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Document 02009R0874-20160922
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 Plant Variety Office (recast)
Consolidated text: 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 Plant Variety Office (recast)
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 Plant Variety Office (recast)
02009R0874 — EN — 22.09.2016 — 001.001
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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 Plant Variety Office (OJ L 251 24.9.2009, p. 3) |
Amended by:
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COMMISSION IMPLEMENTING REGULATION (EU) 2016/1448 of 1 September 2016 |
L 236 |
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2.9.2016 |
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 Plant Variety Office
(recast)
TITLE I
PARTIES TO PROCEEDINGS, OFFICE AND EXAMINATION OFFICES
CHAPTER I
Parties to proceedings
Article 1
Parties to proceedings
The following persons may be party to proceedings before the Community Plant Variety Office, hereinafter referred to as ‘the Office’:
the applicant for a Community plant variety right;
the objector referred to in Article 59(2) of Regulation (EC) No 2100/94, hereinafter referred to as ‘the basic Regulation’;
the holder or holders of the Community plant variety right, hereinafter referred to as ‘the holder’;
any person whose application or request is a prerequisite for a decision to be taken by the Office.
Article 2
Designation of parties to proceedings
The President of the Office shall determine the details concerning the address including any relevant details of other data communication links.
The Office may permit derogations from the provisions of the first sentence of the first subparagraph.
Article 3
Languages of parties to proceedings
A successor in title as referred to in Article 23(1) of the basic Regulation may however request that another official language of the European Union be used during future proceedings, provided that such request is submitted upon the entry of the transfer of a Community plant variety right into the Register of Community Plant Variety Rights.
Article 4
Languages in oral proceedings and in the taking of evidence
Parties to the proceedings, a witness or expert, and the members of the staff of the Office or the Board of Appeal may agree that during the oral proceedings only one of the official languages of the European Union shall be used.
The Office may allow derogations from the first subparagraph.
Article 5
Translation of documents of parties to proceedings
Parties to proceedings and the members of the staff of the Office or of the Board of Appeal may agree to have a translation of a document in only one of the official languages of the European Union.
CHAPTER II
The Office
Article 6
Qualification of members of the Committees
Article 7
Decisions of the Committee
A Committee shall, besides taking the decisions referred to in Article 35(2) of the basic Regulation, deal with:
Article 8
Power of individual members of the Committees
The rapporteur may in particular:
perform the duties under Article 25 and monitor the submission of reports by the Examination Offices, referred to in Articles 13 and 14;
pursue the procedure within the Office, including the communication of any deficiencies to be remedied by a party to proceedings and the setting of time limits; and
ensure a close consultation and exchange of information with the parties to the proceedings.
Article 9
Role of the President
The President of the Office shall ensure the consistency of decisions taken under his authority. He shall in particular lay down the conditions under which decisions on objections lodged pursuant to Article 59 of the basic Regulation, and also decisions pursuant to Articles 61, 62, 63 or 66 of that Regulation, are taken.
Article 10
Consultations
Members of the staff of the Office may use, free of charge, the premises of national agencies referred to in Article 30(4) of the basic Regulation and those of Examination Offices and agencies referred to in Article 13 and Article 14, respectively, of this Regulation, for holding periodical consultation days with parties to proceedings and third persons.
Article 11
Boards of Appeal
Article 12
Registry attached to a Board of Appeal
The employees of the registry shall in particular be responsible for:
CHAPTER III
Examination Offices
Article 13
Designation of an Examination Office referred to in Article 55(1) of the basic Regulation
Should an Examination Office make use of technically qualified bodies referred to in Article 56(3) of the basic Regulation, the Examination Office shall ensure compliance with the relevant requirements, guidelines and procedures of the Office.
The Office shall conduct an audit to check whether the Examination Office complies with the relevant requirements, guidelines and procedures of the Office. Following an audit, the Office shall draw up an audit report.
The Administrative Council shall base its decision on the designation of an Examination Office on the audit report drawn up by the Office.
For the extension of the scope of an existing designation of an Examination Office initiated by an Examination Office, the Administrative Council shall base its decision on an audit report drawn up by the Office.
Based on a request by an Examination Office, to which the Office agrees, the scope of an existing designation of an Examination Office may be reduced. The Office shall implement the reduction in the agreement referred to in Article 15(1).
The Office may develop guiding principles concerning the use by Examination Offices of plant material that has been submitted for distinctiveness, uniformity and stability testing in the framework of applications for a Community plant variety right. Such guiding principles may include conditions under which such plant material may be transferred between Examination Offices.
