1 This request for a preliminary ruling concerns the validity of Article 18(2) 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’), in the light of the first sentence of Article 94(2) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).
2 The request has been made in proceedings between MS and Saatgut Treuhandverwaltungs GmbH (‘STV’) concerning the calculation of the amount of compensation for damage suffered by STV as a result of the illegal planting by MS of the KWS Meridian winter barley variety.
3 Article 11 of Regulation No 2100/94, entitled ‘Entitlement to Community plant variety rights’, provides, in paragraph 1: ‘The person who bred, or discovered and developed the variety, or his successor in title, both - the person and his successor - referred to hereinafter as “the breeder”, shall be entitled to the Community plant variety right.’
4 Article 13 of Regulation No 2100/94, entitled ‘Rights of the holder of a Community plant variety right and prohibited acts’, provides, in paragraphs 1 to 3: ‘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. 2. Without prejudice to the provisions of Articles 15 and 16, the following acts in respect of variety constituents, or harvested material of the protected variety, both referred to hereinafter as “material”, shall require the authorisation of the holder: (a) production or reproduction (multiplication); … The holder may make his authorisation subject to conditions and limitations. 3. The provisions of paragraph 2 shall apply in respect of harvested material only if this was obtained through the unauthorised use of variety constituents of the protected variety, and unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents.’
5 Article 14 of the regulation, entitled ‘Derogation from Community plant variety right’, is worded as follows: ‘1. 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. 2. The provisions of paragraph 1 shall only apply to agricultural plant species of: … (b) Cereals: … Hordeum vulgare L. - Barley … 3. Conditions to give effect to the derogation provided for in paragraph 1 and to safeguard the legitimate interests of the breeder and of the farmer shall be established, before the entry into force of this Regulation, in implementing rules pursuant to Article 114, on the basis of the following criteria: - there shall be no quantitative restriction of the level of the farmer’s holding to the extent necessary for the requirements of the holding, - the product of the harvest may be processed for planting, either by the farmer himself or through services supplied to him, without prejudice to certain restrictions which Member States may establish regarding the organisation of the processing of the said product of the harvest, in particular in order to ensure identity of the product entered for processing with that resulting from processing, - small farmers shall not be required to pay any remuneration to the holder; … … - other farmers shall be 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, - monitoring compliance with the provisions of this Article or the provisions adopted pursuant to this Article shall be a matter of exclusive responsibility of holders; in organising that monitoring, they may not provide for assistance from official bodies, - relevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services; relevant information may equally be provided by official bodies involved in the monitoring of agricultural production, if such information has been obtained through ordinary performance of their tasks, without additional burden or costs. …’
6 Article 94 of the regulation, entitled ‘Infringement’, is worded as follows: ‘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; … … 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 may 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.’
7 Article 114 of Directive No 2100/94, under the heading ‘Other implementing rules’, provides, in paragraph 1: ‘Detailed implementing rules shall be adopted for the purpose of applying this Regulation. …’
8 Regulation No 1768/95 was adopted on the basis of Article 114 of Regulation No 2100/94.
9 Article 5 of Regulation No 1768/95, entitled ‘Level of remuneration’, provides: ‘1. The level of the equitable remuneration to be paid to the holder pursuant to Article 14(3), fourth indent of [Regulation No 2100/94] 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. … 4. Where in the case of paragraph 2 the level of remuneration is the subject of agreements between organisations of holders and of farmers, … 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 … 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. …’
10 Article 17 of that regulation, headed ‘Infringement’, provides: ‘The holder may invoke the rights conferred by the Community plant variety right against a person who contravenes any of the conditions or limitations attached to the derogation pursuant to Article 14 of [Regulation No 2100/94] as specified in this Regulation.’
11 Article 18 of the regulation, entitled ‘Special civil law claims’, provides: ‘1. A person referred to in Article 17 may be sued by the holder to fulfil his obligations pursuant to Article 14(3) of [Regulation No 2100/94] as specified in this Regulation. 2. If such person has repeatedly and intentionally not complied with his obligation pursuant to Article 14(3) 4th indent of [Regulation No 2100/94], in respect of one or more varieties of the same holder, the liability to compensate the holder for any further damage pursuant to Article 94(2) of [Regulation No 2100/94] shall cover at least a lump sum calculated on the basis of the quadruple average amount charged for the licensed production of a corresponding quantity of propagating material of protected varieties of the plant species concerned in the same area, without prejudice to the compensation of any higher damage.’
