Joined Cases T-133/08, T-134/08, T-177/08 and T-242/09

Ralf Schräder

v

Community Plant Variety Office (CPVO)

‛Plant varieties — Decision by the CPVO to adapt, of its own motion, the official description of the variety LEMON SYMPHONY — Application for revocation of the Community plant variety right granted for the variety LEMON SYMPHONY — Application for annulment of the Community plant variety right granted for the variety LEMON SYMPHONY — Application for a Community plant variety right for the variety SUMOST 01 — Summons to attend oral proceedings before the Board of Appeal of the CPVO — Period of notice to attend of at least one month’

Summary — Judgment of the General Court (Second Chamber), 18 September 2012

1. Proceedings — Action before the General Court — Possibility to dismiss an action on the merits without ruling beforehand on the objection of inadmissibility raised by the defendant

2. Agriculture — Uniform legislation — Protection of plant varieties — Decision to grant or refuse protection — Appeals procedure — Jurisdiction of the Board of Appeal — Scope

   (Council Regulation No 2100/94, Arts 7, 10, 20(1)(a), 54 and 55)

3. Agriculture — Uniform legislation — Protection of plant varieties — Initiation of proceedings for annulment of a Community plant variety right on the application of an interested party — Appeal proceedings against a decision of the Community Plant Variety Office — Burden of proof

   (Council Regulation No 2100/94, Arts 20, 76 and 81)

4. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Appeal brought against a decision of the Community Plant Variety Office and referred to the Board of Appeal — Measures of inquiry — Request made by a party — Conditions under which permissible

5. Agriculture — Uniform legislation — Protection of plant varieties — Decision to grant or refuse protection — Appeals procedure — Decision of the Board of Appeal of the Community Plant Variety Office — Judicial review — Limits

   (Council Regulation No 2100/94)

6. Agriculture — Uniform legislation — Protection of plant varieties — Decision to grant or refuse protection — No obligation on the bodies of the Community Plant Variety Office to prove the accuracy of well-known facts — Dispute before the General Court — Review by the Court of Justice of the assessment by the General Court of whether facts were well known — Possible only where the clear sense of the evidence has been distorted

7. European Union law — Principles — Rights of defence — Audi alteram partem rule — Scope — No need to hear the parties on every point of the legal assessment

   (Council Regulation No 2100/94, Art. 75)

8. Proceedings — Oral proceedings — Minutes of the hearing — Essential elements — Record made by the Registrar of statements made by the parties to proceedings

   (Council Regulation No 2100/94; Commission Regulation No 1239/95, Art. 63(1) and (2))

9. Proceedings — Oral proceedings — Notice period

   (Council Regulation No 2100/94; Commission Regulation No 1239/95, Art. 59(1), 2nd sentence)

10. Agriculture — Uniform legislation — Protection of plant varieties — Regulations No 2100/94 and No 1239/95 — Appeals procedure — Failure to observe the minimum notice period — Material procedural defect leading to the annulment of the decision of the Board of Appeal of the Community Plant Variety Office

    (Council Regulation No 2100/94; Commission Regulation No 1239/95, Art. 59)

11. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Action before the EU judicature — Possibility for the General Court to alter the contested decision — Limits

    (Council Regulation No 2100/94, Art. 73(3))

1.  See the text of the decision.

   (see para. 103)

2.  In the course of an appeal before the Board of Appeal of the Community Plant Variety Office (CPVO) against a decision of the CPVO which has refused to declare, on the application of a party, the nullity of a Community plant variety right, it is not for that Board of Appeal to carry out the substantive examination provided for in Article 54 or the technical examination provided for in Article 55 of Regulation No 2100/94 on Community plant variety rights, or even to rule on the lawfulness of such an examination carried out by the CPVO in the context of an application for a Community plant variety right.