Article 14
Designation of an agency or establishment of a sub-office referred to in Article 55(2) of the basic Regulation
Article 15
Procedure for designation
In the circumstances set out in paragraph 3, the Examination Office shall take into account costs incurred by such a body. The Office shall lay down the format of breakdown of the costs. If, after two requests from the Office, the Examination Office fails to provide the Office with the breakdown of the costs within the deadline established by the Office, the fee referred to in paragraph 4 may be reduced by 20 %.
TITLE II
SPECIFIC PROCEEDINGS BEFORE THE OFFICE
CHAPTER I
Application for a Community plant variety right
Article 16
Filing of the application
Where the application is filed at the Office it may be filed in paper format or by electronic means. Where it is filed at the national agencies or sub-offices it shall be filed in paper format in duplicate.
The information sent to the Office in accordance with Article 49(1)(b) of the basic Regulation shall contain:
The Office shall make available the following forms free of charge:
an application form and a technical questionnaire, for the purposes of filing an application for a Community plant variety right;
a form for forwarding the information referred to in paragraph 2, indicating the consequences of any failure of the forwarding.
Article 17
Receipt of the application
Article 18
Conditions laid down in Article 50(1) of the basic Regulation
An application complies with the condition laid down in Article 50(1)(j) of the basic Regulation only if the date and the country given in any earlier application for the variety are, to the best of the applicant's knowledge, indicated in respect of:
an application for a property right in respect of the variety, in a Member State or a member of the International Union for the Protection of New Varieties of Plants (‘UPOV’); and
an application for official acceptance of the variety for certification and marketing where official acceptance includes an official description of the variety.
Article 19
Conditions referred to in Article 50(2) of the basic Regulation
The applicant shall provide the following information in the application form or in the technical questionnaire referred to in Article 16(3)(a), where relevant:
the identity and the contact details of the applicant, his designation as a party to proceedings referred to in Article 2 and, where appropriate, the name and address of the procedural representative;
where the applicant is not the breeder, the name and address of the breeder and his entitlement to apply for the Community plant variety right;
the scientific name of the genus, species or subspecies to which the variety belongs, and the common name;
the variety denomination or, in the absence thereof, the provisional designation;
the location in which the variety was bred or discovered and developed, and the maintenance and the propagation of the variety, including information on the characteristics, the cultivation of any other variety or varieties the material of which has to be used repeatedly for the production of the variety. For material to be used repeatedly for the production of the variety, the applicant may provide the information concerning such material, if he requests so, in the form provided by the Office pursuant to Article 86;
the characteristics of the variety, including the state of expression for certain characteristics based on the technical questionnaire referred to in Article 16(3)(a);
where appropriate, similar varieties and differences from those varieties, which, in the applicant's opinion, are relevant for the technical examination;
additional information that may help distinguishing the variety, including representative colour photos of the variety and other information on the plant material to be examined during the technical examination;
where appropriate, characteristics that have been genetically modified, where the variety concerned represents a genetically modified organism within the meaning of Article 2(2) of Directive 2001/18/EC of the European Parliament and of the Council ( 1 );
the date of any sale or first disposal to others, of varietal constituents or harvested material of the variety, to exploit the variety within the territory of the European Union or in one or more third countries, or to assess whether a variety is new as referred to in Article 10 of the basic Regulation, or a declaration that such sale or first disposal has not yet occurred;
the designation of the authority applied to and the file number of the applications referred to in Article 18(3) of this Regulation;
existing national or regional plant variety rights that have been granted to the variety;
whether an application for the variety concerned has been submitted for listing or registration or a decision has been taken pursuant to Article 5 of Council Directive 68/193/EEC ( 2 ), Article 10 of Council Directive 2002/53/EC ( 3 ), Article 10 of Council Directive 2002/55/EC ( 4 ) and Article 5 of Commission Implementing Directive 2014/97/EU ( 5 ).
Article 20
Claiming priority
If the applicant claims a right of priority for an application within the meaning of Article 52(2) of the basic Regulation, which is not the earliest of those to be indicated pursuant to the first indent of Article 18(3) of this Regulation, the Office shall state that a priority date can only be given to such earlier application. Where the Office has issued a receipt including the date of filing of an application which is not the earliest of those to be indicated, the priority date notified shall be considered void.
Article 21
Entitlement to a Community plant variety right during proceedings
Article 22
Decision on test guidelines
Article 23
Powers vested in the President of the Office
▼M1 —————
Article 24
Notification by the Office of the Examination Office
In accordance with Article 55(3) of the basic Regulation, the Office shall transmit to the Examination Office the following documents relating to the variety in electronic format:
the application form, the technical questionnaire and each additional document submitted by the applicant containing information needed for the conduct of the technical examination;
the forms filled out by the applicant pursuant to Article 86 of this Regulation;
documents relating to an objection based on the contention that the conditions laid down in Articles 7, 8 and 9 of the basic Regulation have not been met.
