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Opinion of Advocate General Campos Sánchez-Bordona delivered on 18 January 2017.
Schniga GmbH v Community Plant Variety Office.
Appeal — Community plant variety rights — Application for a Community plant variety right — Apple variety ‘Gala Schnitzer’ — Technical examination — Test guidelines issued by the Administrative Council of the Community Plant Variety Office (CPVO) — Regulation (EC) No 1239/95 — Article 23(1) — Powers of the President of the CPVO — Addition of a distinctive characteristic on completion of the technical examination — Stability of the characteristic during two growing cycles.
Case C-625/15 P.

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OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 18 January 2017 ( 1 )

Case C‑625/15 P

Schniga GmbH

v

Community Plant Variety Office (CPVO)

‛Appeal — Community plant variety rights — Apple variety ‘Gala Schnitzer’ — Opposition — Refusal by the Board of Appeal of the application for a Community plant variety right — Annulment by the General Court — New decision of the Board of Appeal rejecting the application for a Community plant variety right’

1. 

More than 17 years have passed since the Konsortium Südtiroler Baumschuler, the legal predecessor of Schniga GmbH (‘Schniga’), filed an application for a plant variety right with the Community Plant Variety Office (CPVO). ( 2 ) It related to an apple variety called Gala Schnitzer, and it has not yet been possible to decide definitively whether that Office must allow the application or refuse it.

2. 

On 26 February 2007, the competent CPVO committee granted the right applied for to the apple variety Gala Schnitzer, ( 3 ) finding that it was sufficiently distinct from the variety Baigent, whose existence had been raised by its holder (Brookfield) in order to oppose the new registration. However, the grant of 26 February 2007 was annulled on 21 November 2007 by the Board of Appeal of the CPVO, owing to certain procedural irregularities.

3. 

An action was brought against the decision of the Board of Appeal of 21 November 2007 before the General Court, which annulled that decision by judgment of 13 September 2010. ( 4 )

4. 

Once the judgment of the General Court of 13 September 2010 had become final (when the Court of Justice dismissed the appeal brought against it), ( 5 ) the Board of Appeal of the CPVO had to review the objection to the Committee’s decision of 26 February 2007.

5. 

By decisions of 20 September 2013, ( 6 ) the Board of Appeal of the CPVO again annulled the grant of 26 February 2007, again for reasons relating, in particular, to the procedure followed.

6. 

Schniga contested those two decisions of the Board of Appeal before the General Court which, this time, confirmed them by judgment of 10 September 2015, Schniga v CPVO — Brookfield New Zealand and Elaris (Gala Schnitzer) ( 7 ) (‘the judgment under appeal’), against which this appeal is brought.

7. 

This is, therefore, the second time that the dispute concerning the same plant variety has come before the Court of Justice; it focuses, rather than on its substantive aspects (that is, on the differences between the two kinds of apple), on the procedural aspects. The technical examination of the genetic material, on which a declaration that the plant variety is distinctive largely depends, is key to the CPVO granting or refusing the right. Therefore, the rules governing the manner in which that examination is to be made out have legal relevance.

8. 

Schniga seeks to obtain the longed-for protection of the right over the apple variety Gala Schnitzer, which it considers to be new, stable and distinct, given the significant innovative nature of the width of its stripes. In the judgment at issue, however, the General Court, on confirming the decisions of the Board of Appeal, refused it protection because, in essence: (a) of failure to comply, ratione temporis, with certain guidelines for the technical examination, and (b) of the alleged exceeding of his powers by the President of the CPVO.

I – Legal framework

A – EU law

1. Regulation (EC) No 2100/94 ( 8 )

9.

Under Article 6, Plant variety rights are to be granted for varieties that are distinct, uniform, stable and new. Of those criteria, the first three are designated, in English, by the acronym DUS, derived from the initials of those corresponding qualities. ( 9 )

10.

According to Article 7(1) a variety is to be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application.

11.

The remaining criteria of uniformity, stability and novelty are found in Articles 8, 9 and 10 of Regulation No 2100/94, respectively.

12.

Whether the DUS criteria have been met is verified in every case by means of a technical examination, carried out in accordance with Articles 55 and 56 of Regulation No 2100/94.

13.

Under Article 55(1) of that regulation:

‘1. Where the Office has not discovered any impediment to the grant of a Community plant variety right on the basis of the examination pursuant to Articles 53 and 54, it shall arrange for the technical examination relating to compliance with the conditions laid down in Articles 7, 8 and 9 [DUS criteria] to be carried out by the competent office or offices in at least one of the Member States ...’

14.

Article 56(2) states:

‘2.   The conduct of any technical examinations shall be in accordance with test guidelines issued by the Administrative Council and any instructions given by the Office.’

15.

In general, those guidelines describe the plant material required for the technical examination, the detailed procedure for the tests, the methods applied, the observations made, the grouping of the varieties on which the tests are carried out, and the table of the characteristics examined. In the context of this last point, the plants of the candidate variety are cultivated beside the reference varieties which the CPVO and the designated examination centre consider to be the closest, according to the technical description, which forms part of the application for protection.

2. Regulation (EC) No 1239/95 ( 10 )

16.

Article 22, under the heading ‘Decision on test guidelines’, reads as follows:

‘1.   Upon proposal of the President of the Office, the Administrative Council shall take a decision as to the test guidelines. The date and the species concerned of the decision shall be published in the Official Gazette [of the CPVO] referred to in Article 87 of this regulation.

2.   In the absence of a decision of the Administrative Council as to test guidelines, the President of the Office may take a provisional decision thereon. The provisional decision shall lapse on the date of the decision of the Administrative Council. Where the provisional decision of the President of the Office deviates from the decision of the Administrative Council, a technical examination started prior to the decision of the Administrative Council shall not be affected; the Administrative Council may decide otherwise, if circumstances so dictate.’ ( 11 )

17.

Article 23, under the title ‘Powers vested in the President of the Office’, states:

‘1.   Where the Administrative Council takes a decision on test guidelines, it shall include a power whereby the President of the Office may insert additional characteristics and their expressions in respect of a variety.

