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Document 01994R2100-20080131
Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights
Consolidated text: Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights
Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights
01994R2100 — EN — 31.01.2008 — 005.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
COUNCIL REGULATION (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ L 227 1.9.1994, p. 1) |
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11.1.2008 |
COUNCIL REGULATION (EC) No 2100/94
of 27 July 1994
on Community plant variety rights
PART ONE
GENERAL PROVISIONS
Article 1
Community plant variety rights
A system of Community plant variety rights is hereby established as the sole and exclusive form of Community industrial property rights for plant varieties.
Article 2
Uniform effect of Community plant variety rights
Community plant variety rights shall have uniform effect within the territory of the Community and may not be granted, transferred or terminated in respect of the abovementioned territory otherwise than on a uniform basis.
Article 3
National property rights for plant varieties
This Regulation shall be without prejudice to the right of the Member States to grant national property rights for plant varieties, subject to the provisions of Article 92 (1).
Article 4
Community Office
For the purpose of the implementation of this Regulation a Community Plant Variety Office, hereinafter referred to as ‘the Office’, is hereby established.
PART TWO
SUBSTANTIVE LAW
CHAPTER I
CONDITIONS GOVERNING THE GRANT OF COMMUNITY PLANT VARIETY RIGHTS
Article 5
Object of Community plant variety rights
For the purpose of this Regulation, ‘variety’ shall be taken to mean a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:
Article 6
Protectable varieties
Community plant variety rights shall be granted for varieties that are:
distinct;
uniform;
stable; and
new.
Moreover, the variety must be designated by a denomination in accordance with the provisions of Article 63.
Article 7
Distinctness
The existence of another variety shall in particular be deemed to be a matter of common knowledge if on the date of application determined pursuant to Article 51:
it was the object of a plant variety right or entered in an official register of plant varieties, in the Community or any State, or in any intergovernmental organization with relevant competence;
an application for the granting of a plant variety right in its respect or for its entering in such an official register was filed, provided the application has led to the granting or entering in the meantime.
The implementing rules pursuant to Article 114 may specify further cases as examples which shall be deemed to be a matter of common knowledge.
Article 8
Uniformity
A variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics which are included in the examination for distinctness, as well as any others used for the variety description.
Article 9
Stability
A variety shall be deemed to be stable if the expression of the characteristics which are included in the examination for distinctness as well as any others used for the variety description, remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
Article 10
Novelty
A variety shall be deemed to be new if, at the date of application determined pursuant to Article 51, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder within the meaning of Article 11, for purposes of exploitation of the variety:
earlier than one year before the abovementioned date, within the territory of the Community;
earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the Community.
Likewise, the disposal of variety constituents by one company or firm within the meaning of the second paragraph of Article 58 of the Treaty to another of such companies or firms shall not be deemed to be a disposal to others, if one of them belongs entirely to the other or if both belong entirely to a third such company or firm, provided no further disposal is made. This provision shall not apply in respect of cooperative societies.
Likewise, no account shall be taken of any disposal to others, if it either was due to, or in consequence of the fact that breeder had displayed the variety at an official or officially recognized exhibition within the meaning of the Convention on International Exhibitions, or at an exhibition in a Member State which was officially recognized as equivalent by that Member State.
CHAPTER II
PERSONS ENTITLED
Article 11
Entitlement to Community plant variety rights
Article 12
Entitlement to file an application for a Community plant variety right
An application for a Community plant variety right may be filed by any natural or legal person, or any body ranking as a legal person under the law applicable to that body.
An application may be filed jointly by two or more such persons.
CHAPTER III
EFFECTS OF COMMUNITY PLANT VARIETY RIGHTS
Article 13
Rights of the holder of a Community plant variety right and prohibited acts
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 authorization of the holder:
production or reproduction (multiplication);
conditioning for the purpose of propagation;
offering for sale;
selling or other marketing;
exporting from the Community;
importing to the Community;
stocking for any of the purposes mentioned in (a) to (f).
The holder may make his authorization subject to conditions and limitations.
The provisions of paragraphs 1 to 4 shall also apply in relation to:
varieties which are essentially derived from the variety in respect of which the Community plant variety right has been granted, where this variety is not itself an essentially derived variety;
varieties which are not distinct in accordance with the provisions of Article 7 from the protected variety; and
varieties whose production requires the repeated use of the protected variety.