Article 25
Cooperation between the Office and the Examination Office
The staff of the Examination Office responsible for the technical examination and the rapporteur designated in accordance with Article 8(1) shall cooperate in all phases of a technical examination. Cooperation shall cover at least the following aspects:
the monitoring of the conduct of the technical examination, including the inspection of the locations of the test plots and the methods used for the tests by the rapporteur;
without prejudice to other investigations by the Office, information from the Examination Office about details of any previous disposal of the variety; and
the submission by the Examination Office to the Office of interim reports on each growing period.
Article 26
Form of the examination reports
Article 27
Other examination reports
An examination report on the results of any technical examination which has been carried out or is in the process of being carried out for official purposes in a Member State by one of the offices responsible for the species concerned pursuant to Article 55(1) of the basic Regulation may be considered by the Office to constitute a sufficient basis for decision, provided that:
the material submitted for the technical examination has complied, in quantity and quality, with any standards that may have been laid down pursuant to Article 55(4) of the basic Regulation;
the technical examination has been carried out in a manner consistent with the designation by the Administrative Council pursuant to Article 55(1) of the basic Regulation and with the requirements referred to in Article 13(1a) of this Regulation and has been conducted in accordance with the test guidelines issued and any general instructions given, pursuant to Article 56(2) of the basic Regulation and Articles 22 and 23 of this Regulation;
the Office has had the opportunity to monitor the conduct of the technical examination concerned; and
where the final report is not immediately available, the interim reports on each growing period are submitted to the Office prior to the examination report.
An examination report on the results of a technical examination that has been carried out or is in the process of being carried out for official purposes in a third country or in the territory of a regional organisation that is a member of the UPOV or that is a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’), may be considered by the Office to constitute a sufficient basis for decision, provided that the technical examination complies with the conditions laid down in a written agreement between the Office and the competent authority of such third country or regional organisation. Such conditions shall at least include:
conditions relating to the material, as referred to in point (a) of paragraph 1;
the condition that the technical examination has been conducted in accordance with the test guidelines issued, or general instructions given, pursuant to Article 56(2) of the basic Regulation and Article 22 of this Regulation;
the condition that the Office has had the opportunity to assess the suitability of facilities for carrying out a technical examination for the species concerned in that third country or in the territory of that regional organisation;
conditions relating to the availability of reports, as laid down in point (d) of paragraph 1;
the condition that the third country has adequate experience in testing the genera or species concerned; and
the condition that the written agreement is concluded with the consent of the Administrative Council.
The Office may request a competent authority of a third country or of a regional organisation that is a member of the UPOV or is a party to TRIPS to perform the technical examination, provided that a written agreement has been signed between the Office and that competent authority and provided that one of the following conditions applies:
there is no possibility to realise the technical examination for the specific species in an Examination Office in the European Union, and an examination report on the results of a technical examination, referred to in paragraph 4, is not available or is not expected to become available;
an examination report on the results of a technical examination referred to in paragraph 4 is expected to be made available but the conditions established under paragraph 4 to conduct the technical examination are not fulfilled.
The written agreement referred to in paragraph 5 shall be concluded with the consent of the Administrative Council, based on the following conditions:
conditions relating to the material, as referred to in point (a) of paragraph 1;
the condition that the technical examination will be conducted in accordance with the test guidelines issued, or general instructions given, pursuant to Article 56(2) of the basic Regulation and Article 22 of this Regulation;
the condition that the Office has had the opportunity to assess the suitability of facilities for carrying out a technical examination for the species concerned in that third country or in the territory of that regional organisation and to monitor the technical examination concerned;
conditions relating to the availability of reports, as laid down in point (d) of paragraph 1;
the condition that the third country has adequate experience in testing the genera or species concerned.
Article 28
Proposal for a variety denomination
The proposal for a variety denomination shall be signed and shall be filed at the Office, ►M1 or, if the proposal accompanies the application for a Community plant variety right filed at the national agency designated or the sub-office established pursuant to Article 30(4) of the basic Regulation, in duplicate ◄ .
The Office shall make available, free of charge, a form for the purposes of proposing a variety denomination.
Where the proposal for a variety denomination is submitted by electronic means it shall comply with the second subparagraph of Article 57(3) of this Regulation as regards the signature.
Article 29
Examination of a proposal
Article 30
Guidelines for variety denomination
The Administrative Council shall adopt guidelines establishing uniform and definitive criteria for determining impediments to the generic designation of a variety denomination referred to in Article 63(3) and (4) of the basic Regulation.