2.   Where the President of the Offices makes use of the powers referred to in paragraph 1, Article 22(2) shall apply mutatis mutandis.’

3. Protocol TP/14/1 ( 12 )

18.

CPVO Protocol TP/14/1 lays down the guidelines for the technical examination of apple varieties of the species Malus Mill. Before that protocol was adopted, there were no such general principles or general instructions, for the purposes of Regulation No 2100/94, for those varieties. In accordance with usual practice with regard to technical examinations, the CPVO assessed the DUS criteria for the varieties in question on the basis of the general and technical guidelines adopted by the International Union for the Protection of New Varieties of Plants (‘UPOV’), an intergovernmental organisation set up under the International Convention for the Protection of New Varieties of Plants. ( 13 )

19.

According to Section III 3 of CPVO Protocol TP/14/1, the characteristics to be used in DUS tests and in preparations of description are to be those referred to in Annex I.

20.

On the other hand, under Section III 5 of CPVO Protocol TP/14/1, the minimum duration of tests (independent growing cycles) is normally to include at least two satisfactory crops of fruit. Section IV adds that candidate varieties may meet the DUS standards after two fruiting periods, but that in some cases three fruiting periods may be required.

21.

Section III 6 of CPVO Protocol TP/14/1 provides that an applicant may claim, either in the Technical Questionnaire or during the test, that a candidate variety has a characteristic that would be helpful in establishing distinctiveness. If such a claim is made and is supported by reliable technical data, the test may be undertaken, providing that a technically acceptable test procedure can be devised. Furthermore, special tests will be undertaken, with the agreement of the President of the CPVO, when distinctness is unlikely to be shown using only the characters listed in the protocol.

B – International law deriving from UPOV

1. UPOV Protocol TG/1/3

22.

The UPOV (the International Union for the Protection of New Varieties of Plants), of which the European Union became a member on 29 July 2005, has adopted several protocols and guidelines relevant for the purposes of the present proceedings. Specifically, UPOV document TG/1/3, entitled ‘General introduction to the examination of distinctness, uniformity and stability and the harmonised descriptions of new varieties of plants’, of 19 April 2002 (‘UPOV Protocol TG/1/3’), provides the basis for all the UPOV guidelines for the examination of DUS.

23.

The purpose of UPOV Protocol TG/1/3 is reflected in Section 1.2:

‘The purpose of this document … and the associated series of documents specifying Test Guidelines’ Procedures … is to set out the principles which are used in the examination of DUS.

… The identification of those principles ensures that examination of new plant varieties is conducted in a harmonised way throughout the members of the Union.’

24.

Section 1.3 of UPOV Protocol TG/1/3 states:

‘The only binding obligations on members of the Union are those contained in the text of the UPOV Convention itself, and this document must not be interpreted in a way that is inconsistent with the relevant Act for the Union Member concerned.’

25.

The second sentence of Section 4.2.3 of UPOV Protocol TG/1/3 provides as follows:

‘The characteristics included in the individual Test Guidelines are not necessarily exhaustive and may be expanded with additional characteristics if that proves to be useful and the characteristics meet the conditions set out above.’

26.

As regards the relevant characteristics, Section 6.2 of the Protocol states:

‘Relevant characteristics of a variety include at least all characteristics used for the examination of DUS or included in the variety description established at the date of grant of protection of that variety. Therefore, any obvious characteristic may be considered relevant, irrespective of whether it appears in the Test Guidelines or not.’

27.

In relation to the examination of stability, Section 7.2 provides:

‘The relevant or essential characteristics include at least all characteristics used for the examination of DUS or included in the variety description established at the date of grant of protection of that variety. Therefore, all obvious characteristics may be considered, irrespective of whether they appear in the Test Guidelines or not.’

28.

Insofar as concerns apples, the TG/14/8 Guidelines for the conduct of tests for distinctiveness, uniformity and stability, of 20 October 1995 established by UPOV for the Malus Mill variety (‘UPOV Protocol TG/14/8’), apply.

29.

UPOV Protocol TG/14/9 of 6 April 2005 contains new guidelines for the examination of DUS for all the Malus domestica Borkh apple varieties, except those used only as rootstocks or as ornamental varieties. ( 14 ) The table of characteristics contained in UPOV Protocol TG/14/9 includes Characteristic No 40, entitled ‘Fruit: width of stripes’, which did not appear in the table of characteristics annexed to UPOV Protocol TG/14/8.

II – Background to the dispute

30.

The complex facts giving rise to the proceedings are described in paragraphs 22 to 43 of the judgment under appeal. They can be summarised as set out below.

A – Administrative stage

31.

The application for a plant variety right for the apple variety of the species Malus Mill with the denomination Gala Schnitzer (‘the candidate variety’) was filed with the CPVO on 18 January 1999. ( 15 ) The following month, the Office requested the Examination Office of the Bundessortenamt (German Federal Plant Variety Office; ‘the BSA’) to conduct the technical examination of the candidate variety, pursuant to Article 55(1) of Regulation No 2100/94. For the comparison the Baigent (‘the reference variety’) was used, owing to its similarity to the candidate variety.

32.

The material submitted by Schniga being virus-infected, the examination was suspended in 2001 until spring 2002, at which time, having been requested to do so, that company submitted new, healthy material. The examination was conducted during 2003 and 2004.

33.

By letter of 18 January 2005, the BSA informed the CPVO that it had sent the interim report on the DUS examination of the candidate variety, which it considered distinct from the reference variety on the basis of a characteristic that was not listed in CPVO Protocol TP/14/1, ‘Flower: colour of base of filament (after anther dehiscence)’. It also stated that evidence had been given that the characteristic concerned was sufficiently consistent and repeatable, and exhibited sufficient variation between varieties, thus making it possible to establish distinctness.

34.

