1. These references for a preliminary ruling concern the interpretation of Article 5(2), (4) and (5) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights (OJ 1995 L 173, p. 14), as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998 (OJ 1998 L 328, p. 6) (‘Regulation No 1768/95’).
2. The references were made in the course of proceedings between Saatgut-Treuhandverwaltungs GmbH (‘STV’), an organisation of holders of Community plant variety rights (‘the holders’) and Mr Ulrich Deppe, Ms Hanne-Rose Deppe, Mr Thomas Deppe and Mr Matthias Deppe and Ms Christine Urban, who are the heirs of Mr Dieter Deppe, and Mr Siegfried Hennings and Mr Hartmut Lübbe, farmers, regarding the payment of claims to remuneration for the planting of seeds which are covered by such a right. Legal context
3. Under Article 1 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (‘the basic regulation’), a system of Community plant variety rights is established as the sole and exclusive form of Community industrial property rights for plant varieties.
4. According to Article 14(1) of the basic regulation, which provides for a derogation from Community plant variety rights: ‘Notwithstanding Article 13(2), and for the purposes of safeguarding agricultural production, farmers are authorised to use for propagating purposes in the field, on their own holding the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety, which is covered by a Community plant variety right.’
5. The fourth indent of Article 14(3) of the basic regulation relates to the financial conditions under which farmers other than small farmers may do so. Those farmers are required ‘to pay an equitable remuneration to the holder, which shall be sensibly lower than the amount charged for the licensed production of propagating material of the same variety in the same area; the actual level of this equitable remuneration may be subject to variation over time, taking into account the extent to which use will be made of the derogation provided for in paragraph 1 in respect of the variety concerned’.
6. Article 1 of Regulation No 1768/95 contains the implementing rules on the conditions to give effect to the derogation provided for in Article 14(1) of the basic regulation.
7. Article 2 of Regulation No 1768/95 provides that: ‘1. The conditions referred to in Article 1 shall be implemented both by the holder, representing the breeder, and by the farmer in such a way as to safeguard the legitimate interests of each other. 2. The legitimate interests shall not be considered to be safeguarded if one or more of these interests are adversely affected without account being taken of the need to maintain a reasonable balance between all of them, or of the need for proportionality between the purpose of the relevant condition and the actual effect of the implementation thereof.’
8. As set out in Article 5 of Regulation No 1768/95: ‘1. The level of the equitable remuneration to be paid to the holder pursuant to Article 14(3), fourth indent of the basic regulation may form the object of a contract between the holder and the farmer concerned. 2. Where such contract has not been concluded or does not apply, the level of remuneration shall be sensibly lower than the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area. If no licensed production of propagating material of the variety concerned has taken place in the area in which the holding of the farmer is located, and if there is no uniform level of the aforesaid amount throughout the Community, the level of remuneration shall be sensibly lower than the amount which is normally included, for the above purpose, in the price at which propagating material of the lowest category qualified for official certification, of that variety is sold in that area, provided that it is not higher than the aforesaid amount charged in the area in which that propagating material has been produced. 3. The level of remuneration shall be considered to be sensibly lower within the meaning of Article 14(3), fourth indent of the basic regulation as specified in paragraph 2 above, if it does not exceed the one necessary to establish or to stabilise, as an economic factor determining the extent to which use is made of the derogation, a reasonably balanced ratio between the use of licensed propagating material and the planting of the product of the harvest of the respective varieties covered by a Community plant variety right. Such ratio shall be considered to be reasonably balanced, if it ensures that the holder obtains, as a whole, a legitimate compensation for the total use of his variety.’