For the purposes of paragraph 5 (a), a variety shall be deemed to be essentially derived from another variety, referred to hereinafter as ‘the initial variety’ when:
it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety;
it is distinct in accordance with the provisions of Article 7 from the initial variety; and
except for the differences which result from the act of derivation, it conforms essentially to the initial variety in the expression of the characteristics that results from the genotype or combination of genotypes of the initial variety.
Article 14
Derogation from Community plant variety right
The provisions of paragraph 1 shall only apply to agricultural plant species of:
Fodder plants:
and, in the case of Portugal, Lolium multiflorum lam — Italian rye-grass
Cereals:
Potatoes:
Oil and fibre plants:
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:
Article 15
Limitation of the effects of Community plant variety rights
Limitation of the effects of Community plant variety rights
acts done privately and for non-commercial purposes;
acts done for experimental purposes;
acts done for the purpose of breeding, or discovering and developing other varieties;
acts referred to in Article 13 (2) to (4), in respect of such other varieties, except where the provisions of Article 13 (5) apply, or where the other variety or the material of this variety comes under the protection of a property right which does not contain a comparable provision; and
acts whose prohibition would violate the provisions laid down in Articles 13 (8), 14 or 29.
Article 16
Exhaustion of Community plant variety rights
The Community plant variety right shall not extend to acts concerning any material of the protected variety, or of a variety covered by the provisions of Article 13 (5), which has been disposed of to others by the holder or with his consent, in any part of the Community, or any material derived from the said material, unless such acts:
involve further propagation of the variety in question, except where such propagation was intended when the material was disposed of; or
involve an export of variety constituents into a third country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported materials is for final consumption purposes.
Article 17
Use of variety denominations
Article 18
Limitation of the use of variety denominations
CHAPTER IV
DURATION AND TERMINATION OF COMMUNITY PLANT VARIETY RIGHTS
Article 19
Duration of Community plant variety rights
Article 20
Nullity of Community plant variety rights
The Office shall declare the Community plant variety right null and void if it is established:
that the conditions laid down in Articles 7 or 10 were not complied with at the time of the Community plant variety right; or
that where the grant of the Community plant variety right has been essentially based upon information and documents furnished by the applicant, the conditions laid down in Articles 8 and 9 were not complied with at the time of the grant of the right; or
that the right has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled.
Article 21
Cancellation of Community plant variety rights
The Office may cancel a Community plant variety right with effect in futurum if the holder, after being requested to do so, and within a time limit specified by the Office:
has not fulfilled an obligation pursuant to Article 64 (3); or
in the case referred to in Article 66, does not propose another suitable variety denomination; or
fails to pay such fees as may be payable to keep the Community plant variety right in force; or
either as the initial holder or as a successor in title as a result of a transfer pursuant to Article 23, no longer satisfies the conditions laid down in Articles 12 and 82.
CHAPTER V
COMMUNITY PLANT VARIETY RIGHTS AS OBJECTS OF PROPERTY
Article 22
Assimilation with national laws
Save where otherwise provided in Articles 23 to 29, a Community plant variety right as an object of property shall be regarded in all respects, and for the entire territory of the Community, as a corresponding property right in the Member State in which:
according to the entry in the Register of Community Plant Variety Rights, the holder was domiciled or had his seat or an establishment on the relevant date; or
if the conditions laid down in subparagraph (a) are not fulfilled, the first-mentioned procedural representative of the holder, as indicated in the said Register, was domiciled or had his seat or an establishment on the date of registration.
Article 23
Transfer
Article 24
Levy of execution
A Community plant variety right may be levied in execution and be the subject of provisional, including protective, measures within the meaning of Article 24 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Lugano on 16 September 1988, hereinafter referred to as the ‘Lugano Convention’.
Article 25
Bankruptcy or like proceedings
Until such time as common rules for the Member States in this field enter into force, the only Member State in which a Community plant variety right may be involved in bankruptcy or like proceedings shall be that in which such proceedings are first brought within the meaning of national law or of conventions applicable in this field.
Article 26
The application for a Community plant variety right as an object of property
Articles 22 to 25 shall apply to applications for Community plant variety rights. Concerning such applications, the references made in those Articles to the Register of Community Plant Variety Rights shall be regarded as references to the Register of Application for Community Plant Variety Rights.
Article 27
Contractual exploitation rights
Article 28
Joint holdership
Articles 22 to 27 shall apply mutatis mutandis in the event of joint holdership of a Community plant variety right in proportion to the respective share held, where such shares have been determined.