On 7 February 2005, the CPVO sent Schniga a further interim report with the observation ‘no remarks’. The BSA sent the final technical examination report to Schniga and to the CPVO on 19 December 2005. It is clear from points 16 and 17 of that report, concerning the comparison of the candidate variety with the reference variety, that the former has broad stripes (note 7), and the latter has narrow to medium stripes (note 4). It is also stated in the report that that assessment was based on the evaluation of the additional characteristic ‘Fruit: width of stripes’, corresponding to characteristic No 40 of UPOV Protocol TG/14/9 (‘the additional characteristic at issue’). The CPVO noted in that regard that the additional characteristic at issue did not appear either in CPVO Protocol TP/14/1 or in UPOV Protocol TG/14/8.

35.

By letter of 24 January 2006, the Office informed the BSA that incorrect guidelines had been cited in the final examination report and that it was not CPVO Protocol TP/14/1 that ought to have been used as the basis for the examination report, but UPOV Protocol TG/14/8, which was in force at the date on which the decision was taken to test the candidate variety (January 1999).

36.

On 9 February 2006, the BSA sent the CPVO an amended version of the final technical examination report, point 17 of which read:

‘The variety was tested according to the UPOV [Protocol] TG/14/8 from 1995. The variety description was produced on the basis of the table of characteristics of the [CPVO Protocol] TP/14/1 from 27 March 2003 which came into force during the testing period. This allows the [candidate] variety to become part of the reference collection for varieties with later priority. The variety is distinct, uniform and stable according to both [protocols].’

37.

On 5 May 2006, Elaris and Brookfield, the former the holder of the plant variety right for the Baigent variety and the latter the licensee of that right, lodged with the CPVO, pursuant to Article 59 of Regulation No 2100/94, objections to the grant of the plant variety right sought for the variety Gala Schnitzer, relying upon the earlier right in respect of the Baigent variety

38.

The pleas in law put forward by Brookfield and Elaris related, on the one hand, to the right accorded to Schniga to submit virus-free plant material, when the CPVO ought to have refused its initial application and, on the other, to the fact that the candidate variety was not sufficiently distinct from the reference variety.

39.

By decision of 14 December 2006, the President of the CPVO authorised the use of the additional characteristic at issue in order to distinguish between the candidate variety and the reference variety. ( 16 ) The decision was expressly based on Article 23 of Regulation No 1239/95.

40.

In its decision of 26 February 2007, the CPVO committee responsible for deciding on objections to the grant of Community plant variety rights granted the plant variety right sought for the candidate variety and dismissed the objections. In particular, it recognised that, ‘for technical reasons’, taking the additional characteristic at issue into account was justified, even though it was not referred to in the protocols in force on the date of the application for a plant variety right.

B – Proceedings before the Board of Appeal

41.

The Board of Appeal of the CPVO upheld the appeal brought by Brookfield and Elaris against the decision of 26 February 2007, cancelling the decisions it contained and rejecting the application for a variety right. It maintained that Article 61(1)(b) of Regulation No 2100/94 did not give the Office the power to authorise Schniga to submit new material.

42.

Schniga filed an action for annulment before the General Court against the decision of the Board of Appeal of 21 November 2007. The action was upheld in the judgment of 13 December 2010, ( 17 ) which annulled that decision.

43.

The Board of Appeal therefore had to resume examination of the appeal, as regards the distinctiveness of the variety for which the right was sought, after comparing it with the reference variety.

44.

The Board of Appeal decided this (second) time that the assessment by the BSA, for the technical examination, of the additional characteristic at issue constituted an infringement of Section III 3 of CPVO Protocol TP/14/1 for the following reasons: (a) neither of the protocols in force, nor their corresponding guidelines, that is to say, UPOV Protocol TG/14/8 (of 1995) and CPVO Protocol TP/14/1 (of 1993), mentioned that characteristic; (b) neither in the technical questionnaire nor during the test period had Schniga submitted a request for that characteristic to be taken into account; (c) the BSA had not mentioned the additional characteristic at issue in its letter to the CPVO, which mentioned it for the first time in the final examination report and in the decision of the President of the Office of 14 December 2006; and (d) that decision of 14 December 2006 permitting the use retrospectively of that characteristic was fundamentally flawed because it had been adopted 12 months after the final report, and was not justified in the light of Article 22(2) of Regulation No 1239/95.

45.

Furthermore, the Board of Appeal made reference to its decision in Case A 010/2008 (JEWEL), ( 18 ) in which it had declared that the use of an additional characteristic requires the prior approval of the President of the CPVO, in the interests of legal certainty, objectivity in the handling of applications and the predictability of the behaviour of the parties concerned.

46.

Likewise, it considered that the fact that the technical examination of the additional characteristic at issue had been carried out by the BSA over one year, whereas, in order to establish the uniformity and stability of apple varieties, such examinations must be conducted, in accordance with the protocols, over at least two consecutive fruiting seasons, constituted a clear infringement of UPOV Protocols TG/1/3 and TG/14/8.

47.

The Board of Appeal concluded that, in law, the candidate variety could not be held to be distinct from the reference variety.

C – The procedure before the General Court and the judgment under appeal

48.

By application lodged at the Registry of the General Court on 10 February 2014, Schniga challenged the two decisions of the Board of Appeal.

49.

As regards the substance, Schniga put forward a single plea for annulment divided into two parts: in the first, it alleged infringement of Article 7 and Article 56(2) of Regulation No 2100/94 with regard to the refusal to take into account the additional characteristic at issue observed during the technical examination, as opposed to the lists of characteristics included in the UPOV technical protocols, which are not exhaustive, as is apparent from the guidelines for UPOV Protocol TG/1/3. Furthermore, according to Schniga, the decisions had infringed Article 22(2) and Article 23(1) and (2) of the implementing regulation, for they were based on an incorrect assessment of the discretionary power of the President of the CPVO in that regard and infringed both the right to a hearing with all the safeguards and Schniga’s substantive right to obtain the plant variety right sought, as guaranteed by Articles 7 to 10 of Regulation No 2100/94.

50.

In the second part of the plea for annulment, Schniga claimed that it had been wrongly held, in the decisions, that the technical examination on the candidate variety was flawed because it was conducted over one year instead of two.

51.