9. Regulation No 2605/98 which entered into force on 24 December 1998 added the following paragraphs in particular to Article 5 of Regulation No 1768/95 in its original version: ‘4. Where in the case of paragraph 2 the level of remuneration is the subject of agreements between organisations of holders and of farmers, with or without participation of organisations of processors, which are established in the Community at Community, national or regional level respectively, the agreed levels shall be used as guidelines for the determination of the remuneration to be paid in the area and for the species concerned, if these levels and the conditions thereof have been notified to the Commission in writing by authorised representatives of the relevant organisations and if on that basis the agreed levels and conditions thereof have been published in the “Official Gazette” [ Official Bulletin ] issued by the Community Plant Variety Office. 5. Where in the case of paragraph 2 an agreement as referred to in paragraph 4 does not apply, the remuneration to be paid shall be 50% of the amounts charged for the licensed production of propagating material as specified in paragraph 2. However, if a Member State has notified the Commission before 1 January 1999 of the imminent conclusion of an agreement as referred to in paragraph 4 between the relevant organisations established at national or regional level, the remuneration to be paid in the area and for the species concerned shall be 40% instead of 50% as specified above, but only in respect of the use of the agricultural exemption made prior to the implementation of such agreement and not later than 1 April 1999. 6. Where in the case of paragraph 5 the farmer has made use, in the relevant period, of the agricultural exemption at a ratio of more than 55% of the total material of the relevant variety used for his production, the level of the remuneration to be paid in the area and for the species concerned shall be the one which would apply in respect of such a variety if it was protected in the relevant Member State under its national system of plant variety rights, if a national system exists which has established such level, and provided that that level is more than 50% of the amounts charged for the licensed production of propagating material as specified in paragraph 2. In the absence of such level under the national scheme, the provisions of paragraph 5 shall apply irrespective of the ratio of use.’
10. Article 6(1) of Regulation No 1768/95 provides that: ‘Without prejudice to the provisions of paragraph 2, the individual obligation of a farmer to pay the equitable remuneration shall come into existence at the time when he actually makes use of the product of the harvest for propagating purposes in the field. The holder may determine the date and the manner of payment. However, he shall not determine a date of payment which is earlier than the date on which the obligation has come into existence.’ The main proceedings and the questions referred for a preliminary ruling
11. The Bundesgerichtshof (Federal Court of Justice) is giving a ruling in the context of an appeal on a point of law made by STV against a decision, given on appeal, dismissing its claim for supplementary compensation against the heirs of Mr Dieter Deppe and also against Mr Hennings and Mr Lübbe.
12. According to the national court, neither the lower courts nor legal literature have developed a uniform line as regards what is meant by ‘sensibly lower’ remuneration within the meaning of Article 5(2) of Regulation No 1768/95 and as regards the criteria in accordance with which that remuneration is to be established.
13. Furthermore, the national court observes that Article 5 of Regulation No 1768/95 does not specify who has the power to determine that remuneration when no contract is concluded between the holder and the farmer who carries out the planting of harvested material. As the holder may determine the date and the manner of payment of the remuneration due to him pursuant to Article 6 of that regulation, it might be assumed that he also has the right to determine the amount thereof.
14. According to the national court, under Article 5 of Regulation No 1768/95, the defendants in the main proceedings owe equitable remuneration for the planting of harvested material by them which, in the absence of a contract between the parties, must be sensibly lower than the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area (‘the certified seed fee’). The concept ‘sensibly lower’ always implies an appreciable reduction in price as against the certified seed fee. The same court states that, in business, lowering remuneration by 20% is considered to be a significant reduction.
15. The national court asks about the criteria by which an equitable remuneration may be fixed when making a statutory assessment. Referring to Regulation No 2605/98, it suggests that it could be inferred from the recourse, as guidelines, to agreements concluded between organisations of holders and farmers that the holder is subject to certain limits as regards the determination of the remuneration to be paid by a farmer who is not contractually bound but that the various calculation rules do not have to be applied. Thus, on the basis of the 1996 cooperation agreement, which could be decisive as a guideline, the rate of 80% of the licence fee for certified seed might be considered to be equitable.
16. The Bundesgerichtshof considers that it might also be inferred from the guideline function of an agreement between professional organisations that the essential elements of that agreement are to be used in the statutory assessment of the remuneration as well. That approach would avoid major differences between calculation based on the agreement and calculation based on statute.
17. However, the national court observes that the 1996 cooperation agreement was published in the Official Bulletin of the Community Plant Variety Office (‘the Office’) only on 16 August 1999. It raises the question whether the formal requirements laid down in Article 5 of Regulation No 1768/95 are also to be applied to cooperation agreements which had already been properly concluded before Regulation No 2605/98 entered into force.
