Saatgut-Treuhandverwaltungsgesellschaft mbH v Brangewitz GmbH.
Date: 2004-10-14
37. The provisions of Article 14 of that regulation, which, as is clear from the 17th and 18th recitals in its preamble, were adopted on the basis of the public interest in safeguarding agricultural production, constitute an exception to that rule (see Schulin , paragraph 47).
41. Article 14(3) of Regulation No 2100/94, which moreover provides expressly that the 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 capable of applying (see Schulin , paragraph 52).
48. As regards the interpretation of Article 9(2) of Regulation No 1768/95, it suffices 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, its provisions cannot in any event impose more extensive obligations on suppliers of processing services than those under Regulation No 2100/94 (see, with respect to farmers, Schulin , paragraph 60).
49. Moreover, Article 9(1) of Regulation No 1768/95 provides that the details of the information to be provided by the supplier of processing services to the holder under the sixth indent of Article 14(3) of Regulation No 2100/94 may form the object of a contract between ‘the holder and the processor concerned’. The first sentence of Article 9(2), which provides that, where such a contract has not been concluded or does not apply, the ‘processor’ is, at the request of the ‘holder’, to be required to provide him with a statement of relevant information, must be regarded as referring, like Article 9(1), only to the holder and the processor concerned (see, with respect to farmers, Schulin , paragraph 61).
53. Accordingly, given, on the one hand, the difficulty the holder has in asserting his right to information as against farmers, by reason of the fact that 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 reciprocal legitimate interests of the breeder and the farmer which follows from Article 14(3) of Regulation No 2100/94 and Article 2 of Regulation No 1768/95 (see Schulin , paragraph 63), the holder must be authorised to request information concerning one of his varieties subject to the privilege from a supplier of processing services where he has some indication that the latter has processed or intends to process the product of the harvest obtained by planting propagating material of that variety for planting. It should be pointed out that that right of the holder does not depend on whether the varieties concerned were declared or otherwise known to the supplier of processing services.
61. If, therefore, as the Court found in paragraph 53 above, the holder is entitled to request information concerning one of his varieties subject to the privilege from a supplier of processing services where he has some indication that the latter has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of that variety for planting, it must in principle follow that, if that is the case, the processor is obliged to provide him with the relevant information concerning all the farmers for whom he has provided such services relating to the variety concerned.
63. That interpretation is supported by Article 9(2)(b) of Regulation No 1768/95, under which the supplier of processing services is required to provide a statement of relevant information to the holder, at the latter’s request, and that information is to include whether he has processed the product of the harvest belonging to one or more varieties of the holder for planting, the amount of the product of the harvest belonging to the variety or varieties concerned which he has processed, the dates and places of the processing, and the name and address of the person or persons for whom he has supplied the processing services. Such a statement is necessary where the holder has only an indication of the fact that the supplier of processing services has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety of the holder for planting (see, to that effect, with respect to the obligation of farmers to provide information, Schulin , paragraph 64).
65. It follows that, once the holder has an indication that the supplier of processing services has processed or intends to process the product of the harvest obtained by the farmer by planting propagating material of a variety of the holder for planting, the supplier of processing services is required to provide him with the relevant information relating not only to the farmers for whom the holder has some indication that the processor has provided or intends to provide such services but also to all other farmers for whom he has provided or intends to provide them, where the variety in question has been declared or is otherwise known to him.