The General Court dismissed Schniga’s action. With regard to the first ground of annulment, it maintained that:

The application by the Board of Appeal of the procedural rules of CPVO Protocol TP/14/1 was consistent with the case-law of the Court of Justice concerning the temporal effects of procedural rules, which in general are applicable from the date on which they come into force. ( 19 )

CPVO Protocol TP/14/1 takes precedence over the UPOV Protocols, in particular TG/1/3, Section 1.3 of which makes it clear that the series of recommendations contained in that Protocol are not binding. ( 20 )

In spite of the wide measure of discretion afforded to the CPVO, ( 21 ) this Administration has placed a limit on itself, through the adoption of legal rules such as the protocols and guidelines, so that neither the Office nor its President could take into account an additional characteristic which is not included in CPVO Protocol TP/14/1. ( 22 )

52.

Having dismissed the first part of the action, the General Court considered that the second part was ineffective. However, it made a series of observations for the sake of completeness, ( 23 ) according to which the fact that the technical examination (relating to the additional characteristic at issue) was conducted over only one year constituted an infringement of Section III 5 and Section IV of CPVO Protocol TP/14/1, and of Section 5.3.3.1.1 of UPOV Protocol TG/1/3.

53.

The General Court therefore dismissed the action and ordered Schniga to pay the costs.

III – Proceedings before the Court of Justice and the forms of order sought by the parties

54.

Schniga’s appeal was received at the Registry of the Court of Justice on 23 November 2015 and the statements of defence of the CPVO and of Brookfield and Elaris on 2 and 3 February 2016 respectively.

55.

Schniga claims that the Court of Justice should set aside the judgment under appeal and order the Office to pay the costs.

56.

The CPVO, which disagrees with the decisions of its Board of Appeal endorsed by the General Court, also claims that the Court of Justice should uphold the appeal and order each party to pay its own costs.

57.

Brookfield and Elaris claim that the Court of Justice should dismiss the appeal and order Schniga to pay the costs.

58.

Schniga, the CPVO and Brookfield appeared at the hearing held on 24 November 2016.

IV – Examination of the appeal

A – Arguments of the parties

59.

Schniga bases its sole ground of appeal on infringement of Articles 7 and 56 of Regulation No 2100/94, read in conjunction with Articles 22 and 23 of Regulation No 1239/95. Its argument is based on three criticisms of the General Court: (a) that the latter failed to have regard to the true function of the guidelines and of the protocols; (b) that it had erred in the classification of the legal nature of those guidelines and protocols and (c) that it had applied them incorrectly.

60.

As regards the guidelines and protocols, Schniga claims that they are drawn up in order to explain the manner in which the examination is to be conducted and the requirements for the plant material subject to that examination. Defining the principles makes it possible to harmonise the examination of new plant varieties in the member States of the UPOV. That technical examination must show that the relevant characteristics do not derive from environmental or cultivation conditions, but from the genotype of the variety.

61.

At all events, according to Schniga, Section 6.2 of UPOV Protocol TG/1/3 ( 24 ) allows all obvious characteristics to be assessed, for it does not require them to appear in the test guidelines. It therefore concludes that neither Regulation No 2100/94 nor the UPOV Convention of 1991 nor the governing principles nor the protocols require the CPVO to exclude from the test characteristics other than those included in the list of the respective protocol or in the applicable guidelines.

62.

With regard to the legal nature of the guidelines and protocols, Schniga finds fault with the judgment under appeal for equating them (in paragraph 74 and 75) to binding legal rules. In Schniga’s view, they do not merit that classification, but that of guidelines ( 25 ) that show the Administration how to proceed, by giving it technical pointers concerning the harmonised DUS examination.

63.

For Schniga, those guidelines cannot preclude the grant of a right, from the moment that the candidate variety meets the requirements of Article 6 of Regulation No 2100/94. It observes, in that regard, that the characteristics found in the test guidelines are not exhaustive and that others may be added, if it is useful to do so and if they meet the required conditions. Furthermore, it stresses the necessary flexibility enjoyed by the CPVO, under the UPOV TG/14/8 guidelines ( 26 ) and under CPVO Protocol TP/14/1, ( 27 ) in order to determine whether certain characteristics may be relevant and when they are relevant, and also to incorporate them at the end of the technical examination.

64.

As regards the errors in the application of the guidelines and protocols, Schniga criticises the General Court ( 28 ) for considering that CPVO Protocol TP/14/1 applied to an application lodged prior to its entry into force. Article 22(2) of the implementing regulation provides that the adoption of the guidelines by the Administrative Council and the subsequent cessation of the effects of the provisional decision of the President of the CPVO do not affect, in the event of discrepancies between them, the technical examinations conducted before the intervention of that Council. Therefore, the UPOV TG/14/8 guidelines continued in force for technical examinations already carried out on the candidate variety.

65.

Furthermore, Schniga adds, the General Court ignored the second sentence of Section 7.2 of the UPOV TG/1/3 guidelines, pursuant to which obvious characteristics must be taken into account, whether or not they are included in the guidelines for the technical examination. This supports its view concerning the power of the President of the CPVO to take into consideration any characteristics that make it possible for the distinctness of the candidate variety to be described.

66.

Finally, Schniga submits, contrary to the opinion of the Board of Appeal endorsed by the General Court, ( 29 ) that there are no rules requiring the CPVO, as the body responsible for the technical examination, to reveal at any specific moment the characteristics whose inclusion in the description of the variety it is to propose. Nor, furthermore, do the UPOV TP/14/1 guidelines prescribe any period for inserting the additional characteristics and their expressions in respect of a variety. It is not necessary to require, therefore, as the General Court does, ( 30 ) the prior approval of the President of the CPVO, which is also more consistent with the broad discretion conferred on this Office.

67.

The CPVO supports Schniga’s argument and emphasises that the protocols and guidelines are rules of practice, not rules of law. It would be possible to speak of its ‘self-binding’ effect in relation to ‘the test conditions such as plant material requested and the concept of the technical examination as such’ ( 31 ) only in order to guarantee equal treatment, that is, that all candidate varieties be tested under the same cultivation conditions.

68.

