Keywords
Summary

Keywords

1. Agriculture – Uniform legislation – Protection of plant varieties – Regulations Nos 2100/94 and 1239/95 – Appeals procedure

(Council Regulation No 2100/94; Commission Regulation No 1239/95, Art. 49(1))

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Art. 230, fourth para., EC; Council Regulation No 2100/94, Art. 68)

3. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Art. 230, fourth para., EC; Council Regulation No 2100/94, Arts 59, 67 and 68)

4. Agriculture – Uniform legislation – Protection of plant varieties – Regulations Nos 2100/94 and 1239/95 – Appeals procedure

(Council Regulation No 2100/94; Commission Regulation No 1239/95)

Summary

1. It can be seen from several language versions of Article 49(1) of Regulation No 1239/95 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the Community Plant Variety Office that the obligation to inform and to request remedial action is subject to the objective possibility that the deficiencies found can be rectified. Thus, that provision requires the Board of Appeal to assess whether it is possible for an appellant to remedy a deficiency in order to limit the request for remedial action to corrections which are possible. Since the objective of the obligation to inform and to request remedial action laid down in the abovementioned Article 49(1) is to permit an appellant to remedy the deficiencies found by the Board of Appeal within the period specified, it must be possible for those deficiencies to be remedied.

In addition, the obligation to inform is linked to that of requiring the applicant to remedy deficiencies capable of being remedied. Since Article 49(1) of Regulation No 1239/95 requires the Board of Appeal to ascertain whether the appeal complies with all the provisions of the basic regulation and the implementing regulation, it would otherwise be obliged to inform the applicant of all problems relating to admissibility, including those which could not be remedied, which would be contrary to the objective of that provision. Although, in specific situations, informing an appellant of a problem of admissibility which cannot be remedied may certainly protect that appellant from a decision based on reasoning which has not been subject to an exchange of views, such a general obligation to inform would most often be a burden for the Board of Appeal and, at the same time, ineffective, since that appellant would be unable to remedy the problem.

(see paras 34, 37)

2. In order to determine whether a person is individually concerned within the meaning of Article 68 of Regulation No 2100/94 on Community plant variety rights, that person must be affected by the decision granting protection by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons and distinguished individually just as in the case of the person addressed. In that regard, a professional association set up to protect and represent the interests of its members, such as a federation of unions of farming cooperatives in three Spanish provinces which in turn comprise almost all the local farming cooperatives in those three provinces, has standing to bring an action for annulment only where the association is differentiated by reason of the adverse impact on its own interests as an association, in particular because its position as a negotiator has been affected by the measure of which the annulment is sought, where the association represents the interests of undertakings which themselves have locus standi or where a legal provision expressly confers upon it a number of powers of a procedural nature. Since none of those conditions are fulfilled in the present case, the action brought by the abovementioned federation is inadmissible.

(see paras 84-86, 111)

3. While it is true that the condition of individual concern laid down in the fourth paragraph of Article 230 EC must be interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually, such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts. Since the concept of a person to whom a decision is of ‘individual concern’ within the meaning of Article 68 of Regulation No 2100/94 on Community plant variety rights must be applied in the light of the case-law on admissibility of actions brought under the fourth paragraph of Article 230 EC, those considerations apply equally to the present case.

Moreover, according to Articles 59, 67 and 68 of Regulation No 2100/94, any person who has raised a written objection to the grant of the plant variety right in the course of the administrative procedure may lodge an appeal before the Board of Appeal of the Community Plant Variety Office and, pursuant to Article 68, to persons who did not take part in the procedure and to whom the decision adopted at the end of that procedure is not addressed but to whom it is of direct and individual concern. Since an appeal before the Board of Appeal permits a further appeal to the Community Courts, the applicant cannot allege a lack of effective judicial protection.

(see paras 116-117)

4. An applicant challenging a decision of the Board of Appeal of the Community Plant Variety Office concerning the grant of a Community plant variety right in regard to a mandarin variety has no legitimate interest in securing the annulment of such a decision on the ground of a formal defect where the annulment of the decision could only give rise to another decision substantially identical to the decision annulled.

(see para. 126)