Article 29
Compulsory licensing
On application, a compulsory licence for the non-exclusive use of a protected plant variety pursuant to Article 12(2) of Directive 98/44/EC shall be granted to the holder of a patent for a biotechnological invention, subject to payment of an appropriate royalty as equitable remuneration, provided that the patent holder demonstrates that:
he/she has applied unsuccessfully to the holder of the plant variety right to obtain a contractual licence; and
the invention constitutes significant technical progress of considerable economic interest compared with the protected plant variety.
Where, in order to enable him/her to acquire or exploit his/her plant variety right, a holder has been granted a compulsory licence in accordance with Article 12(1) of Directive 98/44/EC for the non-exclusive use of a patented invention, a non-exclusive cross-licence on reasonable terms to exploit the variety shall be granted, on application, to the holder of the patent for that invention,
The territorial scope of the licence or cross-licence referred to in this paragraph shall be limited to the part or parts of the Community covered by the patent.
PART THREE
THE COMMUNITY PLANT VARIETY OFFICE
CHAPTER I
GENERAL PROVISIONS
Article 30
Legal status, sub-offices
Article 31
Staff
Article 32
Privileges and immunities
The Protocol on the Privileges and Immunities of the European Communities shall apply to the Office.
Article 33
Liability
Article 33a
Access to documents
Article 34
Languages
Article 35
Decisions of the Office
CHAPTER II
THE ADMINISTRATIVE COUNCIL
Article 36
Creation and powers
An Administrative Council is hereby set up, attached to the Office. In addition to the powers assigned to the Administrative Council by other provisions of this Regulation, or by the provisions referred to in Articles 113 and 114, it shall have the powers in relation to the Office defined below:
It shall advise on matters for which the Office is responsible, or issue general guidelines in this respect.
It shall examine the management report of the President, and shall moreover monitor the Office's activities, on the basis of that examination and any other information obtained.
It shall, on a proposal from the Office, either determine the number of Committees referred to in Article 35, the work allocation and the duration of their respective function, or issue general guidelines in this respect.
It may establish rules on working methods of the Office.
It may issue test guidelines pursuant to Article 56 (2).
Moreover the Administrative Council:
Article 37
Composition
Article 38
Chairmanship
Article 39
Meetings
Article 40
Place of meetings
The Administrative Council shall meet at the seat of the Commission, or at the location of the Office or of an Examination Office. The details shall be determined in the rules of procedure.
Article 41
Voting
CHAPTER III
MANAGEMENT OF THE OFFICE
Article 42
Functions and powers of the President
To this end, the President shall have, in particular, the following functions and powers:
The President shall take all necessary steps, including the adoption of internal administrative instructions and the publications of notices, to ensure the functioning of the Office in accordance with the provisions of this Regulation, with those referred to in Articles 113 and 114, or with the rules established, or guidelines issued, by the Administrative Council pursuant to Article 36 (1).
He shall submit a management report to the Commission and Administrative Council each year.
He shall exercise in respect of the staff the powers laid down in Article 31 (2).
He shall submit proposals as referred to in Article 36 (1) (c) and 47 (2).
He shall draw up estimates of the revenue and expenditure of the Office pursuant to Article 109 (1), and shall implement the budget pursuant to Article 110.
He shall supply information as required by the Administrative Council pursuant to Article 36 (2), first indent.
He may place before the Administrative Council draft amendments to this Regulation, to the provisions referred to in Articles 113 and 114 or to any other rules relating to Community plant variety rights.
He may delegate his powers to other members of the Office's staff, and subject to the provisions referred to in Articles 113 and 114.
Article 43
Appointment of senior officials
Article 44
Control of legality
CHAPTER IV
THE BOARDS OF APPEAL
Article 45
Establishment and powers
Article 46
Composition of the Boards of Appeal
Article 47
Independence of the members of the Boards of Appeal
Article 48
Exclusion and objection
PART FOUR
PROCEEDINGS BEFORE THE OFFICE
CHAPTER I
APPLICATIONS
Article 49
Filing of applications
An application for a Community plant variety right shall be filed at the choice of the applicant:
at the Office directly; or
at one of the sub-offices or national agencies, established or entrusted, pursuant to Article 30 (4), subject to the applicant forwarding an information on this filing to the Office directly within two weeks after filing.