The CPVO underlines the fact that the publication notices of the protocols and, in particular, that relating to CPVO Protocol TP/14/1 contain a message stating that technical examinations initiated before the decision adopting the protocol will not be affected, unless otherwise announced.

69.

For the CPVO, the relevance of the inclusion of the additional characteristics may be evaluated only at the end of the technical examination, which would reinforce the argument that the President of this Office must have the power to take into account an additional characteristic of a candidate variety, at any moment in the procedure before the grant of protection.

70.

Brookfield and Elaris deny that the judgment under appeal is vitiated by errors of law. With regard to the binding nature of CPVO Protocol TP/14/1 and the hierarchy of norms between the CPVO Protocols and the UPOV Protocols, they consider that, in accordance with Article 56(2) of Regulation No 2100/94, the test guidelines are legal rules failure to observe which constitutes infringement of that provision. Given that, under Section 1.3 of UPOV TG/1/3, the protocols and guidelines drawn up by that international body have the status of recommendations and therefore lack binding legal force, it must be concluded that the CPVO protocols take precedence over the UPOV protocols.

71.

With regard to the application ratione temporis of CPVO Protocol TP/14/1, Brookfield and Elaris claim that the moment that fixes the procedural framework applicable to an application for a community plant variety right is not the date on which it is submitted but that of the actual beginning of the technical examination. It is apparent from the file that the BSA carried out the relevant DUS tests in the years 2004 and 2005, that is to say, when CPVO Protocol TP/14/1 was already in force.

72.

Finally, for Brookfield and Elaris CPVO Protocol TP/14/1 sets out unambiguously how the additional characteristics are to be taken into account. According to Section III 3 thereof, the DUS tests may refer only to the distinctive characteristics mentioned in Annex I, and the President has to authorise observation of an additional characteristic before the technical examination. Furthermore, it may be inferred from reading Section III 6 of that protocol that the observation of a special characteristic presupposes the prior formal request by the applicant for a special test to be carried out, that is to say, any test on any additional characteristic, and also the approval of the President.

B – Analysis of the sole ground of appeal

1. The first part of the ground of appeal, relating to misapplication of CPVO Protocol TP/14/1

73.

Although the criticism of Schniga and the CPVO concerns the three elements discussed in the judgment under appeal (the applicable protocol, its binding nature and its relationship to the UPOV guidelines), strictly speaking, it would be enough to uphold their submissions regarding the application ratione temporis of CPVO Protocol TP/14/1 to conclude that the error of law which they both attribute to the General Court did exist. However, before examining its temporal applicability, it is necessary to analyse the binding legal force of that protocol.

74.

The General Court classified the CPVO Protocols as legal rules on the basis of, principally, (a) the renvoi which Article 56(2) of Regulation No 2100/94 makes to them as governing the technical examinations; (b) their publication in the Official Gazette of the CPVO, and (c) the self-limitation imposed by the Office in respect of its broad discretion. Schniga, on the other hand, considers them to be mere technical instructions concerning the manner of conducting examinations.

75.

In order to settle the dispute regarding the legislative nature of technical rules forming part of EU law (in this case, by means of the renvoi made by Regulation No 2100/94), account must be taken of the following matters: (a) the CPVO is an agency of the Union with the power to issue its own instructions, ( 32 ) in accordance with which the technical examinations must be conducted; (b) the rules of conduct which contain the guidelines must be published in the Official Gazette of the CPVO, ( 33 ) in order to provide greater legal certainty; and (c) the wording of the renvoi made by Article 56(2) of Regulation No 2100/94 confirms the necessity of adapting the examinations to the instructions issued by the Administrative Council of the CPVO.

76.

In my view, those three elements are arguments in favour of recognising the legal nature (and, by the same token, the binding nature, at least for the Administration itself) of the guidelines, protocols or rules of conduct adopted by the Administrative Council of the CPVO to govern the conduct of the technical examinations. The General Court did not therefore err in law by taking that approach.

77.

I disagree, however, with the General Court as regards the consequences of the limit to the discretionary power, which according to the judgment, the CPVO imposed on itself when adopting rules of conduct. ( 34 ) I do not believe that those guidelines — precisely because they are legal in nature, which requires them to observe the principle of the hierarchy of norms — may validly curtail the power of the President of the CPVO to include an additional characteristic. Given that that power is governed by higher-ranking provisions of law (to be specific, by Articles 22 and 23 of the implementing regulation), the instructions must abide by those provisions.

78.

The judgment under appeal is based on the case-law of the Court of Justice relating to the self-limiting force of rules of conduct concerning competition law and State aid. ( 35 ) However, those which the Commission publishes for the application of Articles 101 TFEU, 102 TFEU and 107 TFEU (in which, in effect, it explains how it is going to exercise its discretion in order to apply those articles directly in specific cases) are not comparable to the CPVO rules of conduct which set standards for the approved national bodies for harmonised technical examinations. In the latter case, the CPVO does not describe how it is going to exercise its discretion in the exercise of its functions, accorded to it by the Court of Justice in view of the scientific and technical complexity of the conditions governing the examination of applications for plant protection rights, ( 36 ) nor does it indicate the way in which it will exercise its discretion when granting or refusing plant variety rights.

79.

The legal nature of the guidelines, in spite of their unquestionably technical character, therefore fits within a system governed by general legal principles, such as that of the hierarchy of norms, which precludes any conflict with higher-ranking legal rules like Articles 22 and 23 of the implementing regulation. Consequently, those guidelines may not reduce the powers of the President of the CPVO or prevent him, specifically, from assessing an additional characteristic in the terms in which he has done so in this case.

80.

As regards the applicability ratione temporis of CPVO Protocol TP/14/1, I believe that the criticism levelled by Schniga and the CPVO against the judgment under appeal is accurate.

81.

It has been rightly said that the principles relating to the temporal applicability of new legislation form part of the general principles of EU law and can ultimately be traced back to the legal traditions common to the Member States. ( 37 )

82.