   The task of the Board of Appeal is solely to rule, on the application of an interested party, on the lawfulness of a decision of the CPVO adopted under Article 20(1)(a) of that regulation refusing to declare the Community plant variety right null and void on the ground that it has not been ‘established’ by that party that the conditions set out in Article 7 or in Article 10 of that regulation were not satisfied at the time when the right was granted.

   (see paras 126-128)

3.  Since proceedings for the annulment of a Community plant variety right were initiated not by the CPVO of its own motion, but on the application of an interested party, Articles 76 and 81 of Regulation No 2100/94 on Community plant variety rights, read in conjunction with Article 20 thereof, thereby place the onus on that party to prove that the conditions for that declaration of nullity have been met.

   It is not apparent from those provisions of Regulation No 2100/94 that the proceedings before the Community Plant Variety Office (CPVO) are purely investigative in nature. In particular, the ‘principle of examination of its own motion’ set out, with regard to the technical examination, in the first sentence of Article 76 thereof, must be reconciled with the rule, set out in the second sentence of that article, that the CPVO is required to disregard facts or items of evidence which have not been submitted within the period set by it. In so far as those provisions are applicable to the appeal proceedings against a decision of the CPVO taken under Article 20 of that regulation and refusing to declare the nullity of the Community plant variety right granted to a plant variety, it is thus for the party alleging that nullity to put forward the facts and submit the evidence which, in its view, prove that the conditions for the application of Article 20 of the regulation have been met. Where the CPVO does not agree with its analysis, the onus is on that party, at least, to provide specific and substantiated information in support of its submissions. As the case may be, the facts and evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which the Board of Appeal may conclude that the rules on the burden of proof have been satisfied. Moreover, the Board of Appeal is under the obligation to examine carefully and impartially all the relevant elements of the case concerned, ensuring compliance with the general principles of law and with the applicable rules of procedure governing the burden of proof and the taking of evidence.

   (see paras 129, 134-135)

4.  See the text of the decision.

   (see para. 137)

5.  In the course of an application for annulment against a decision of the Board of Appeal of the Community Plant Variety Office, where the applicant is seeking to obtain from the General Court a fresh assessment of the relevant facts and evidence, it is necessary to make a distinction depending on whether or not the findings and factual assessments made by the Board of Appeal are the result of complex assessments in the botanical or genetics field, requiring expert or specific scientific or technical knowledge.

   If that is so, the review which, according to case-law, it is for the General Court to carry out of such findings and factual assessments is that as to manifest errors of assessment. That is true, for example, of the assessment of the distinctive character of a variety, in the light of the criteria set out in Article 7(1) of Regulation No 2100/94 on Community plant variety rights.

   If that is not so, on the other hand, as regards factual assessments which are not of a specific technical or scientific complexity, the General Court carries out a complete or full review of legality.

   (see paras 141-144)

6.  See the text of the decision.

   (see para. 149)

7.  In accordance with Article 75 of Regulation No 2100/94 on Community plant variety rights, decisions of the Community Plant Variety Office (CPVO) must be accompanied by statements of the grounds on which they are based and may 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.

   Observation of the rights of the defence, a general principle of European Union law, compliance with which by the CPVO Article 75 of that regulation seeks to ensure, means, as a rule, that the parties to proceedings are given the opportunity to comment on the facts and documents on which a judicial decision will be based and to discuss the evidence produced and the observations made to the court as well as the pleas in law on which the court intends to base its decision. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be able to debate the matters of fact and of law which will determine the outcome of the proceedings.

   In other words, that right must be construed as meaning that it guarantees that the parties will not be confronted with a completely unexpected judicial decision. None the less, this does not mean that the court must grant the parties the right to be heard on every point of its legal assessment before delivering its judgment.

   (see paras 179-181)

8.  The primary function of the minutes of the hearing and of the taking of evidence which may accompany it, whether this is before the General Court or before a quasi-judicial body, is to record the essentials of the oral proceedings or of the taking of evidence. Thus, they in no way constitute a transcript of the hearing or even an exhaustive account of it, reproducing the detail of the exchange of views to which it gave rise.