18. It was in those circumstances that the Bundesgerichtshof decided to stay the proceedings in the three cases in the main proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the requirement that the level of remuneration for the planting of harvested material within the meaning of Article 5(2) of Regulation (EC) No 1768/95 be “sensibly lower” than the amount charged for the licensed production of propagating material of the same variety in the same area satisfied also if the remuneration is calculated at a flat rate of 80% of that amount? (2) Does Article 5(4) and (5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, contain a commitment in value terms with respect to the level of remuneration for the planting of harvested material in the event of statutory assessment? If so, does that commitment, as the expression of a general idea, also apply to plantings of harvested material occurring before Regulation (EC) No 2605/98 entered into force? (3) Does the guideline function of an agreement between organisations of holders of plant variety rights and farmers within the meaning of Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, include the possibility, in the event of statutory assessment, of the essential elements (calculation parameters) of that agreement being applied also where, at the time of the calculation of the statutory remuneration, not all of the parameters lying within the sphere of the planter of the harvested material and required for calculation based on the agreement are known to the holder and he is not entitled to be notified of the relevant facts by the farmer? If so, does such an agreement, if it is to perform a guiding function along these lines, presuppose, for its effectiveness, compliance with the requirements laid down in Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, also where it was concluded before the latter regulation entered into force? (4) Does Article 5(5) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, set an upper limit on the remuneration under contractual and/or statutory remuneration arrangements? (5) Can an agreement between professional organisations be used as a guideline within the meaning of Article 5(4) of Regulation (EC) No 1768/95, as amended by Regulation (EC) No 2605/98, if it exceeds the rate of remuneration of 50% of the amount defined in Article 5(5) of that regulation?’
19. By order of the President of the Court of 26 January 2005, Cases C-7/05 to C-9/05 were joined for the purposes of the written and oral procedure and of the judgment. The first question
20. By its first question, the national court is essentially asking whether remuneration calculated at 80% of the certified seed fee may be considered as satisfying the requirement that the remuneration has to be ‘sensibly lower’ than that fee under Article 5(2) of Regulation No 1768/95.
21. It must be explained at the outset that the holder may be remunerated in three ways: first, by the conclusion of a contract between the holder and the farmer pursuant to Article 5(1) of Regulation No 1768/95, secondly, by the conclusion of agreements between organisations of holders and of farmers in accordance with Article 5(4) of that regulation, and lastly, in the alternative, by the determination of a level of remuneration on the basis of certain guiding principles laid down in Article 5(2) and (5) of Regulation No 1768/95.
22. In view of the fact that, in the present case, there has been no contract or accession to an agreement, it is appropriate to consider the third method mentioned in the preceding paragraph of this judgment.
23. As the Commission states in its observations, a distinction must be made between different situations depending on whether they existed before or after the entry into force of Regulation No 2605/98.
24. As regards the former situations, it must be observed that it is evident from the wording of Article 2(2) of Regulation No 1768/95 that the legitimate interests of the holder and of the farmer will be considered to be safeguarded only if account is taken of ‘the need to maintain a reasonable balance between all of them, or of the need for proportionality between the purpose of the relevant condition and the actual effect of the implementation thereof’.
25. Furthermore, Article 5(3) of Regulation No 1768/95 has, as decisive criterion for a ‘sensibly lower’ level of remuneration, the necessity of establishing or stabilising a reasonably balanced ratio between the use of licensed propagating material and the planting of the product of the harvest of the varieties covered by a Community plant variety right.
26. Moreover, Article 5(2) of the same regulation takes as a point of reference ‘the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area’.
27. As regards the situations which correspond to circumstances after the entry into force of Regulation No 2605/98, Article 5(5) of Regulation No 1768/95 contains, as remuneration to be paid to holders, a rate of 50% of the certified seed fee and even transitionally fixed a rate of 40% in order to encourage the conclusion of agreements between holders and farmers.
28. It follows that a standard rate fixed at 80% of the certified seed fee for calculating the remuneration to be paid to holders is too high and that, in order to determine the rate applicable, account has to be taken of the varieties at issue and the area concerned.
29. The answer to the first question must therefore be that, without prejudice to the assessment made by the national court of the other circumstances relevant to each of the main proceedings, a flat-rate remuneration of 80% of the amount of the certified seed fee in the event of recourse to the agricultural exemption referred to in Article 14(3) of the basic regulation does not satisfy the condition that the remuneration has to be ‘sensibly lower’ than the amount charged for the licensed production of propagating material within the meaning of Article 5(2) of Regulation No 1768/95. The second question
30. By its second question, the national court is essentially asking whether, in the context of establishing the holder’s rights, Article 5(4) and (5) of Regulation No 1768/95 contains rules for determining the amount of remuneration to be paid to the holder.