The Court of Justice has declared, in this context, that a new rule of law applies from the entry into force of the act introducing it, and that, if it does not affect legal situations that have arisen and become definitive under the old law, it does apply to the future effects, and to new legal situations. It recognises as an exception to this rule, without prejudice to the principle of the non-retroactivity of legal acts, cases in which the new rule is accompanied by special provisions specifically laying down its conditions of temporal application. ( 38 )

83.

As regards procedural rules, the case-law considers that they are generally taken to apply from the date on which they enter into force. This is not the case for substantive rules, which are usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that they must be given such an effect. ( 39 )

84.

In the present case, the General Court, after recalling that case-law, confirmed the immediate applicability of the procedural provisions laid down in CPVO Protocol TP/14/1, on which the Board of Appeal had based its decision. ( 40 )

85.

I disagree with that view and agree with the interpretation proposed by Schniga and the CPVO of Article 22(2) of the implementing regulation. That provision establishes the principle of non-retroactivity of decisions adopted by the Administrative Council, when they deviate from the provisional decision given by the President of the CPVO, for ‘a technical examination started prior to the decision of the Administrative Council’. ( 41 )

86.

Moreover, the Office has claimed on appeal that the notices of publication of the protocols (also CPVO Protocol TP/14/1) include the express statement that technical examinations started before adoption (of the protocol) will not be affected, unless otherwise decided. ( 42 )

87.

Although, strictly speaking, CPVO Protocol TV/14/1 contains no express limits on its temporal application (no specification appears in it to that effect), this being a provision which may be applicable to third parties, it is sufficient if, when it is published, it is made clear that it does not apply to procedures under way. That information is enough for one of the exceptions, upheld by the case-law of the Court of Justice, to the principle that procedural rules are immediately applicable, to come into play.

88.

Therefore, both elements (that is, Article 22(2) of the implementing regulation and the publication of the guidelines by the CPVO) emphasise that, in accordance with the legislature’s intention and the conduct of the Office itself, the new rules adopted by the CPVO for the technical examinations do not extend to those that are already under way. ( 43 )

89.

It is apparent from the foregoing that CPVO Protocol TP/14/1 was not applicable in this case, which means that the corresponding allegation in the first part of the ground of appeal must be upheld. The General Court erred in law by confirming the decision of the Board of Appeal which applied that protocol.

90.

It will not be necessary, in the light of what I have just stated, to examine the content of the third argument in the first part of the ground of appeal, concerning the alleged precedence of the CPVO Protocols over those drawn up by the UPOV. ( 44 ) Once it has been established that CPVO Protocol TP/14/1 is not applicable to this case, for temporal reasons, the dispute on this point loses relevance.

2. The second part of the sole ground of appeal: the interpretation of Article 23 of Regulation No 2100/94

91.

The second part of the sole ground of appeal too must be upheld and I think that this assessment will help to define, with greater accuracy, the powers of the President of the CPVO. What is more, it might even make the analysis of the previous ground unnecessary, because it would confirm the validity of the decision of the President of the CPVO of 14 December 2006, even under the scheme of CPVO Protocol TP/14/1. I should point out that that decision, by approving the use of the additional characteristic at issue to distinguish between the candidate variety and the reference variety (adopting as legal basis specifically Article 23 of Regulation No 1239/95), paved the way for granting the candidate Community protection.

92.

The judgment under appeal endorsed the decisions of the Board of Appeal according to which the assessment by the President of the Office of an additional characteristic constituted an infringement of Section III 3 of CPVO Protocol TP/14/1. Furthermore, the General Court stressed that, even if it were accepted that additional characteristics might be inserted, it would be necessary, under Article 23 of the implementing regulation, to have the prior approval of the President of the CPVO, in order to ensure legal certainty, objectivity in the handling of applications and the predictability of the behaviour of all the players concerned. ( 45 )

93.

The criticisms of Schniga and the Office concerning this part of the judgment under appeal ( 46 ) might succeed if the interpretation of the General Court were contrary to, or incompatible with, the correct understanding of the powers of the President, in accordance with Article 23, read in conjunction with Article 22, of the implementing regulation. It is therefore necessary to examine both those powers and the manner in which they are to be exercised.

94.

The legal regime applicable to the President of the CPVO is governed, principally, by Article 42 of Regulation No 2100/94. As well as the traditional functions of any managing organ of an administrative body (relating to its activity, staff and budget), ( 47 ) may be noted his duty to take ‘all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Office’, ( 48 ) and to ‘place before the Administrative Council draft amendments to this Regulation, to the provisions referred to in Articles 113 and 114 ( 49 ) or to any other rules relating to Community plant variety rights. ( 50 )

95.

Article 22(2) of the implementing regulation authorises the President to adopt provisional decisions ( 51 ) on test guidelines, if this has not already been done by the Administrative Council, which is the appropriate body, on a proposal of the President. ( 52 ) Article 23 of that regulation obliges the Administrative Council to authorise the President to insert additional characteristics ‘and their expressions in respect of a variety’.

96.

Whether the President of the Office may introduce additional characteristics must be assessed in the light of the case-law of the Court of Justice, which has accorded the CPVO broad discretion in performing its duties, owing to the scientific and technical complexity of the conditions governing the examination of applications that characterise the CPVO’s task. ( 53 )

97.

Furthermore, as the representative of the Office pointed out at the hearing, the procedure for granting Community plant variety rights is distinguished from that followed for other industrial property rights precisely because it is based on the study of a patentable object which is living material, that is to say, which evolves during a relatively long period of time, during which it suffers or may suffer, changes of significance for the grant of that right. All the more reason to establish a flexible margin of technical assessment of the properties or characteristics of the plant products subject to analysis.

98.

Article 56(2) of Regulation No 2100/94 makes the technical examinations (carried out by the CPVO itself or by other approved bodies) subject to compliance with the test guidelines issued by the Administrative Council and any instructions given by the Office. In my view, the President, who has the power to issue instructions under Article 42 of that regulation, may do so in the context of technical examinations too, which, together with the aforementioned broad discretion, tends towards recognition of the power to adopt additional characteristics.

99.