CHAPTER II
Objection
Article 31
Filing of objections
Objections under Article 59 of the basic Regulation shall contain:
the name of the applicant and the file number of the application to which the objection is lodged;
the designation of the objector as a party to proceedings as set out in Article 2 of this Regulation;
if the objector has appointed a procedural representative, his name and address;
a statement on the contention referred to in Article 59(3) of the basic Regulation on which the objection is based, and on particulars, items of evidence and arguments presented in support of the objection.
Article 32
Rejection of objections
CHAPTER III
Maintenance of Community plant variety rights
Article 33
Obligations of the holder under Article 64(3) of the basic Regulation
Article 34
Technical verification of the protected variety
Without prejudice to Article 87(4) of the basic Regulation, a technical verification of the protected variety shall be conducted in accordance with the test guidelines duly applied when the Community plant variety right was granted in respect of that variety. Articles 22 and 24 to 27 of this Regulation shall apply mutatis mutandis to the Office, the Examination Office and to the holder.
Article 35
Other material to be used for a technical verification
When the holder has submitted material of the variety in accordance with Article 64(3) of the basic Regulation, the Examination Office may, with the consent of the Office, verify the submitted material by inspecting other material which has been taken from holdings where material is produced by the holder, or with his consent, or taken from material being marketed by him, or with his consent, or taken by official bodies in a Member State by virtue of their powers.
Article 36
Amendments of the variety denominations
CHAPTER IV
Community licences to be granted by the Office
Article 37
Applications for a compulsory licence
The application for a compulsory licence pursuant to Article 29(1), (2) and (5) of the basic Regulation shall contain:
the designation of the applicant and the opposing holder of the variety concerned as parties to proceedings;
the variety denomination and the plant species of the variety or varieties concerned;
a proposal for the type of acts to be covered by the compulsory licence;
a statement setting out the public interest concerned, including details of facts, items of evidence and arguments presented in support of the public interest claimed;
in the case of an application referred to in Article 29(2) of the basic Regulation, a proposal for the category of persons to which the compulsory licence shall be granted, including, as the case may be, the specific requirements related to that category of persons;
a proposal for an equitable remuneration and the basis for calculating the remuneration.
The application for a compulsory licence referred to in Article 29(5a) of the basic Regulation shall contain:
the designation of the applicant holding a patent right and the opposing holder of the variety concerned as parties to proceedings;
the variety denomination and the plant species of the variety or varieties concerned;
an electronic copy of the patent certificate(s) showing the number and claims of the patent for a biotechnological invention and the granting authority or authorities of the patent;
a proposal for the type of acts to be covered by the compulsory licence;
a proposal for an equitable remuneration and the basis for calculating the remuneration;
a statement setting out why the biotechnological invention constitutes significant technical progress of considerable economic interest compared with the protected variety, including details of facts, items of evidence and arguments in support of the claim;
a proposal for the territorial scope of the licence, which may not exceed the territorial scope of the patent referred to in point (c).
The application for a cross-licence referred to in the second subparagraph of Article 29(5a) of the basic Regulation shall contain:
the designation of the applicant holding a patent right and the opposing holder of the variety concerned as parties to proceedings;
the variety denomination and the plant species of the variety or varieties concerned;
an electronic copy of the patent certificate(s) showing the number and claims of the patent for a biotechnological invention and the granting authority or authorities of the patent;
an official document showing that a compulsory licence for a patented biotechnological invention has been granted to the holder of the plant variety right;
a proposal for the type of acts to be covered by the cross-licence;
a proposal for an equitable remuneration and the basis for calculating the remuneration;
a proposal for the territorial scope of the cross-licence, which may not exceed the territorial scope of the patent referred to in point (c).
A request for a contractual licence shall be considered unsuccessful within the meaning of paragraph 4 if:
the opposing holder has not given a final reply to the person seeking such right within a reasonable period; or
the opposing holder has refused to grant a contractual licence to the person seeking it; or
the opposing holder has offered a licence to the person seeking it, on obviously unreasonable fundamental terms including those relating to the royalty to be paid, or on terms which, seen as a whole, are obviously unreasonable.
Article 38
Examination of the application for a compulsory licence
Article 39
Tenure of a Community plant variety right during the proceedings
Article 40
Contents of the decision on the application
The written decision shall be signed by the President of the Office. The decision shall contain:
a statement that the decision is delivered by the Office;
the date when the decision was taken;
the names of the members of the committee having taken part in the proceedings;
the names of the parties to the proceedings and of their procedural representatives;
the reference to the opinion of the Administrative Council;
a statement of the issues to be decided;
a summary of the facts;
the grounds on which the decision is based;
the order of the Office; if need be, the order shall include the stipulated acts covered by the compulsory licence, the specific conditions pertaining thereto and the category of persons, including where appropriate the specific requirements relating to that category.