Details on the manner in which the information referred to in (b) above must be forwarded, may be laid down in the implementing rules pursuant to Article 114. The omission of forwarding information on an application to the Office pursuant to (b) above, does not affect the validity of the application if the application has reached the Office within one month after filing at the sub-office or national agency.
Article 50
Conditions governing applications
The application for a Community plant variety right must contain at least the following:
a request for the grant of a Community plant variety right;
identification of the botanical taxon;
information identifying the applicant or, where appropriate, the joint applicants;
the name of the breeder and an assurance that, to the best of the applicants knowledge, no further persons have been involved in the breeding, or discovery and development, of the variety; if the applicant is not the breeder, or not the only breeder, he shall provide the relevant documentary evidence as to how the entitlement to the Community plant variety right came into his possession;
a provisional designation for the variety;
a technical description of the variety;
the geographic origin of the variety;
the credentials of any procedural representative;
details of any previous commercialization of the variety;
details of any other application made in respect of the variety.
Article 51
Date of application
The date of application for a Community plant variety right shall be the date on which a valid application was received by the Office pursuant to Article 49 (1) (a) or by a sub-office or national agency pursuant to Article 49 (1) (b), provided it complies with Article 50 (1) and subject to payment of the fees due pursuant to Article 83 within a time limit specified by the Office.
Article 52
The right of priority
CHAPTER II
EXAMINATION
Article 53
Formal examination of application
The Office shall examine whether:
the application has effectively been filed pursuant to Article 49;
the application complies with the conditions laid down in Article 50 and the conditions laid down in the implementing rules pursuant to that Article;
where appropriate, a claim for priority complies with the provision laid down in Article 52 (2), (4) and (5); and
the fees due pursuant to Article 83 have been paid within a time limit specified by the Office.
Article 54
Substantive examination
Article 55
Technical examination
Article 56
The conduct of technical examinations
Article 57
Examination reports
Article 58
Costs of technical examinations
The Office shall pay the Examination Offices a fee in accordance with the implementing rules pursuant to Article 114.
Article 59
Objections to grant of right
Objections may be based only on the contention that:
the conditions laid down in Articles 7 to 11 are not complied with;
there is an impediment under Article 63 (3) or (4) to a proposed variety denomination.
Objections may be lodged:
at any time after the application and prior to a decision pursuant to Articles 61 or 62, in the case of paragraph 3 (a) hereof;
within three months of the publication of the proposed variety denomination pursuant to Article 89, in the case of objections under paragraph 3 (b) hereof.
Article 60
Priority of a new application in the case of objections
Where an objection on the grounds that the conditions laid down in Article 11 are not met leads to the withdrawal or refusal of the application for a Community plant variety right and if the objector files an application for a Community plant variety right within one month following the withdrawal or within one month of the date on which the refusal becomes final in respect of the same variety, he may require that the date of the withdrawn or refused application be deemed to be the date of his application.
CHAPTER III
DECISIONS
Article 61
Refusal
The Office shall refuse applications for a Community plant variety right if and as soon as it establishes that the applicant:
has not remedied any deficiencies within the meaning of Article 53 which he was given an opportunity to correct within the time limit notified to him;
has not complied with a rule or request pursuant to Article 55 (4) or (5) within the time limit laid down, unless the Office has consented to non-submission; or
has not proposed a variety denomination which is suitable pursuant to Article 63.
The Office shall also refuse applications for a Community plant variety right if:
it establishes that the conditions it is required to verify pursuant to Article 54 have not been fulfilled; or
it reaches the opinion on the basis of the examination reports pursuant to Article 57, that the conditions laid down in Articles 7, 8 and 9 have not been fulfilled.
Article 62
Grant
If the Office is of the opinion that the findings of the examination are sufficient to decide on the application and there are no impediments pursuant to Articles 59 and 61, it shall grant the Community plant variety right. The decision shall include an official description of the variety.
Article 63
Variety denomination
There is an impediment for the designation of a variety denomination where:
its use in the territory of the Community is precluded by the prior right of a third party;
it may commonly cause its users difficulties as regards recognition or reproduction;
it is identical or may be confused with a variety denomination under which another variety of the same or of a closely related species is entered in an official register of plant varieties or under which material of another variety has been marketed in a Member State or in a Member of the International Unit for the Protection of New Varieties of Plants, unless the other variety no longer remains in existence and its denomination has acquired no special significance;
it is identical or may be confused with other designations which are commonly used for the marketing of goods or which have to be kept free under other legislation;
it is liable to give offence in one of the Member States or is contrary to public policy;
it is liable to mislead or to cause confusion concerning the characteristics, the value or the identity of the variety, or the identity of the breeder or any other party to proceedings.
