1 By its appeal, Romagnoli Fratelli SpA seeks to have set aside the judgment of the General Court of the European Union of 17 April 2024, Romagnoli Fratelli v CPVO (Melrose) (T‑2/23, ‘the judgment under appeal’, EU:T:2024:247), by which the General Court dismissed its action for annulment of the decision of the Board of the Community Plant Variety Office (CPVO) of 7 November 2022 concerning an application for restitutio in integrum filed by Romagnoli Fratelli (‘the decision at issue’), following the cancellation of the Community plant variety right for the potato variety Melrose of which it had been the holder.
2 Article 42 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1), entitled ‘Functions and powers of the President’, provides, in paragraphs 1 and 2 thereof: ‘1. The Office shall be managed by the President. 2. To this end, the President shall have, in particular, the following functions and powers: …’
3 Article 79 of that regulation, headed ‘Service’, provides: ‘The Office shall of its own motion effect service of all decisions and summonses, and of notifications and communications, from which a time limit is reckoned, or which are required to be served either in pursuance of other provisions of this Regulation or by provisions adopted pursuant to this Regulation or by order of the President of the Office. …’
4 Article 80 of the said regulation, entitled ‘Restitutio in integrum’, provides: ‘1. Where, in spite of having taken all due care in the particular circumstances, the applicant for a Community plant variety right or the holder or any other party to proceedings before the Office has been unable to observe a time limit vis-à-vis the Office, his rights shall, upon application, be restored if his failure to respect the time limit has resulted directly, by virtue of this Regulation, in the loss of any right or means of redress. 2. Applications shall be filed in writing within two months after the cause of non-compliance when the time limit has ceased to operate. The act omitted shall be completed within this period. Applications shall be admissible only within the period of one year following the expiry of the time limit which has not been observed. 3. An application shall be accompanied by a statement of the grounds on which it is based and the facts on which it relies. …’
5 Article 81 of the same regulation, entitled ‘General principles’, is worded as follows: ‘1. In the absence of procedural provisions in this Regulation or in provisions adopted pursuant to this Regulation, the Office shall apply the principles of procedural law which are generally recognized in the Member States. …’
6 Article 57 of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 2009 L 251, p. 3), as amended by Commission Implementing Regulation (EU) 2016/1448 of 1 September 2016 (OJ 2016 L 236, p. 1) (‘Regulation No 874/2009’), prescribes the manner in which documents are to be ‘filed by parties to proceedings’ before the CPVO.
7 Article 64 of Regulation No 874/2009 provides: ‘1. In proceedings before the Office, any service of documents to be made by the Office on a party to proceedings shall take the form of a digital document, an uncertified copy, a print-out or the original document. Documents emanating from other parties to proceedings may be served in the form of uncertified copies. … 3. Service shall be made by one or more of the following means: 4. Documents or copies thereof containing actions for which service is provided for in Article 79 of the basic Regulation shall be served by electronic means to be determined by the President of the Office or by postal means by recorded delivery with advice of delivery served.’
8 Article 64a of that regulation provides: ‘1. Service by electronic means shall be made by transmitting a digital copy of the document to be notified. Service shall be deemed to have taken place on the date on which the communication was received by the recipient. The President of the Office shall determine the details of service by electronic means. 2. Where service is made by electronic means, a party to proceedings, including his procedural representative, shall provide an electronic address to the Office for all official communication. 3. The President of the Office shall determine the details of service by other technical means of communication.’
9 Article 65 of the said regulation establishes the details of service of documents sent by the CPVO by post.
10 Article 3 of the decision of the President of the Office of 20 December 2016 concerning electronic communication with and by the Office (‘the decision of the President of the CPVO’), entitled ‘MyPVR and other electronic restricted systems’, provides: ‘… Once the implementation of MyPVR will be completed, it will offer the option to receive all communications from the Office electronically. If the user chooses this option the Office will send all notifications electronically via this User Area, unless this is impossible for technical reasons. …’
11 Article 4 of that decision, entitled ‘Service by electronic means’, is worded as follows: ‘Once the user has activated the option that the Office communicates with him electronically, all electronically available official notifications from the Office to the user will be made via MyPVR. The service of documents containing actions for which the former is provided for in Article 79 of the Basic Regulation shall be done via MyPVR. The user is notified by e-mail when a digital copy of the document is available in MyPVR. The same notice appears as the user logs on to MyPVR. The date and time of service is the point in time at which the user accesses the electronic document. The relevant time is that of France. However a decision or other document is deemed to have been notified on the expiry of the seventh day following the day on which an e-mail was sent to the user notifying him that the digital copy of the decision or document was placed by the Office in the User Area … If users cannot access a decision or other documents, they should inform the CPVO of it immediately.’