Article 41
Grant of a compulsory licence
The following grounds may in particular constitute a public interest:
the protection of life or health of humans, animals or plants;
the need to supply the market with material offering specific features;
the need to maintain the incentive for continued breeding of improved varieties.
The decision to grant a compulsory licence pursuant to Article 29(5a) of the basic Regulation shall contain a statement setting out the reasons why the invention constitutes significant technical progress of considerable economic interest. The following grounds may in particular constitute reasons why the invention constitutes significant technical progress of considerable economic interest compared to the protected plant variety:
improvement of cultural techniques;
improvement of the environment;
improvement of techniques to facilitate the use of genetic biodiversity;
improvement of quality;
improvement of yield;
improvement of resistance;
improvement of adaptation to specific climatological and/or environmental conditions.
Article 42
Conditions pertaining to the person to whom a compulsory licence is granted
Article 43
Category of persons satisfying specific requirements pursuant to Article 29(2) of the basic Regulation
Any person intending to make use of a compulsory licence who comes under the category of persons satisfying specific requirements referred to in Article 29(2) of the basic Regulation shall declare his intention to the Office and to the holder by registered letter with advice of delivery. The declaration shall include:
the name and address of that person as laid down for parties to proceedings pursuant to Article 2 of this Regulation;
a statement on the facts meeting the specific requirements;
a statement setting out the acts to be effected; and
an assurance that that person has the appropriate financial resources as well as information about his technical capacity, to make use of the compulsory licence.
Article 44
Exploitation rights pursuant to Article 100(2) of the basic Regulation
TITLE III
PROCEEDINGS BEFORE THE BOARD OF APPEAL
Article 45
Contents of the notice of appeal
The notice of appeal shall contain:
the designation of the appellant as a party to appeal proceedings in accordance with Article 2, and, where the appellant has appointed a procedural representative, the name and address of the representative;
the file number of the decision against which the appeal is lodged and a statement as to the extent to which amendment or cancellation of the decision is sought.
Article 46
Receipt of the notice of appeal
Where the Office receives a notice of appeal, it shall mark it with a file number of the appeal proceedings and the date of receipt at the Office and shall notify the appellant of the time limit for setting out the grounds of the appeal; any omission of such notice may not be pleaded.
Article 47
Participation as a party to the appeal proceedings
Article 48
Role of the Office
Article 49
Rejection of the appeal as inadmissible
Article 50
Oral proceedings
Article 51
Examination of appeals
Unless otherwise provided, the provisions relating to proceedings before the Office shall apply to appeal proceedings mutatis mutandis; parties to proceedings shall in that regard be treated as parties to appeal proceedings.
Article 51a
Several appeals
Article 52
Decision on the appeal
The decision shall be signed by the chairman of the Board of Appeal and by the rapporteur designated pursuant to Article 48(1). The decision shall contain:
a statement that the decision is delivered by the Board of Appeal;
the date when the decision was taken;
the names of the chairman and of the other members of the Board of Appeal having taken part in the appeal proceedings;
the names of the parties to the appeal proceedings and their procedural representatives;
a statement of the issues to be decided;
a summary of the facts;
the grounds on which the decision is based;
the order of the Board of Appeal, including, where necessary, a decision as to the award of costs or the refund of fees.
TITLE IV
GENERAL PROVISIONS RELATING TO PROCEEDINGS
CHAPTER I
Decisions, communications and documents
Article 53
Decisions
Article 53a
Proceedings for nullity and cancellation
A request to the Office to open the proceedings on nullity or cancellation, as referred to in Articles 20 and 21, respectively, of the basic Regulation, shall be accompanied by evidence and facts raising serious doubts as to the validity of the title and shall contain:
as regards the registration in respect of which nullity or cancellation is sought:
the registration number of the Community plant variety right;
the name and address of the holder of the Community plant variety right;
as regards the grounds on which the request is based:
a statement of the grounds on which the request to open the proceedings on nullity or cancellation is based;
an indication of the facts, evidence and arguments presented in support of those grounds;
the name and address of the person making the request and, where he has appointed a procedural representative, the name and address of that representative.
Article 54
Certificate for a Community plant variety right
That certificate shall be delivered by the Office, in the form of a digital document, to the holder of the right or his procedural representative.
Article 55
Communications
Unless otherwise provided, any communication by the Office or an Examination Office shall include the name of the competent member of the staff.
Article 56
Right of audience
Article 57
Documents filed by parties to proceedings
The details concerning electronic submissions shall be determined by the President of the Office.
Where a document is submitted to the Office by electronic means, the indication of the name of the sender and the electronic authentication, consisting of a successful submission of login and password, shall be deemed to be equivalent to the signature.