There is another impediment where, in the case of a variety which has already been entered:
in one of the Member States; or
in a Member of the International Union for the Protection of New Varieties of Plants; or
in another State for which it has been established in a Community act that varieties are evaluated there under rules which are equivalent to those laid down in the Directives on common catalogues;
in an official register of plant varieties or material thereof and has been marketed there for commercial purposes, and the proposed variety denomination differs from that which has been registered or used there, unless the latter one is the object of an impediment pursuant to paragraph 3.
CHAPTER IV
THE MAINTENANCE OF COMMUNITY PLANT VARIETY RIGHTS
Article 64
Technical verification
Article 65
Report on the technical verification
Article 66
Amendment of the variety denomination
CHAPTER V
APPEALS
Article 67
Decisions subject to appeal
Article 68
Persons entitled to appeal and to be parties to appeal proceedings
Any natural or legal person may appeal, subject to Article 82, against a decision, addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former. The parties to proceedings may, and the Office shall, be party to the appeal proceedings.
Article 69
Time limit and form
Notice of appeal shall be filed in writing at the Office within two months of the service of the decision where addressed to the appealing person, or, in the absence thereof, within two months of the publication of the decision, and a written statement setting out the grounds of appeal shall be filed within four months after the aforesaid service or publication.
Article 70
Interlocutory revision
If the decision is not rectified within one month after receipt of the statement of grounds, for the appeal, the Office shall forthwith:
Article 71
Examination of appeals
Article 72
Decision on appeal
The Board of Appeal shall decide on the appeal on the basis of the examination carried out pursuant to Article 71. The Board of Appeal may exercise any power which lies within the competence of the Office, or it may remit the case to the competent body of the Office for further action. The latter one shall, in so far as the facts are the same, be bound by the ratio decidendi of the Board of Appeal.
Article 73
Actions against decisions of the Boards of Appeal
CHAPTER VI
MISCELLANEOUS CONDITIONS GOVERNING PROCEEDINGS
Article 75
Statement of grounds on which decisions are based, right of audience
Decisions of the Office shall be accompanied by statements of the grounds on which they are based. They shall be based only on grounds or evidence on which the parties to proceedings have had an opportunity to present their comments orally or in writing.
Article 76
Examination of the facts by the Office of its own motion
In proceedings before it the Office shall make investigations on the facts of its own motion, to the extent that they come under the examination pursuant to Articles 54 and 55. It shall disregard facts or items of evidence which have not been submitted within the time limit set by the Office.
Article 77
Oral proceedings
Article 78
Taking of evidence
In any proceedings before the Office, the means of giving or obtaining evidence may include the following:
hearing the parties to proceedings;
requests for information;
the production of documents or other evidence;
hearing the witnesses;
opinions by experts;
inspection;
sworn affidavits.
If the Office considers it necessary that a party to proceedings, witness or expert give evidence orally, it shall either:
issue a summons requiring the relevant person to appear before it; or
request the competent judicial or other authority in the country of domicile of the relevant person to take the evidence as provided for in Article 91 (2).
Article 79
Service
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. Service may be effected through the competent variety offices of the Member States.
Article 80
Restitutio in integrum
Article 81
General principles
Article 82
Procedural representative
Persons who are not domiciled or do not have a seat or an establishment within the territory of the Community may participate as party to proceedings before the Office only if they have designated a procedural representative who is domiciled or has his seat or an establishment within the territory of the Community.
CHAPTER VII
FEES, SETTLEMENT OF COSTS
Article 83
Fees
Article 84
Termination of financial obligations
Article 85
Apportionment of costs
Article 86
Enforcement of decisions which determine the amount of costs
CHAPTER VIII
REGISTERS
Article 87
Establishment of the Registers
The Office shall keep a Register of Applications for Community Plant Variety Rights which shall contain the following particulars:
applications for a Community plant variety right together with a statement of the taxon and the provisional designation of the variety, the date of application and the name and address of the applicant, of the breeder and of any procedural representative concerned;
any cases of termination of proceedings concerning applications for a Community plant variety right together with the information set out in subparagraph (a);
proposals for variety denominations;
changes in the identity of the applicant or his procedural representative;
on request, any levy of execution as referred to in Articles 24 and 26.