12 Article 6 of the said decision provides that the terms and conditions concerning electronic communication with and by the CPVO within MyPVR available on the CPVO website are further to specify the e-actions, the requirements thereof and the technical conditions under which electronic notifications and/or communications with and by the CPVO can be made, as well as the standard undertakings that have to be signed by the users.
13 The background to the dispute is set out in paragraphs 2 to 11 of the judgment under appeal as follows:
14 By application lodged at the Registry of the General Court on 5 January 2023, the appellant brought an action based on Article 263 TFEU seeking annulment of the decision at issue.
15 In support of that action, the appellant raised two pleas in law, the first alleging infringement of Article 80(1) of Regulation No 2100/94, the second alleging infringement of Article 65 of Regulation No 874/2009.
16 After having found, in paragraphs 31 to 33 of the judgment under appeal, that certain annexes attached to the application were inadmissible because they had not been produced by the appellant during the administrative procedure, the General Court rejected both pleas.
17 As regards the first plea, the General Court held, in paragraphs 36 to 49 of the judgment under appeal, that the appellant had failed to show that the conditions laid down in Article 80(1) of Regulation No 2100/94, giving entitlement to restitutio in integrum, were satisfied. It had not proved that it had faced ‘particular circumstances’, within the meaning of that provision, or that it had acted with all due care in view of those circumstances.
18 As regards the second plea, the General Court, first, rejected, in paragraphs 52 to 70 of that judgment, a first complaint, alleging the unlawfulness of the MyPVR user area for the official notifications of the CPVO in respect of the appellant.
19 In particular, after having noted, in paragraph 54 of the said judgment, that the debit note of 27 October 2021 and the reminder of 10 January 2022 constituted ‘notifications [or] communications, from which a time limit is reckoned’, within the meaning of Article 79 of Regulation No 2100/94, the General Court held that such documents could validly be served electronically via the MyPVR user area, in accordance with the details determined by the President of the CPVO, provided that the user concerned had activated the option enabling the CPVO to communicate those documents electronically.
20 Second, after having pointed out, in paragraph 73 of the same judgment, that the appellant had opted for the communication of the said documents by electronic means, as provided for in Article 64a of Regulation No 874/2009, in accordance with the details fixed in the decision of the President of the CPVO, the General Court rejected the second complaint, holding that the debit note of 27 October 2021 and the reminder of 10 January 2022 had been validly notified by the CPVO to the appellant via MyPVR.
21 Consequently, by the judgment under appeal, the General Court dismissed the action in its entirety.
22 The appellant claims that the Court of Justice should: - set aside the judgment under appeal; - annul the decision at issue; and - order the CPVO to pay the costs.
23 The CPVO contends that the Court should: - dismiss the appeal; and - order the appellant to pay the costs.
24 In support of its appeal, the appellant raises three grounds of appeal, the first alleging that the decision of the President of the CPVO was unlawful, the second alleging breach of the CPVO’s duty of care, and the third alleging an incorrect assessment of the evidence relating to the demonstration of a case of force majeure and of the unforeseeability of the events with which the appellant had been faced.
25 By the first ground of appeal, the appellant submits, first, that Article 65 of Regulation No 874/2009, entitled ‘Service by post’, is the only relevant rule as regards the communication of official notifications from the CPVO. As the decision of the President of the CPVO provides for service by electronic means, thereby departing from the legislative framework laid down in that article, it cannot be applicable to determine whether such a document has been validly served. The General Court wrongly recognised the applicability of that decision of the President of the CPVO. Such applicability as well as the implementation of the conditions set out in that decision, however, would have the effect of releasing the CPVO from its obligation to prove the precise day of service and of placing, consequently, a ‘probatio diabolica’ on the appellant, thereby violating its rights of defence. In that context, the appellant claims that it never received the reminder of the debit note of 10 January 2022.