However, even if the ‘internal instructions’ of the President might not have such scope, his power to ‘insert additional characteristics and their expressions in respect of a variety’ would be unaffected, under Article 23 of the implementing regulation. That power must be respected in any event, to the extent that the Administrative Council, when it adopts a decision on guidelines, has no alternative (‘it shall include a power’) but to recognise it.

100.

The President is not deprived of his power to adopt additional criteria if, in a particular case, the Administrative Council has forgotten to authorise him to do so or in similar circumstances. This is clearly evidenced by the reference made by Article 23(2) to Article 22(2) of the implementing regulation, under which the President must be able to adopt at least provisional decisions on the additional characteristics.

101.

That interpretation of the President’s powers is, on the one hand, in accordance with the broad discretion which he is to enjoy when performing his duties and, on the other, that most consistent with the spirit of the principles affirmed in UPOV Protocol TG/1/3, which are also the basis for the action of the European Union, as a signatory of that international organisation. I would even venture to suggest that Article 23 of the implementing regulation is the expression, at European level, of Section 4.2.3 of that Protocol, ( 54 ) which contains the flexibility necessary for the characteristics of the guidelines not to be considered exhaustive and for additional characteristics to be accepted, including those identified during the technical examination.

102.

In short, I conclude from the foregoing that the President has the power to adopt additional criteria, deriving directly from Regulations No 2100/94 and No 1239/95, irrespective of whether or not CPVO Protocol TP/14/1 was in force. The guidelines could not reduce a power legally established and developed in the abovementioned regulations, which are indisputably of a higher rank than the protocols and guidelines.

103.

Finally, as regards the moment at which the President must take the decision relating to the inclusion of the additional characteristics, Schniga and the CPVO rightly note that there is no rule that specifies it. Consequently, the criticisms of the judgment under appeal in that regard are unfounded. ( 55 ) Admittedly, the delay in adopting that decision in this case (almost 12 months) may not have been the best administrative practice, but that does not invalidate it, failing any temporal indication in the applicable rules.

104.

The second part of the ground of appeal is therefore unfounded too.

V – Effects of setting aside the judgment under appeal

105.

If the appeal is allowed, the judgment under appeal will subsequently be set aside, in so far as it confirmed the decisions of the Board of Appeal. Logically, those decisions should also be annulled.

106.

Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the Court quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits. However, I do not believe that this case is in that position, in particular, because the judgment under appeal only set out considerations ‘for the sake of completeness’, not of a decision-making nature, on the second part of the ground for annulment put forward by Schniga, which the General Court itself described as ineffective. Since, in those circumstances, the appellant could not appeal against those considerations, ( 56 ) the case should be heard again before the adjudicating body from which the annulled decisions emanated. I accept that, owing to the excessive duration of this dispute (to which I have referred at the beginning of my Opinion, the solution is not satisfactory, but I cannot see how to avoid it.

107.

Lastly, the setting aside of the judgment under appeal means that the Court of Justice must also decide on the costs of the proceedings at first instance. In accordance with Article 137(1), in conjunction with Article 184(2), of the Rules of Procedure of the Court of Justice, the CPVO should be ordered to pay the costs at first instance and on appeal, since the decisions of its Board of Appeal should be annulled and the appellant has applied for costs. However, since the Office intervened in support of Schniga, also at first instance, it cannot be said that it has been unsuccessful. Therefore, each party must bear its own costs.

VI – Conclusion

108.

In the light of the foregoing considerations, I propose that the Court should:

(1)

set aside the judgment of 10 September 2015 of the General Court in Cases T‑91/14 and T‑92/14, Schniga v CPVO — Brookfield New Zealand and Elaris (Gala Schnitzer);

(2)

annul the decisions of the Board of Appeal of the Community Plant Variety Office of 20 September 2013, in Cases A 003/2007 and A 004/2007;

(3)

order each party to pay its own costs at first instance and on appeal.


( 1 ) Original language: Spanish.

( 2 ) Obtaining a new plant variety may lead, in certain circumstances and if certain conditions are met, to the grant of an intellectual property right and, accordingly, to a monopoly for the exploitation of the seed of that plant, fruit or flower.

( 3 ) Decisions EU 18759, OBJ 06-021 and OBJ 06-022, of 26 February 2007.

( 4 ) Judgment of 13 December 2010, Schniga v CPVO — Elaris and Brookfield New Zealand (Gala Schnitzer), T‑135/08, EU:T:2010:397.

( 5 ) Judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑534/10 P, EU:C:2012:813.

( 6 ) Decisions of 20 September 2013, Cases A 003/2007 and A 004/2007.

( 7 ) Cases T‑91/14 and T‑92/14, not published, EU:T:2015:624.

( 8 ) Council Regulation of 27 July 1994 on community plant variety rights (OJ 1994 L 227, p. 1), as amended by Council Regulation (EC) No 2506/95 of 25 October 1995 (OJ 1995 L 258, p. 3) (‘Regulation No 2100/94’).

( 9 ) Text of footnote not relevant in English.

( 10 ) Commission Regulation of 31 May 1995 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 1995 L 121, p. 37). Hereafter, I shall use the designations ‘implementing regulation’ and ‘enforcing regulation’ indiscriminately. This regulation was repealed by Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Variety Office (OJ 2009 L 251, p. 3), which is not applicable ratione temporis to the present case.

( 11 ) Regulation No 874/20009 (see previous footnote) reproduced Article 22 in full, but its recent amendment, by Commission Implementing Regulation (EU) No 2016/1448 of 1 September 2016 amending Regulation No 874/2009 (OJ 2016 L 236, p. 3) has introduced, in the interest of clarity and in order to avoid overlaps, as stated in recital 22, a new paragraph 3, the wording of which is as follows:

‘3. In the absence of a decision of the Administrative Council, or a provisional decision of the President of the Office as referred to in paragraph 2, as to text guidelines established by the Office, the guidelines per genera and species of the UPOV shall apply. In the absence of such guidelines, national guidelines developed by a competent authority in charge of the technical examination of a plant variety may be used, provided that the President of the Office agrees to such use. The competent authority shall submit those guidelines to the Office, and the Office shall publish them on its website.’