   Moreover, it is usual, before the European Union Courts, for the relevant statements made by the parties to proceedings, namely those which may influence the outcome of the proceedings, to be recorded by the Registrar in the minutes of the hearing, either of his own motion or at the request of the judge or a party.

   (see paras 190-191)

9.  In accordance with the second sentence of Article 59(1) of Regulation No 1239/95, establishing implementing rules for the application of Regulation No 2100/94, on Community plant variety rights, as regards proceedings before the Community Plant Variety Office (CPVO), the parties may agree with the CPVO on a notice period shorter than that of one month normally provided for by that provision. It is necessary that the agreement by the parties to a shorter notice period should be definite, since if this is not the case there is a risk that the principle of legal certainty will be infringed. Such an agreement should not therefore simply be assumed or inferred implicitly from a concurrence of certain unclear or ambivalent circumstances.

   The formal serving of a summons is designed to guarantee the proper conduct and fairness of the proceedings, and compliance with a minimum time interval must give the parties the opportunity to prepare appropriately for the oral proceedings. Since the Community legislature has assessed the time interval necessary for that purpose, it is not for the Board of Appeal to call into question that assessment on a case-by-case basis.

   (see paras 221-222, 235)

10.  The failure by the Community Plant Variety Office (CPVO) to observe the minimum notice period of one month, as set out in Article 59 of Regulation No 1239/95, establishing implementing rules for the application of Regulation No 2100/94, on Community plant variety rights, as regards proceedings before the CPVO, constitutes a material procedural defect which is such as to lead to the annulment of a decision of the CPVO, without it being necessary to prove, in addition, that that failure harmed the applicant. Such a material procedural defect is comparable to the infringement of an essential procedural requirement, the failure to observe which results in the nullity of the act irrespective of the actual consequences of the infringement.

    (see para. 237)

11.  The power conferred on the General Court by Article 73(3) of Regulation No 2100/94 on Community plant variety rights to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.

    (see para. 250)

Joined Cases T-133/08, T-134/08, T-177/08 and T-242/09

Ralf Schräder

v

Community Plant Variety Office (CPVO)

‛Plant varieties — Decision by the CPVO to adapt, of its own motion, the official description of the variety LEMON SYMPHONY — Application for revocation of the Community plant variety right granted for the variety LEMON SYMPHONY — Application for annulment of the Community plant variety right granted for the variety LEMON SYMPHONY — Application for a Community plant variety right for the variety SUMOST 01 — Summons to attend oral proceedings before the Board of Appeal of the CPVO — Period of notice to attend of at least one month’

Summary — Judgment of the General Court (Second Chamber), 18 September 2012

1. Proceedings — Action before the General Court — Possibility to dismiss an action on the merits without ruling beforehand on the objection of inadmissibility raised by the defendant

2. Agriculture — Uniform legislation — Protection of plant varieties — Decision to grant or refuse protection — Appeals procedure — Jurisdiction of the Board of Appeal — Scope

   (Council Regulation No 2100/94, Arts 7, 10, 20(1)(a), 54 and 55)

3. Agriculture — Uniform legislation — Protection of plant varieties — Initiation of proceedings for annulment of a Community plant variety right on the application of an interested party — Appeal proceedings against a decision of the Community Plant Variety Office — Burden of proof

   (Council Regulation No 2100/94, Arts 20, 76 and 81)

4. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Appeal brought against a decision of the Community Plant Variety Office and referred to the Board of Appeal — Measures of inquiry — Request made by a party — Conditions under which permissible

5. Agriculture — Uniform legislation — Protection of plant varieties — Decision to grant or refuse protection — Appeals procedure — Decision of the Board of Appeal of the Community Plant Variety Office — Judicial review — Limits

   (Council Regulation No 2100/94)