26 Second, the General Court infringed Article 57 of Regulation No 874/2009, which enshrines the freedom of choice of the holder of a plant variety right with regard to correspondence with the CPVO. The decision of the President of the CPVO, however, imposes a form of correspondence with that office, namely electronic communication via the MyPVR user area. According to the appellant, however, Regulations No 2100/94 and No 874/2009 do not provide that that MyPVR user area may be used as a means of serving documents and decisions on an intellectual property rights holder.
27 The CPVO disputes the admissibility and, in any event, the merits of the first ground of appeal.
28 As a preliminary point, it should be borne in mind that, by virtue of Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (order of 16 July 2024, Yeguada de Milagro v Tribunal Constitucional, C‑360/24 P, EU:C:2024:633, paragraph 9).
29 In the case at hand, while it is true that, in the first ground of appeal, the appellant does not expressly identify the paragraphs of the judgment under appeal which it challenges, it explicitly criticises the General Court for having rejected its arguments alleging that the decision of the President of the CPVO was unlawful, and reproduces in that regard elements which appear in that judgment, thereby enabling them to be identified (see, to that effect, judgment of 21 December 2021, Aeris Invest v SRB, C‑874/19 P, EU:C:2021:1040, paragraph 51). It has also developed with sufficient precision the legal arguments which specifically support that ground. Accordingly, the said ground of appeal must be deemed admissible.
30 In terms of the merits of the same ground of appeal, it should be noted, as a preliminary point, that, in paragraph 71 of the judgment under appeal, the General Court ruled on the alleged infringement of Article 65 of Regulation No 874/2009, relied on by the applicant before it on the ground that the CPVO had not provided proof of actual notification and receipt of the reminder sent on 10 January 2022. In that regard, the General Court stated, in that paragraph 71, that it was apparent from the CPVO’s file that the reminder had been sent via MyPVR. Therefore, according to the General Court, Article 65 of Regulation No 874/2009, relating to service by post, was not applicable in the case at hand.
31 It follows from the foregoing that the appellant’s argument that the only rule applicable in the present case is that provided for in Article 65 of Regulation No 874/2009 cannot be upheld, in the absence of a precise line of legal argument demonstrating the error of law committed by the General Court when, in paragraph 71 of the judgment under appeal, it dismissed the relevance of that Article 65.
32 In addition, it should be noted, first, that, as the General Court recalled in paragraph 55 of the judgment under appeal, under Article 64(4) of Regulation No 874/2009, documents or copies thereof containing actions for which service is provided for in Article 79 of Regulation No 2100/94 ‘are to be served by electronic means to be determined by the President of the CPVO’ or by postal means by recorded delivery with advice of delivery served.
33 Consequently, the power of the President of the CPVO to determine the means of the electronic service of documents or of copies thereof containing actions, for which service is provided for in Article 79 of Regulation No 2100/94, is expressly recognised in Article 64(4) of Regulation No 874/2009.
34 The President of the CPVO was merely exercising the power conferred on him by that provision in adopting the decision of 20 December 2016, which specifies, inter alia, in the first paragraph of Article 4 thereof, that, once the user concerned has activated the option allowing communication by electronic means, all electronically available official notifications from the CPVO to him or her are to be made via MyPVR.
35 In addition, as the General Court noted in paragraph 67 of the judgment under appeal, it was not disputed by the parties that the appellant had opted for electronic communication via MyPVR. Such a finding has not, moreover, been called into question in the context of the appeal.
36 It follows from the foregoing considerations that the General Court did not err in law in considering that the decision of the President of the CPVO was applicable in the case at hand.
37 Second, as the General Court recalled in paragraph 75 of the judgment under appeal, under the fourth paragraph of Article 4 of the decision of the President of the CPVO, a decision or other document is deemed to have been notified on the expiry of the seventh day following the day on which an email was sent to the user informing him or her that the digital copy of the decision or document was uploaded by the CPVO to the user area. Furthermore, it is apparent from the documents in the General Court’s file that the CPVO had uploaded the debit note of 27 October 2021 and the reminder of 10 January 2022 to the appellant’s user area and that emails were sent to it to inform it of those uploads. In those circumstances, in order effectively to challenge the service of that debit note and of that reminder, it was for the appellant to prove that those documents had not been placed in its MyPVR user area or that it had not received the related confirmation emails, which it did not do. Consequently, the General Court did not err in law in finding that, having regard to the appellant’s adherence to the details of service defined by the decision of the President of the CPVO and specified in version 3.0 of the MyPVR terms and conditions, the debit note of 27 October 2021 and the reminder of 10 January 2022 had been validly served on the appellant.