12 STV is an association of holders of protected plant variety rights which has been tasked by its members to defend their rights and, in particular, to assert rights to information and entitlements to payment rights in its own name.
13 MS is a farmer who planted, during the four marketing years 2012/2013 to 2015/2016, the ‘KWS Meridian’ winter barley variety, which is protected under Regulation No 2100/94.
14 STV brought an action seeking, inter alia, information on that planting. MS provided, for the first time before the court of first instance, information on the processing of the seeds of the ‘KWS Meridian’ winter barley variety for those marketing years, that is, 24.5, 26, 34 and 45.4 quintals of seeds respectively.
15 MS then paid, for the 2013/2014, 2014/2015 and 2015/2016 marketing years, amounts corresponding to the fee charged for licensed production of the ‘KWS Meridian’ winter barley variety, calculated in the same way as that for the marketing year 2015/2016; that amount corresponds to reasonable compensation within the meaning of Article 94(1) of Regulation No 2100/94.
16 STV sought payment of additional damages in respect of the three marketing years in question, in the amount of quadruple the fee, as compensation under Article 94(2) of Regulation No 2100/94, read in conjunction with Article 18(2) of Regulation No 1768/95 (‘the provision at issue’), deducting from that amount the amount of the fee paid by MS in respect of those three marketing years.
17 MS challenged STV’s entitlement to that payment. In that regard, he maintained, in essence, that the damage caused to STV had been made good by the payment of reasonable compensation, within the meaning of Article 94(1) of Regulation No 2100/94, rather than the payment of the planting fee, determined in accordance with Article 5(5) of Regulation No 1768/95. He also submitted that the imposition of general and additional punitive damages was not compatible with the Court’s case-law.
18 By judgment of 4 December 2020, the Landgericht Kaiserslautern (Regional Court, Kaiserslautern, Germany) essentially upheld STV’s claim, specifying that it was referring to the clear wording of the provision at issue.
19 MS appealed against that judgment before the Pfälzisches Oberlandesgericht Zweibrücken (Palatine Higher Regional Court, Zweibrücken, Germany), the referring court. According to MS, the provision at issue must be declared invalid on the ground that it does not comply with Article 94(2) of Regulation No 2100/94, which, he claims, does not allow for the holder to be awarded punitive damages on a lump-sum basis equivalent, in the present case, to quadruple the fee due for licensed production (‘the licence fee’).
20 STV submits that the provision at issue does not infringe Article 94(2) of Regulation No 2100/94 and that it is consistent with the Court’s case-law.
21 The referring court considers that the decision which it is required to make depends exclusively on the validity of the provision at issue. After recalling that an implementing regulation adopted on the basis of an enabling provision in the basic regulation may not derogate from the provisions of that regulation, to which it is subordinate, and should be annulled in the event of contradiction, it observes that the provision at issue, by which the Commission set a minimum level of compensation as a lump sum which is quadruple the amount of the licence fee, could infringe the first sentence of Article 94(2) of Regulation No 2100/94 and be annulled on that basis.
22 In that regard, the referring court notes that, in order to offset the advantage gained by the infringer, Article 94(1) of the regulation provides for reasonable compensation, corresponding to the amount of the licence fee. In that context, the first sentence of Article 94(2) of the regulation could be interpreted as meaning that the holder may be entitled to compensation for further damage, in the event of intentional or negligent infringement, only if that damage can be demonstrated in concrete terms. According to the referring court, the case-law of the Court suggests that the setting, by way of a general rule, of a minimum level of damage is not compatible with the first sentence of Article 94(2) of Regulation No 2100/94.
23 In those circumstances, the Pfälzisches Oberlandesgericht Zweibrücken (Palatine Higher Regional Court, Zweibrücken) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Is Article 18(2) of [Regulation No 1768/95], in so far as a minimum level of compensation of quadruple the licence fee can be claimed under the conditions laid down therein, compatible with [Regulation No 2100/94], in particular with the first sentence of Article 94(2) of that regulation?’