The Office shall keep a Register of Community Plant Variety Rights wherein, after grant of a Community plant variety right, the following particulars shall be entered:
the species and variety denomination of the variety;
the official description of the variety or a reference to documents in the Office's possession in which the official description of the variety is contained as integrating part of the Register;
in the case of varieties for which material with specific components has to be used repeatedly for the production of material, a reference to such components;
the name and address of the holder, of the breeder and of any procedural representative concerned;
the date on which the Community plant variety right begins and ends, together with the reasons for the termination of right;
on request, any contractual exclusive exploitation right or compulsory exploitation right, including the name and address of the person enjoying the right of exploitation;
on request, any levy of execution as referred to in Article 24;
where the holder of an initial variety and the breeder of a variety essentially derived from the initial variety both so request, the identification of the varieties as initial and essentially derived including the variety denominations and the names of the parties concerned. A request from one of the parties concerned only shall suffice if he has obtained either a non-contentious acknowledgement by the other party pursuant to Article 99 or a final decision or a final judgment pursuant to the provisions of this Regulation which contain an identification of the varieties concerned as initial and essentially derived.
Article 88
Public inspection
In case of a legitimate interest, the following shall be open to public inspection, in accordance with the conditions set up in the implementing rules pursuant to Article 114:
documents relating to applications for grant of a Community plant variety right;
documents relating to Community plant variety rights already granted;
the growing of varieties for the purposes of their technical examination;
the growing of varieties for the purpose of verifying their continuing existence.
Article 89
Periodical publications
The Office shall at least every two months, issue a publication containing the information entered into the Registers pursuant to Article 87 (1) and (2) (a), (d), (e), (f), (g) and (h), and not yet published. The Office shall also publish an annual report, containing information which the Office regards as expedient, but at least a list of valid Community plant variety rights, their holders, the dates of grant and expiry and the approved variety denominations. Details of these publications shall be specified by the Administrative Council.
Article 90
Exchange of information and of publications
The data referred to in Article 88 (3) shall be excluded from information, unless:
the information is necessary for the conduct of the examinations pursuant to Articles 55 and 64; or
the applicant for a Community plant variety right or the holder gives his consent.
Article 91
Administrative and legal cooperation
PART FIVE
IMPACT ON OTHER LAWS
Article 92
Cumulative protection prohibited
Article 93
Application of national law
Claims under Community plant variety rights shall be subject to limitations imposed by the law of the Member States only as expressly referred to in this Regulation.
PART SIX
CIVIL LAW CLAIMS, INFRINGEMENTS, JURISDICTION
Article 94
Infringement
Whosoever:
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; or
omits the correct usage of a variety denomination as referred to in Article 17 (1) or omits the relevant information as referred to in Article 17 (2); or
contrary to Article 18 (3) uses the variety denomination of a variety for which a Community plant variety right has been granted or a designation that may be confused with it;
may be sued by the holder to enjoin such infringement or to pay reasonable compensation or both.
Article 95
Acts prior to grant of Community plant variety rights
The holder may require reasonable compensation from any person who has, in the time between publication of the application for a Community plant variety right and grant thereof, effected an act that he would be prohibited from performing subsequent thereto.
Article 96
Prescription
Claims pursuant to Articles 94 and 95 shall be time barred after three years from the time at which the Community plant variety right has finally been granted and the holder has knowledge of the act and of the identity of the party liable or, in the absence of such knowledge, after 30 years from the termination of the act concerned.
Article 97
Supplementary application of national law regarding infringement
Article 98
Claiming entitlement to a Community plant variety right
Article 99
Obtaining identification of a variety
The holder of an initial variety and the breeder of a variety essentially derived from the initial variety shall be entitled to obtain an acknowledgement of the identification of the varieties concerned as initial and essentially derived.
Article 100
Consequences of a change in holdership of a Community plant variety right
Article 101
Jurisdiction and procedure in legal actions relating to civil law claims
Proceedings of the type referred to in paragraph 1 shall be brought in the courts:
of the Member State or another Contracting Party to the Lugano Convention in which the defendant is domiciled or has his seat or, in the absence of such, has an establishment; or
if this condition is not met in any of the Member States or Contracting Parties, of the Member State in which the plaintiff is domiciled or has his seat or, in the absence of such, has an establishment; or
if this condition is also not met in any of the Member States, of the Member States in which the seat of the Office is located.