38 Third, so far as concerns the appellant’s argument that the decision of the President of the CPVO imposed a form of correspondence on it, it is not disputed that it opted to use MyPVR in full knowledge of the facts, as has been mentioned in paragraph 35 of the present judgment. In so doing, it made a deliberate choice. In any event, it should be noted that Article 57 of Regulation No 874/2009 relied on by the appellant relates to the filing of documents by parties to the proceedings, without prejudice to the service by the CPVO of documents to those parties, which is disputed in the present case by the appellant. Therefore, that line of argument cannot succeed, either.
39 Accordingly, the first ground of appeal must be rejected as unfounded.
40 By the second ground of appeal, the appellant complains that the CPVO failed to inform it with the necessary precision of the evidence which it ought to have produced in order to demonstrate the reality of the case of force majeure and the unforeseeability of the event with which it had been faced and which justified its lack of response to the debit note of 27 October 2021 and to the reminders of 10 January and 16 February 2022. In addition, the appellant notes that it was likewise not informed of the necessity of being assisted by a lawyer. In so doing, the CPVO breached its duty of care.
41 The appellant adds that the decision at issue is not sufficiently precise as regards the consequences which the appellant incurred as a result of its conduct.
42 The CPVO disputes the admissibility and, in any event, the merits of the second ground of appeal.
43 In so far as, by its second ground of appeal, the appellant seeks to call into question the CPVO’s conduct as well as certain considerations set out in the decision at issue, suffice it to recall that the arguments of an appeal which criticise not the judgment delivered by the General Court following an application for annulment of a decision but the decision whose annulment was sought before the General Court or the conduct of the office which delivered that decision are not admissible (see, by analogy, judgment of 27 April 2023, PL v Commission, C‑537/21 P, EU:C:2023:363, paragraph 108 and the case-law cited).
44 Accordingly, the second ground of appeal must be rejected as inadmissible.
45 By the third ground of appeal, the appellant complains that the General Court made an incorrect and imprecise assessment of the evidence that it produced to show that it had been faced with unforeseeable events constituting a case of force majeure.
46 The CPVO disputes the third ground of appeal.
47 It is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of the facts and evidence does not, save where the facts or evidence are distorted, constitute a point of law, which is subject, as such, to review by the Court of Justice on appeal (judgments of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 71, and of 4 October 2024, García Fernández and Others v Commission and SRB, C‑541/22 P, EU:C:2024:820, paragraph 211).
48 In addition, a distortion of the facts or evidence must be clear from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. In the light of the exceptional nature of a ground of appeal alleging distortion of the facts and evidence, an appellant must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (judgment of 12 December 2024, DD v FRA, C‑680/22 P, EU:C:2024:1019, paragraph 35).
49 First, in so far as it criticises the General Court for its interpretation of the evidence that it produced in support of its action for annulment, the appellant requests the Court of Justice to carry out a fresh assessment of that evidence, without, however, alleging that it has been distorted. The appellant does not allege any distortion of the evidence submitted for examination by the General Court in that context or any material inaccuracy in its findings, which are manifestly apparent from the documents in the file.
50 Second, it should be noted that, in paragraphs 9 and 37 of the appeal, the appellant substantiates its request with evidence which was deemed inadmissible by the General Court in paragraphs 31 to 33 of the judgment under appeal, on account of the fact that it had not been produced by the appellant during the administrative procedure before the CPVO.
51 As the appellant has not challenged that inadmissibility, however, it cannot rely on such evidence at the appeal stage.
52 It follows that the third ground of appeal must be rejected as inadmissible.
53 In the light of all the foregoing reasons, the appeal must be dismissed as partly inadmissible and partly unfounded.
54 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
55 Since the appellant has been unsuccessful, it must, in accordance with the form of order sought by the CPVO, be ordered to bear its own costs and to pay those incurred by the CPVO. 1. Dismisses the appeal; 2. Orders Romagnoli Fratelli SpA to pay the costs.