6. Agriculture — Uniform legislation — Protection of plant varieties — Decision to grant or refuse protection — No obligation on the bodies of the Community Plant Variety Office to prove the accuracy of well-known facts — Dispute before the General Court — Review by the Court of Justice of the assessment by the General Court of whether facts were well known — Possible only where the clear sense of the evidence has been distorted

7. European Union law — Principles — Rights of defence — Audi alteram partem rule — Scope — No need to hear the parties on every point of the legal assessment

   (Council Regulation No 2100/94, Art. 75)

8. Proceedings — Oral proceedings — Minutes of the hearing — Essential elements — Record made by the Registrar of statements made by the parties to proceedings

   (Council Regulation No 2100/94; Commission Regulation No 1239/95, Art. 63(1) and (2))

9. Proceedings — Oral proceedings — Notice period

   (Council Regulation No 2100/94; Commission Regulation No 1239/95, Art. 59(1), 2nd sentence)

10. Agriculture — Uniform legislation — Protection of plant varieties — Regulations No 2100/94 and No 1239/95 — Appeals procedure — Failure to observe the minimum notice period — Material procedural defect leading to the annulment of the decision of the Board of Appeal of the Community Plant Variety Office

    (Council Regulation No 2100/94; Commission Regulation No 1239/95, Art. 59)

11. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Action before the EU judicature — Possibility for the General Court to alter the contested decision — Limits

    (Council Regulation No 2100/94, Art. 73(3))

1.  See the text of the decision.

   (see para. 103)

2.  In the course of an appeal before the Board of Appeal of the Community Plant Variety Office (CPVO) against a decision of the CPVO which has refused to declare, on the application of a party, the nullity of a Community plant variety right, it is not for that Board of Appeal to carry out the substantive examination provided for in Article 54 or the technical examination provided for in Article 55 of Regulation No 2100/94 on Community plant variety rights, or even to rule on the lawfulness of such an examination carried out by the CPVO in the context of an application for a Community plant variety right.

   The task of the Board of Appeal is solely to rule, on the application of an interested party, on the lawfulness of a decision of the CPVO adopted under Article 20(1)(a) of that regulation refusing to declare the Community plant variety right null and void on the ground that it has not been ‘established’ by that party that the conditions set out in Article 7 or in Article 10 of that regulation were not satisfied at the time when the right was granted.

   (see paras 126-128)

3.  Since proceedings for the annulment of a Community plant variety right were initiated not by the CPVO of its own motion, but on the application of an interested party, Articles 76 and 81 of Regulation No 2100/94 on Community plant variety rights, read in conjunction with Article 20 thereof, thereby place the onus on that party to prove that the conditions for that declaration of nullity have been met.

   It is not apparent from those provisions of Regulation No 2100/94 that the proceedings before the Community Plant Variety Office (CPVO) are purely investigative in nature. In particular, the ‘principle of examination of its own motion’ set out, with regard to the technical examination, in the first sentence of Article 76 thereof, must be reconciled with the rule, set out in the second sentence of that article, that the CPVO is required to disregard facts or items of evidence which have not been submitted within the period set by it. In so far as those provisions are applicable to the appeal proceedings against a decision of the CPVO taken under Article 20 of that regulation and refusing to declare the nullity of the Community plant variety right granted to a plant variety, it is thus for the party alleging that nullity to put forward the facts and submit the evidence which, in its view, prove that the conditions for the application of Article 20 of the regulation have been met. Where the CPVO does not agree with its analysis, the onus is on that party, at least, to provide specific and substantiated information in support of its submissions. As the case may be, the facts and evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which the Board of Appeal may conclude that the rules on the burden of proof have been satisfied. Moreover, the Board of Appeal is under the obligation to examine carefully and impartially all the relevant elements of the case concerned, ensuring compliance with the general principles of law and with the applicable rules of procedure governing the burden of proof and the taking of evidence.

