding agricultural production, constitute an exception to that rule.
52.  Article 14(3) of Regulation No 2100/94, which, moreover, provides expressly that conditions to give effect to the derogation provided for in paragraph 1 of that Article are to be established in implementing rules, must be interpreted in the light of that paragraph 1 and cannot therefore refer to cases in which that derogation is not even liable to be applicable.
57.  It must be held that to interpret Article 14(3) of Regulation No 2100/94 as meaning that all farmers, merely by belonging to that profession, even those who have never planted propagating material from a variety covered by a Community plant variety right belonging to one of the plant species listed in Article 14(2), must provide the holder with all relevant information on request, goes beyond what is necessary in order to safeguard the legitimate interests of both the breeder and the farmer.
58.  Moreover, it must be borne in mind that, according to settled case-law, the principle of legal certainty requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by Community law remain foreseeable (see Case C-63/93  Duff and Others   [1996] ECR I-569, paragraph 20, and Case C-107/97   Rombi and Arkopharma   [2000] ECR I-3367, paragraph 66).  That requirement is all the more important where obligations are imposed on individuals.
60.  As regards the interpretation of Article 8(2) of Regulation No 1768/95, suffice it to note that, given that that regulation is an implementing regulation laying down conditions to give effect to the derogation provided for in Article 14(1) of Regulation No 2100/94, those provisions cannot, in any event, impose more extensive obligations on farmers than those under Regulation No 2100/94.
61.  Moreover, Article 8(1) of Regulation No 1768/95 provides that the details of the relevant information to be provided by the farmer to the holder may form the object of a contract between   "the holder and the farmer concerned"  .  Accordingly, the first sentence of paragraph 2 of that Article, which provides that where such contract has not been concluded or does not apply, the   "farmer"   is, at the request of the   "holder"  , to be required to provide a statement of relevant information, must be held to refer, like paragraph 1, only to the holder and the farmer concerned.
63.  However, given, on the one hand, the difficulty the holder has in asserting his right to information, by reason of the fact that, as the referring court, in particular, pointed out, examination of a plant does not reveal whether it was obtained by the use of the product of the harvest or by the purchase of seed, and, on the other hand, the obligation to safeguard the legitimate interests of both the breeder and the farmer under Article 14(3) of Regulation No 2100/94 and Article 2 of Regulation No 1768/95, the holder must be authorised to request information from a farmer where he has some indication that the latter has relied or will rely on the derogation provided for by Article 14(1) of Regulation No 2100/94.
64.  That interpretation is supported by Article 8(2)(b) of Regulation No 1768/95, under which the farmer is required to provide a statement of relevant information to the holder, at the latter's request, and that information is to include whether the farmer has made use of the product of the harvest belonging to one or more varieties of the holder for planting in the field or fields of his holding.  Such a statement by the farmer is necessary where the holder has only an indication of the fact that the farmer has relied on or will rely on the derogation provided for by Article 14(1) of Regulation No 2100/94.
65.  In that connection, as Mr Schulin and the Commission submitted, the acquisition of propagating material of a protected plant variety of the holder must be considered to be such an indication.
71.  In any event, 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 14(1) of Regulation No 2100/94 and, therefore, must be considered to have undertaken, without being authorised, one of the acts referred to in Article 13(2) of that regulation.  Accordingly, it is clear from Article 94 of that regulation that such a farmer can have an action brought against him by the holder for an injunction in respect of the infringement or for payment of equitable remuneration or both.  If the infringement is intentional or negligent, the farmer is also obliged to pay damages to make good the loss suffered by the holder.