Where the request is complied with within the period specified, the date of receipt of the signed document or of the retransmission shall be deemed to be the date of the receipt of the first document. Where the request is not complied with within the period specified, the document shall be deemed not to have been received.
In case of paper submissions, documents relating to the proceedings, to two or more applications for a Community plant variety right or to an exploitation right, shall be filed in a sufficient number of copies. Missing copies shall be provided at the expense of the party concerned.
Article 58
Documentary evidence
CHAPTER II
Oral proceedings and taking of evidence
Article 59
Summons to oral proceedings
Article 60
Taking of evidence by the Office
At least one month’s notice of a summons dispatched to a party to proceedings, witness or expert to give evidence shall be given unless the Office and they agree to a shorter period. The summons shall contain:
an extract from the decision referred to in paragraph 1, indicating in particular the date, time and place of the investigation ordered and setting out the facts regarding which parties to proceedings, witnesses and experts are to be heard;
the names of the parties to proceedings and particulars of the rights which the witnesses or experts may invoke under the provisions of Article 62(2), (3) and (4);
a statement that the party to proceedings, witness or expert may ask to be heard by the competent judicial or other authority in his country of domicile and a request that he inform the Office within a time limit to be fixed by the Office whether he is prepared to appear before it.
Article 61
Commissioning of experts
The mandate of the expert shall contain:
a precise description of his task;
the time limit laid down for the submission of the report;
the names of the parties to the proceedings;
particulars of the rights which he may invoke under Article 62(2), (3) and (4).
Article 62
Costs of taking evidence
The party that requested oral evidence by witnesses or experts shall reimburse the costs of that evidence to the Office, subject to the decision on apportionment and fixing costs pursuant to Article 52.
Article 63
Minutes of oral proceedings and of taking of evidence
CHAPTER III
Service
Article 64
General provisions on service
Service shall be made by one or more of the following means:
by electronic means or any other technical means in accordance with Article 64a;
by post in accordance with Article 65;
by delivery by hand in accordance with Article 66;
by public notice in accordance with Article 67.
Article 64a
Service by electronic means or other technical means
Article 65
Service by post
Article 66
Service by hand delivery
On the premises of the Office, service of a document may be effected by delivery by hand to the addressee, who shall on delivery acknowledge its receipt. Service shall be deemed to have taken place even if the addressee refuses to accept the document or to acknowledge receipt thereof.
Article 66a
Service to procedural representatives
Article 67
Public notice
If the address of the addressee cannot be established, or if service in accordance with Article 64(4) has proved to be impossible even after a second attempt by the Office, service shall be effected by public notice, to be issued in the periodical publication referred to in Article 89 of the basic Regulation. ►M1 The President of the Office shall determine details as to the issue of a public notice and shall determine the period within which the relevant document shall be deemed to have been notified. ◄
Article 68
Irregularities in service
If the Office is unable to prove that a document which has reached the addressee has been duly served, or if provisions relating to its service have not been observed, the document shall be deemed to have been served on the date established by the Office as the date of receipt.
CHAPTER IV
Time limits and interruption of proceedings
Article 69
Computation of time limits
Article 70
Duration of time limits
Where either the basic Regulation or this Regulation specifies a time limit to be determined by the Office, such a time limit shall be not less than one month and not more than three months. In certain special cases, the time limit may be extended by up to six months upon a request presented before the expiry of such time limit.
Article 71
Extension of time limits
As regards documents submitted by electronic means, the first subparagraph shall apply mutatis mutandis where there is an interruption of the connection of the Office or of one of the parties to the proceedings to the electronic means of communication. Parties to the proceedings shall demonstrate the interruption of the connection with the electronic provider.
Article 72
Interruption of proceedings
Proceedings before the Office shall be interrupted:
in the event of the death or legal incapacity of the applicant for, or holder of, a Community plant variety right or of the applicant for an exploitation right to be granted by the Office or of the person entitled to enjoy such exploitation right, or of the procedural representative of any of those parties; or
in the event of a supervening legal impediment to such person’s continuation of proceedings before the Office, due to some action taken against his property.
CHAPTER V
Procedural representatives
Article 73
Designation of a procedural representative
Article 74
Credentials of procedural representatives
The entry of a procedural representative in the Register of Applications for Community Plant Variety Rights shall be deleted:
in the event of the death or legal incapacity of the procedural representative;
where the procedural representative is no longer domiciled or no longer has his seat or establishment within the European Union;
where the procedural representative is no longer appointed by the party to the proceedings and the party has informed the Office accordingly.