   (see paras 129, 134-135)

4.  See the text of the decision.

   (see para. 137)

5.  In the course of an application for annulment against a decision of the Board of Appeal of the Community Plant Variety Office, where the applicant is seeking to obtain from the General Court a fresh assessment of the relevant facts and evidence, it is necessary to make a distinction depending on whether or not the findings and factual assessments made by the Board of Appeal are the result of complex assessments in the botanical or genetics field, requiring expert or specific scientific or technical knowledge.

   If that is so, the review which, according to case-law, it is for the General Court to carry out of such findings and factual assessments is that as to manifest errors of assessment. That is true, for example, of the assessment of the distinctive character of a variety, in the light of the criteria set out in Article 7(1) of Regulation No 2100/94 on Community plant variety rights.

   If that is not so, on the other hand, as regards factual assessments which are not of a specific technical or scientific complexity, the General Court carries out a complete or full review of legality.

   (see paras 141-144)

6.  See the text of the decision.

   (see para. 149)

7.  In accordance with Article 75 of Regulation No 2100/94 on Community plant variety rights, decisions of the Community Plant Variety Office (CPVO) must be accompanied by statements of the grounds on which they are based and may 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.

   Observation of the rights of the defence, a general principle of European Union law, compliance with which by the CPVO Article 75 of that regulation seeks to ensure, means, as a rule, that the parties to proceedings are given the opportunity to comment on the facts and documents on which a judicial decision will be based and to discuss the evidence produced and the observations made to the court as well as the pleas in law on which the court intends to base its decision. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be able to debate the matters of fact and of law which will determine the outcome of the proceedings.

   In other words, that right must be construed as meaning that it guarantees that the parties will not be confronted with a completely unexpected judicial decision. None the less, this does not mean that the court must grant the parties the right to be heard on every point of its legal assessment before delivering its judgment.

   (see paras 179-181)

8.  The primary function of the minutes of the hearing and of the taking of evidence which may accompany it, whether this is before the General Court or before a quasi-judicial body, is to record the essentials of the oral proceedings or of the taking of evidence. Thus, they in no way constitute a transcript of the hearing or even an exhaustive account of it, reproducing the detail of the exchange of views to which it gave rise.

   Moreover, it is usual, before the European Union Courts, for the relevant statements made by the parties to proceedings, namely those which may influence the outcome of the proceedings, to be recorded by the Registrar in the minutes of the hearing, either of his own motion or at the request of the judge or a party.

   (see paras 190-191)

9.  In accordance with the second sentence of Article 59(1) of Regulation No 1239/95, establishing implementing rules for the application of Regulation No 2100/94, on Community plant variety rights, as regards proceedings before the Community Plant Variety Office (CPVO), the parties may agree with the CPVO on a notice period shorter than that of one month normally provided for by that provision. It is necessary that the agreement by the parties to a shorter notice period should be definite, since if this is not the case there is a risk that the principle of legal certainty will be infringed. Such an agreement should not therefore simply be assumed or inferred implicitly from a concurrence of certain unclear or ambivalent circumstances.

   The formal serving of a summons is designed to guarantee the proper conduct and fairness of the proceedings, and compliance with a minimum time interval must give the parties the opportunity to prepare appropriately for the oral proceedings. Since the Community legislature has assessed the time interval necessary for that purpose, it is not for the Board of Appeal to call into question that assessment on a case-by-case basis.

   (see paras 221-222, 235)

10.  The failure by the Community Plant Variety Office (CPVO) to observe the minimum notice period of one month, as set out in Article 59 of Regulation No 1239/95, establishing implementing rules for the application of Regulation No 2100/94, on Community plant variety rights, as regards proceedings before the CPVO, constitutes a material procedural defect which is such as to lead to the annulment of a decision of the CPVO, without it being necessary to prove, in addition, that that failure harmed the applicant. Such a material procedural defect is comparable to the infringement of an essential procedural requirement, the failure to observe which results in the nullity of the act irrespective of the actual consequences of the infringement.

    (see para. 237)

11.  The power conferred on the General Court by Article 73(3) of Regulation No 2100/94 on Community plant variety rights to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.

    (see para. 250)