24 In its observations, the Commission - without, however, openly submitting that the request for a preliminary ruling is inadmissible - observes that the circumstances surrounding the main proceedings, as set out in the order for reference, are unclear. It has doubts as to whether, in the present case, the conditions set out in Article 14(1) of Regulation No 2100/94 and in particular those of using the product of the harvest of a protected variety for the purposes of safeguarding agricultural production, for propagating purposes, in the field, on the farmer’s own holding, were satisfied during the marketing years 2013/2014 to 2015/2016. The Commission states that, if that is not the case, that provision and the provision at issue are not relevant to the outcome of the dispute and the answer to the question referred for a preliminary ruling is not decisive in that regard. It points out, nevertheless, that that question whether the factual conditions laid down in Article 14 are met can be assessed only by the referring court, which is responsible for establishing all the relevant facts.
25 It should be noted that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court. Consequently, where the questions submitted by the national court concern the validity of a rule of EU law, the Court is, in principle, bound to give a ruling (judgment of 16 July 2020, Facebook Ireland and Schrems, C‑311/18, EU:C:2020:559, paragraph 73 and the case-law cited).
26 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation or assessment of the validity of an EU rule which is sought bears no relation to the actual facts of the main action or its purpose, 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 (judgment of 28 April 2022, Caruter, C‑642/20, EU:C:2022:308, paragraph 29 and the case-law cited).
27 In the present case, it is apparent from the order for reference that the national court has doubts, not as to whether the provision at issue is applicable to the dispute in the main proceedings, but as to whether it is valid in the light of Regulation No 2100/94, the first sentence of Article 94(2) thereof in particular. It is also apparent from the order for reference that MS argued, at first instance, that the damage caused to STV had been made good by the payment of reasonable compensation, within the meaning of Article 94(1) of Regulation No 2100/94, rather than by the payment of the planting fee, determined in accordance with Article 5(5) of Regulation No 1768/95. The latter provision relates to the equitable amount of remuneration to be paid to the holder pursuant to the fourth indent of Article 14(3) of Regulation No 2100/94, which presupposes that the conditions set out in Article 14(1) of the regulation, in particular those of using the product of the harvest of a protected variety for the purposes of safeguarding agricultural production, for propagating purposes, in the field, on the farmer’s own holding, are satisfied. The order for reference states, lastly, that the dispute of the parties to the main proceedings relates only to the amount of the damages to be paid on account of unauthorised planting.
28 As a result, it is not apparent, much less obvious, that the assessment of validity sought by the referring court bears no relation to the actual facts of the dispute in the main proceedings or its purpose or that the problem is hypothetical.
29 It follows that the request for a preliminary ruling is admissible.
30 By its single question, the referring court asks, in essence, whether the provision at issue is invalid in the light of the first sentence of Article 94(2) of Regulation No 2100/94, in so far as it provides, in the case of repeated and intentional infringement of the obligation to pay the equitable remuneration due under the fourth indent of Article 14(3) of that regulation, for compensation for the damage suffered by the holder in the amount of at least a lump sum calculated on the basis of quadruple the average amount charged for the licensed production of propagating material of protected varieties of the plant species concerned in the same area.
31 It should be noted that Article 13(2) of Regulation No 2100/94 provides that the authorisation of the holder is required, in respect of variety constituents or harvested material of the protected variety, inter alia, for production or reproduction (multiplication).
32 However, for the purposes of safeguarding agricultural production, Article 14(1) of the regulation provides that, by derogation from the obligation to obtain the authorisation of the holder, farmers may use, for the purposes of multiplication 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 protected variety included in the list of agricultural plant species listed in Article 14(2) of the regulation. The application of that derogation is subject to certain conditions being satisfied.
33 Article 14(3) of Regulation No 2100/94 (i) provides that those conditions are laid down in the implementing regulation referred to in Article 114 of the regulation, on the basis of criteria to give effect to that derogation and safeguard the legitimate interests of the breeder, defined in Article 11(1) of the regulation, and the farmer and (ii) sets out those various criteria. Those criteria laid down in the fourth indent of Article 14(3) of that regulation include the payment to the holder of equitable remuneration to be paid in respect of that use (‘equitable remuneration by way of derogation’). That remuneration must be sensibly lower than the amount of the licence fee.