CHAPTER VI
Apportionment and determination of costs
Article 75
Awards of costs
Article 76
Determination of costs
The costs essential to proceedings shall cover:
costs of witnesses and experts paid by the Office to the witness or expert concerned;
expenses for travel and subsistence of a party to proceedings and an agent, adviser or advocate duly designated as a procedural representative before the Office, within the relevant scales applicable to witnesses and experts laid down in Annex I;
remuneration of an agent, adviser or advocate duly designated as the procedural representative of a party to proceedings before the Office, within the scales laid down in Annex I.
Article 77
Settlement of costs
In the event of a settlement of costs referred to in Article 85(4) of the basic Regulation, the Office shall confirm such settlement in a communication to the parties to the proceedings. Where such communication confirms also a settlement as to the amount of costs to be paid, a request for the determination of costs shall be inadmissible.
TITLE V
INFORMATION GIVEN TO THE PUBLIC
CHAPTER I
Registers, public inspection and publications
Article 78
Entries related to proceedings and to Community plant variety rights, to be entered in the Registers
The following ‘other particulars’ referred to in Article 87(3) of the basic Regulation shall be entered in the Register of Applications for Community Plant Variety Rights:
date of publication where such publication is a relevant event for the computation of time limits;
any objection, together with its date, the name and address of the objector and those of his procedural representative;
a particular claim regarding priority pursuant to Article 20 of this Regulation (date and place of the earlier application);
any institution of actions in respect of claims referred to in Article 98(4) and Article 99 of the basic Regulation as to entitlement to the Community plant variety right, and the final decision in, or of any other termination of, any such action;
the giving of the right deriving from an application for a Community plant variety right as a security or as the object of any other rights in rem.
The following ‘other particulars’ referred to in Article 87(3) of the basic Regulation shall be entered in the Register of Community Plant Variety Rights, upon request:
the giving of a Community plant variety right as a security or as the object of any other rights in rem; or
any institution of actions in respect of claims referred to in Article 98(1) and (2) and Article 99 of the basic Regulation and relating to the Community plant variety right, and the final decision in, or of any other termination of, any such action.
The President of the Office shall determine the form of Registers. The Registers may be maintained in the form of an electronic database.
Article 79
Entry of transfer of a Community plant variety right
The President of the Office shall determine the form in and the conditions under which those pieces of documentary evidence are to be retained in the files of the Office.
Article 80
Conditions for entries in the Registers
Without prejudice to other provisions of the basic Regulation or of this Regulation, a request for an entry or a deletion of an entry in the Registers may be made by any interested person. The request shall be made in writing, accompanied by supporting documents.
Article 81
Conditions for specific entries in the Registers
Article 82
Public inspection of the Registers
Access to the Registers and the documents held therein shall be granted under the same terms and conditions as apply to the access to documents held by the Office within the meaning of Article 84.
The production and delivery of extracts from the Registers in any form that requires the processing or manipulating of data other than the mere reproduction of a document or parts thereof shall be subject to the payment of a fee.
Article 83
Keeping of the files
Article 84
Access to documents held by the Office
Article 85
Inspection of the growing of the varieties
Article 86
Confidential information
For the purpose of keeping information confidential, the Office shall make available, free of charge, forms to be used by the applicant for a Community plant variety right in order to request the withholding of all data relating to components as referred to in Article 88(3) of the basic Regulation.
Article 87
Official Gazette
Article 88
Publication of applications for exploitation rights to be granted by the Office and decisions thereon
The date of receipt of an application for an exploitation right to be granted by the Office and of delivery of the decision on such application, the names and addresses of the parties to proceedings and the form of order sought, or decided upon, shall be published in the Official Gazette. In the case of a decision to grant a compulsory licence, the contents of such decision shall likewise be published.
Article 89
Publication of appeals and decisions thereon
The date of receipt of a notice of appeal and of delivery of the decision on such appeal, the names and addresses of the parties to the appeal proceedings and the form of order sought, or decided upon, shall be published in the Official Gazette.
CHAPTER II
Administrative and legal cooperation
Article 90
Communication of information
Article 91
Inspection by or via courts or public prosecutors’ offices of the Member States
Article 92
Procedure for letters rogatory
TITLE VI
FINAL PROVISIONS
Article 93
Regulation (EC) No 1239/95 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.
Article 94
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX I
1. The compensation payable to witnesses and experts in respect of travel and subsistence expenses provided for in Article 62(2) shall be calculated as follows:
Travel expenses:
For the outward and return journey between the domicile or seat and the place where oral proceedings are held or where evidence is taken:
the cost of the first-class rail transport including usual transport supplements shall be paid where the total distance by the shortest rail route does not exceed 800 km;
the cost of the tourist-class air transport shall be paid where the total distance by the shortest rail route exceeds 800 km or the shortest route requires a sea-crossing.