( 12 ) CPVO Protocol TP/14/1 for Distinctness, Uniformity and Stability Tests of 27 March 2003 (Apple) (‘CPVO Protocol TP/14/1’). The only version available is in English.

( 13 ) Adopted in Paris on 2 December 1961.

( 14 ) Which are governed, respectively, by UPOV Protocol TG/163/3 (Apple rootstocks) and UPOV Protocol TG/192/1 (Ornamental Apple).

( 15 ) The application was registered under number 1999/0033.

( 16 ) However, that decision did not cite the additional characteristic ‘anthacyanin colouration at the basement of the filaments’, which also appeared in the final examination report.

( 17 ) Cited in footnote 4 of this Opinion. An appeal was brought against that judgment of the General Court (Case C-534/10 P); this was dismissed by the Court of Justice in its judgment of 19 December 2012, cited in footnote 5.

( 18 ) Decision of 8 October 2008.

( 19 ) By reference to the judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited. See paragraphs 73 to 76 of the judgment under appeal.

( 20 ) Paragraphs 79 and 80 of the judgment under appeal.

( 21 ) The General Court cited its judgment of 19 November 2008, Schräder v CPVO (SUMCOL 01), T‑187/06, EU:T:2008:511, paragraphs 59 to 64, confirmed by the judgment of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77.

( 22 ) Paragraphs 81 to 87 of the judgment under appeal.

( 23 ) Paragraphs 103 and 104 of the judgment under appeal.

( 24 ) See point 26 of this Opinion.

( 25 ) According to its reading of Section 4.2.3 of UPOV Protocol TG/1/3.

( 26 ) It refers to Section IV 3.

( 27 ) According to its interpretation of Section III 3.

( 28 ) The appellant states, in paragraph 57 of its appeal, that its criticisms of the mistakes in the application of the UPOV TG/14/8 guidelines and of CPVO Protocol TP/14/1 are expressed as a precaution and for the sake of completeness, because it believes that it is irrelevant which of those two documents may have been applicable.

( 29 ) Paragraph 91 of the judgment under appeal.

( 30 ) Paragraphs 92 and 93 of the judgment under appeal.

( 31 ) Paragraph 43 of its statement of defence to the appeal.

( 32 ) See Article 56(2) of Regulation No 2100/94, transcribed in point 14 of this Opinion.

( 33 ) Article 22(1) of the Implementing Regulation, transcribed in point 16 of this Opinion.

( 34 ) Paragraph 85 of the judgment on appeal.

( 35 ) It refers to the judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 to 211; and of 11 September 2008, Germany and Others v Kronofrance, C‑75/05 P and C‑80/05 P, EU:C:2008:482, paragraph 60 and the case-law cited.

( 36 ) Judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑534/10 P, EU:2012:813, paragraph 50.

( 37 ) See the complete examination of the matter offered by Advocate General Kokott in the Opinion delivered in Commission v Moravia Gas Storage, C‑596/13 P, EU: C:2014:2438, points 26 to 33.

( 38 ) Judgment of 26 March 2015, Commission v Moravia Gas Storage, C‑596/13 P, EU:C:2014:2438, paragraph 32 and the case-law cited.

( 39 ) Ibidem, paragraph 33.

( 40 ) Paragraphs 75 and 76 of the judgment under appeal.

( 41 ) It is logical for that rule to be stated only in relation to the differing aspects of conflicting decisions, since, when they coincide, there will not be any legal uncertainty, but rather the confirmation and validation of the measures applicable to the examinations, until then provisional.

( 42 ) The notice is on the CPVO website, on the tab leading to the technical protocols; it reads as follows: ‘In accordance with Article 56(2) of Council Regulation (EC) [No] 2100/94, technical examinations which are initiated by the … Office, or technical examinations for which the CPVO envisages to take over the results, must be performed in accordance with the test protocols which have been adopted by the Administrative Council. Technical examinations started prior to the date of entry into force are not affected unless otherwise announced’.

( 43 ) This interpretation is also reinforced with the new paragraph 3 of Article 22 of the Implementing Regulation (see footnote 11 of this Opinion), according to which, when there is no decision of the Administrative Council or no provisional decision of the President of the Office, the UPOV guidelines per genera and species (recital 19) apply as to test guidelines. Although that paragraph is subsequent to the facts of the case, it shows the legislature’s desire for clarity, in accordance with that recital.

( 44 ) This is stated by the General Court in paragraphs 79 and 80 of the judgment under appeal.

( 45 ) See paragraphs 87 to 93 of the judgment under appeal.

( 46 ) Contained, in particular, in points 64 to 69 of this Opinion.

( 47 ) Article 42(1)(b), (c) and (d) of that regulation.

( 48 ) Emphasis added.

( 49 ) Article 113 concerns the fees of the agency and Article 114 concerns the implementing rules, such as Regulation No 1239/95.

( 50 ) Paragraph 2(f) and (g) of that Article. Emphasis added.

( 51 ) Regulation No 2016/1448 (see footnote 11 of this Opinion) has suppressed paragraph 2 of Article 23 of the Implementing Regulation, because decisions on test guidelines should have a permanent nature. Due to their significance for their users, and in order to reflect that the decision of the President of the Office, when exercising the powers referred to in paragraph 1 of that Article, is not a provisional one, as stated in recital 20 of Regulation No 2016/1448.

( 52 ) Article 36(1)(e), in relation to Article 42(1)(g) and Article 56(2) of Regulation No 2100/94.

( 53 ) Judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑534/10 P, EU:C:2012:813), paragraph 50. On this point I share the view of Advocate General Mazák in the Opinion in Schräder v CPVO, C‑38/09 P, EU:C:2009:753, points 25 and 26 and the case-law cited.

( 54 ) See point 25 of this Opinion.

( 55 ) See paragraphs 92 and 93 of the judgment under appeal.

( 56 ) Judgment of 26 September 2013, Alliance One International v Commission, C‑679/11 P, EU:C:2013:606, paragraph 85 and the case-law cited.

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