34 A farmer who is covered by the fourth indent of Article 14(3) of Regulation No 2100/94 but who does not pay the remuneration referred to therein to the holder cannot rely on the derogation provided for in Article 14(1) of the regulation and must be regarded as carrying out, without authorisation, one of the acts referred to in Article 13(2) of the regulation. Under Article 94(1) of that regulation, an action may be brought against such a farmer 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 damage suffered by the holder in accordance with Article 94(2) of the regulation (see, to that effect, judgment of 25 June 2015, Saatgut-Treuhandverwaltung, C‑242/14, EU:C:2015:422, paragraph 22 and the case-law cited).
35 Given that Regulation No 1768/95 is intended to provide further detail in relation to the criteria laid down in Article 14(3) of Regulation No 2100/94 and that, in exercising its implementing powers, the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of that regulation, provided that they are not, inter alia, contrary to it (see, to that effect, judgment of 15 October 2014, Parliament v Commission, C‑65/13, EU:C:2014:2289, paragraph 44 and the case-law cited), it is necessary to determine whether, by providing, by the provision at issue, for a minimum lump sum as compensation for the damage suffered by the holder, the Commission failed to have regard to Article 94(2) of Regulation No 2100/94 as interpreted by the Court.
36 According to the Court’s case-law, Article 94 of Regulation No 2100/94 establishes for the holder of a Community plant variety right an entitlement to compensation which not only is full but which also rests on an objective basis, that is to say, it covers solely the damage which he or she has sustained as a result of the infringement, although that article cannot serve as a basis for the imposition of a flat-rate infringer supplement (see, to that effect, judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraphs 33 and 43).
37 Article 94 of Regulation No 2100/94 cannot therefore be interpreted as providing a legal basis, to the benefit of the rightholder, which permits an infringer to be required to pay punitive damages, established on a flat-rate basis (judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraph 34).
38 Rather, the extent of the compensation payable under Article 94 must reflect, as accurately as possible, the actual and certain damage suffered by that holder because of the infringement (judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraph 35).
39 On the one hand, the purpose of Article 94(1) of Regulation No 2100/94 is that financial compensation should be paid in respect of the benefit which has been gained by the person who committed the infringement, that benefit corresponding to the amount equivalent to the licence fee which that person has failed to pay. The Court has stated in that regard that Article 94(1) does not provide for reparation for damage other than damage connected to the failure to pay ‘reasonable compensation’ within the meaning of that provision (judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraph 31 and the case-law cited).
40 On the other hand, Article 94(2) of Regulation No 2100/94 concerns the ‘further damage’ for which an infringer must compensate the holder of a Community plant variety right where the infringer has acted ‘intentionally or negligently’ (judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraph 32).
41 Regarding the extent of the compensation for the damage suffered, provided for in Article 94(2) of Regulation No 2100/94, the Court has observed that the holder of the variety infringed must produce evidence which establishes that his or her damage goes beyond the matters covered by the reasonable compensation provided for in Article 94(1) (judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraph 56).
42 In that respect, the amount of the licence fee cannot in itself form the basis for determining that damage. In fact, such a fee enables the reasonable compensation provided for in Article 94(1) of Regulation No 2100/94 to be calculated and does not necessarily have any connection with the damage which has yet to be compensated (see, to that effect, judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraph 57).
43 In any event, it is the court seised which must determine whether the damage pleaded by the holder of the variety infringed can be precisely established or whether it is necessary to set a lump sum which reflects the actual damage as accurately as possible (judgment of 9 June 2016, Hansson, C‑481/14, EU:C:2016:419, paragraph 59).
44 The validity of the provision at issue in the light of the first sentence of Article 94(2) of Regulation No 2100/94 must be examined in the light of those considerations.
45 In the first place, it must be noted that the provision at issue sets a minimum lump sum calculated by reference to the average amount of the licence fee, although the amount of that fee cannot per se form the basis for determining the damage under Article 94(2) of Regulation No 2100/94, as recalled in paragraph 42 of the present judgment.