31. First, it is clear from the wording of Article 5(4) that the rules for determining the amount of that remuneration must be incorporated into agreements concluded between organisations of holders and of farmers and serve as guidelines when those agreements have been notified to the Commission and published by the Office.
32. Secondly, where there is no agreement, Article 5(5) of Regulation No 1768/95 fixes the amount of that remuneration at 50% of the amount of the certified seed fee, subject solely to the possibility of its adjustment by a national sliding scale in accordance with the seventh recital in the preamble to Regulation No 2605/98.
33. The national court also seeks to establish whether those rules express a general principle which applied before the entry into force of Regulation No 2605/98.
34. In this respect, the Commission submits that it is contrary to the principle of legal certainty to apply the provisions of that regulation retroactively to transactions concluded before its entry into force.
35. In that regard, it must be observed that the provisions of Article 5(4) and (5) of Regulation No 1768/95 were inserted by Regulation No 2605/98 and that they do not expressly state that those provisions may be applied retroactively to transactions prior to the entry into force of that latter regulation.
36. However, in supplementing Article 5 of Regulation No 1768/95 and by referring expressly to it, paragraphs 4 and 5 of that article may serve as a guide for ascertaining the amount of remuneration in relation to situations arising before their entry into force.
37. Therefore, the answer to the second question must be that the criteria for determining the remuneration to be paid to the holder are set out in Article 5(4) and (5) of Regulation No 1768/95. Those criteria have no retroactive effect but they may serve as a guide for the calculation of that remuneration with respect to planting carried out before the entry into force of Regulation No 2605/98. The third and fifth questions
38. By those two questions, the national court is asking about the scope and content of an agreement concluded between organisations of holders and of farmers.
39. First of all, it must be observed that, under Article 5(4) of Regulation No 1768/95, such an agreement is to be used as a guideline for the determination of the remuneration to be paid in the area if the levels of remuneration and the conditions thereof have been notified to the Commission and published in the Office’s Official Bulletin .
40. Secondly, it is clear from Article 5(5) of Regulation No 1768/95 that that remuneration is fixed at 50% of the amount of the certified seed fee when an agreement concluded between organisations of holders and of farmers does not apply.
41. Accordingly, that rate of 50% is not necessarily the only rate of remuneration capable of being adopted by the parties concerned during the negotiation of such an agreement.
42. Lastly, having regard to the wording of Regulation No 2605/98, which makes no distinction between agreements concluded before or after its entry into force, it must be stated that if an agreement has been concluded between organisations of holders and of farmers before the entry into force of Regulation No 2605/98, it can be used as a guideline only if it meets the aforementioned formal conditions as to notification and publication.
43. Having regard to the foregoing considerations, the answer to the third and fifth questions must be that, in order for an agreement concluded between organisations of holders and of farmers, as referred to in Article 5(4) of Regulation No 1768/95, to be used as a guideline as regards all its parameters, that agreement must have been notified to the Commission and published in the Official Bulletin of the Office and that is so even if it was concluded before the date on which Regulation No 2605/98 entered into force. Such an agreement may provide for a rate of remuneration different from that laid down, in the alternative, in Article 5(5) of Regulation No 1768/95. The fourth question
44. By that question, the Bundesgerichtshof is essentially asking the Court to state whether the percentage of 50% referred to in Article 5(5) of Regulation No 1768/95 constitutes an upper limit for establishing the remuneration.
45. First, it must be stated that Article 5(5) applies only when an agreement concluded between organisations of holders and of farmers does not apply.
46. Secondly, as the Advocate General observed at point 55 of his Opinion, it must be inferred from the very wording of that provision that the value stated is mandatory and does not merely represent an upper or lower limit. The fact that the Community legislature has provided for an exception in the second subparagraph of that provision does not invalidate that observation because that exception only applied for a limited period and was intended to encourage the speedy conclusion of agreements between organisations of holders and of farmers before 1 April 1999.
47. Consequently, the answer to the fourth question must be that, in the absence of an applicable agreement between organisations of holders and of farmers, the remuneration of a holder has to be established, pursuant to Article 5(5) of Regulation No 1768/95, as a fixed amount which constitutes neither an upper limit nor a lower limit. Costs
48. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.