Subsistence expenses shall be paid equal to the daily subsistence allowance of officials as laid down in Article 13 of Annex VII to the Staff Regulations of Officials of the European Communities.
When a witness or expert is summoned to proceedings at the Office he shall receive with the summons a travel order containing details of those amounts payable under points 1.1 and 1.2, together with a request form covering an advance on expenses. Before an advance can be paid to a witness or expert his entitlement must be certified by the member of the staff of the Office who ordered the evidence to be taken or, in the case of appeal proceedings, the chairman of the responsible Board of Appeal. The request form must therefore be returned to the Office for certification.
2. The compensation payable to witnesses in respect of loss of earnings provided for in Article 62(3) shall be calculated as follows:
If a witness is required to be absent for a total period of 12 hours or less, the compensation for loss of earnings shall be equal to one sixtieth of the basic monthly salary of an employee of the Office at the lowest step of grade AD 12.
If a witness is required to be absent for a total period of more than 12 hours, he shall be entitled to payment of further compensation equal to one sixtieth of the basic salary referred to in point 2.1 in respect of each further period of 12 hours which is commenced.
3. The fees payable to experts provided for in Article 62(3) shall be determined, case by case, taking into account a proposal by the expert concerned. The Office may decide to invite the parties to proceedings to submit their comments on the amount proposed. ►M1 Fees may be paid to an expert only if he produces evidence by supporting documents that he is not a member of the staff of an Examination Office or a technical qualified body. ◄
4. Payments to witnesses or experts for loss of earnings or fees under points 2 and 3 shall be made following certification of the entitlement of the witness or expert concerned by the member of the staff of the Office who ordered the evidence to be taken or, in the case of the appeal proceedings, the chairman of the responsible Boards of Appeal.
5. The remuneration of an agent, adviser or advocate acting as a representative of a party to proceedings as provided for in Article 76(3) and Article 76(4)(c) shall be borne by the other party to proceedings on the basis of the following maximum rates:
in the case of appeal proceedings except for the taking of evidence which involves the examination of witnesses, opinions by experts or inspection: EUR ►M1 550 ◄ ;
in the case of taking of evidence in appeal proceedings which involves the examination of witnesses, opinions by experts or inspection: EUR ►M1 400 ◄ ;
in the case of proceedings for nullity or cancellation of a Community plant variety right: EUR 450.
ANNEX II
Repealed Regulation with list of its successive amendments
Commission Regulation (EC) No 1239/95 |
(OJ L 121, 1.6.1995, p. 37) |
Commission Regulation (EC) No 448/96 |
(OJ L 62, 13.3.1996, p. 3) |
Commission Regulation (EC) No 2181/2002 |
(OJ L 331, 7.12.2002, p. 14) |
Commission Regulation (EC) No 1002/2005 |
(OJ L 170, 1.7.2005, p. 7) |
Commission Regulation (EC) No 355/2008 |
(OJ L 110, 22.4.2008, p. 3) |
ANNEX III
Correlation table
Regulation (EC) No 1239/95 |
This Regulation |
Articles 1 to 14 |
Articles 1 to 14 |
Article 15(1), (2) and (3) |
Article 15(1), (2) and (3) |
Article 15(4) |
— |
Article 15(5) and (6) |
Article 15(5) and (6) |
Articles 16 to 26 |
Articles 16 to 26 |
Article 27(1), first to fourth indents |
Article 27(1) (a) to (d) |
Article 27(2) and (3) |
Article 27(2) and (3) |
Article 27(4), first to fourth indents |
Article 27(4) (a) to (d) |
Articles 28 to 40 |
Articles 28 to 40 |
Article 41, first sentence |
Article 41(1) |
Article 41(1) to (4) |
Article 41(2) to (5) |
Articles 42 to 64 |
Articles 42 to 64 |
Article 65(2) to (5) |
Article 65(1) to (4) |
Articles 66 to 92 |
Articles 66 to 92 |
Article 93(1) |
Article 15(4) |
Article 93(2) and (3) |
— |
Article 94 |
— |
— |
Article 93 |
Article 95 |
Article 94 |
Annex |
Annex I |
— |
Annexes II and III |
( 1 ) Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ L 106, 17.4.2001, p. 1).
( 2 ) Council Directive 68/193/EEC of 9 April 1968 on the marketing of material for the vegetative propagation of the vine (OJ L 93, 17.4.1968, p. 15).
( 3 ) Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species (OJ L 193, 20.7.2002, p. 1).
( 4 ) Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed (OJ L 193, 20.7.2002, p. 33).
( 5 ) Commission Implementing Directive 2014/97/EU of 15 October 2014 implementing Council Directive 2008/90/EC as regards the registration of suppliers and of varieties and the common list of varieties (OJ L 298, 16.10.2014, p. 16).