46 In the second place, the establishment of a minimum lump sum as compensation for the damage suffered by the holder means, as stated by the Commission in answer to a question put by the Court, that that holder is not required to prove the extent of the damage suffered, merely the existence of repeated and intentional infringement of the holder’s rights. As recalled in paragraphs 38 and 41 of the present judgment, compensation under Article 94 of Regulation No 2100/94 must reflect, as accurately as possible, the actual and certain damage suffered by that holder, who must produce evidence which establishes that the damage referred to in Article 94(2) goes beyond the matters covered by the reasonable compensation provided for in Article 94(1).
47 The establishment of a minimum lump sum for compensation also means that there is an irrebuttable presumption regarding the minimum extent of that damage and limits the court’s discretion, as that court can only increase the minimum lump sum established by the provision at issue, but not decrease it, even if - as acknowledged by the Commission in answer to a question put by the Court during the hearing on that point - the real damage can easily be established and proves to be lower than that minimum lump sum.
48 Lastly, according to the case-law recalled in paragraph 43 of the present judgment, compensation under Article 94(2) of Regulation No 2100/94 may be set as a lump sum only on the basis of an assessment carried out by the court seised. As a result, by providing for a minimum lump sum to make good the damage suffered by the holder, the provision at issue also limits the court’s discretion in that regard.
49 In the third place, while, as recalled in paragraphs 37 and 38 of the present judgment and as noted by the Advocate General in point 83 of his Opinion, the extent of the compensation due under Article 94 of Regulation No 2100/94 must reflect, as accurately as possible, the actual and certain damage suffered by that holder without amounting to punitive damages, the provision at issue can, by establishing the level of compensation for such damage at a minimum lump sum calculated on the basis of quadruple the average amount of the licence fee, lead to punitive damages being awarded.
50 In the fourth place, regarding the Commission’s arguments based on the judgment of 25 January 2017, Stowarzyszenie Oławska Telewizja Kablowa (C‑367/15, EU:C:2017:36), as observed by the Advocate General in points 87 and 88 of his Opinion, the case that gave rise to that judgment concerned the interpretation of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45), whereas, in the present case, the Court is called upon to assess the validity of a provision of Regulation No 1768/95, which is an implementing measure of Regulation No 2100/94 and, as noted in paragraph 35 of the present judgment, must as such comply with that regulation, Article 94(2) thereof in particular. In addition, that directive concerns all intellectual property rights, not only Community plant variety rights, and the scope of possible infringements of the rights it covers is broad. Consequently, even if that directive may, as the case may be, constitute a relevant aspect to take into account for the purposes of interpreting Regulation No 2100/94, it is important, however, to avoid attributing, under the guise of a textual interpretation of that regulation, a scope thereto which does not correspond to its wording and purpose regarding Community plant variety rights.
51 As is apparent from paragraphs 45 to 49 of the present judgment, in so far as it sets the amount of the compensation to be paid in relation to the licence fee, establishes an irrebuttable presumption as to the minimum extent of the damage suffered by the holder and limits the discretion of the court seised, the provision at issue is contrary to Article 94(2) of Regulation No 2100/94 as interpreted by the Court. The fact, raised by STV and by the Commission, that that provision applies only in the case of repeated and intentional infringement of the obligation to pay equitable remuneration by way of derogation due under the fourth indent of Article 14(3) of that regulation, is not such as to alter that finding. Accordingly, by the adoption of the provision at issue, the Commission, having regard to Article 94(2) of Regulation No 2100/94, went beyond the scope of its implementing power.
52 It follows from all the foregoing considerations that the provision at issue is invalid in the light of the first sentence of Article 94(2) of Regulation No 2100/94, in so far as it provides, in the case of repeated and intentional infringement of the obligation to pay equitable remuneration by way of derogation due under the fourth indent of Article 14(3) of Regulation No 2100/94, for compensation for the damage suffered by the holder in the amount of at least a lump sum calculated on the basis of quadruple the average amount charged for the licensed production of propagating material of protected varieties of the plant species concerned in the same area.
53 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.