The competent courts shall have jurisdiction in respect of infringements alleged to have been committed in any of the Member States.
Article 102
Supplementary provisions
Article 103
Rules of procedure applicable
Where jurisdiction lies with national courts pursuant to Articles 101 and 102, the rules of procedure of the relevant State governing the same type of action relating to corresponding national property rights shall apply without prejudice to Articles 104 and 105.
Article 104
Entitlement to bring an action for infringement
Article 105
Obligation of national courts or other bodies
A national court or other body hearing an action relating to a Community plant variety right shall treat the Community plant variety right as valid.
Article 106
Stay of proceedings
Article 107
Penalties for infringement of Community plant variety rights
Member States shall take all appropriate measures to ensure that the same provisions are made applicable to penalize infringements of Community plant variety rights as apply in the matter of infringements of corresponding national rights.
PART SEVEN
BUDGET, FINANCIAL CONTROL, COMMUNITY IMPLEMENTING RULES
Article 108
Budget
Article 109
Preparation of the budget
Article 110
Implementation of the budget
The President shall implement the Office's budget.
Article 111
Audit and control
The internal auditor shall advise the President on dealing with risks, by issuing independent opinions on the quality of management and control systems and by issuing recommendations for improving the conditions of implementation of operations and promoting sound financial management.
The responsibility for putting in place internal control systems and procedures suitable for carrying out his tasks shall lie with the authorising officer.
Article 112
Financial provisions
The Administrative Council shall, after consulting the Court of Auditors, adopt internal financial provisions specifying, in particular, the procedure for establishing and implementing the Office's budget. The financial provisions must, as far as possible, correspond to the provisions of the Financial Regulation applicable to the general budget of the European Communities and depart from them only when the specific requirements of the individual operation of the Office so dictate.
Article 113
Fees regulations
Fees shall be charged for at least in respect of the following matters for:
the processing of applications for grant of a Community plant variety right; this fee shall cover:
the arranging and carrying out of the technical examination;
the processing of an appeal including the decision;
each year of the duration of a Community plant variety right.
Without prejudice to (b) and (c), the amounts of the fees shall be fixed at such a level as to ensure that the revenue in respect thereof is in principle sufficient for the budget of the Office to be balanced.
However, the subsidy referred to in Article 108 (3) may cover, for a transitional period ending on 31 December of the fourth year from the date laid down in Article 118 (2), the expenditure relating to the initial running phase of the Office. In accordance with the procedure laid down in Article 115, this period may be extended, if necessary, for no more than one year.
Moreover, during the abovementioned transitional period only, the subsidy referred to in Article 108 (3) may also cover certain expenditure of the Office relating to certain activities other than the processing of applications, the arranging and carrying out of the technical examinations and the processing of appeals. These activities shall be specified, at the latest one year after the adoption of this Regulation, in implementing rules pursuant to Article 114.
Article 114
Other implementing rules
Detailed implementing rules shall be adopted for the purpose of applying this Regulation. They shall in particular include procisions:
Article 115
Procedure
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.
PART EIGHT
TRANSITIONAL AND FINAL PROVISIONS
Article 116
Derogations
In the case of a Community plant variety right granted pursuant to paragraphs 1 or 2:
but not more than by five years.
Article 117
Transitional provisions
The Office shall be set up in good time to assume fully the tasks incumbent upon it pursuant to this Regulation as from 27 April 1995.
Article 118
Entry into force
This Regulation shall be binding in its entirety and directly applicable in all Member States.
( 1 ) OJ No C 244, 28.9.1990, p. 1 and OJ No C 113, 23.4.1993, p. 7.
( 2 ) OJ No C 305, 23.11.1992, p. 55 and OJ No C 67, 16.3.1992, p. 148.
( 3 ) OJ No C 305, 23.11.1992, p. 55 and OJ No C 67, 16.3.1992, p. 148.
( 4 ) OJ No L 181, 1.7.1992, p. 12. Regulation as last amended by Regulation (EEC) No 1552/93 (OJ No L 154, 25.6.1993, p. 19).
( 5 ) OJ L 145, 31.5.2001, p. 43.
( 6 ) OJ L 245, 29.9.2003, p. 28.
( 7 ) OJ No 17, 6.10.1958, p. 385/58. Regulation as last amended by the 1985 Act of Accession.
( 8 ) OJ L 184, 17.7.1999, p. 23.