Case T‑2/23

Romagnoli Fratelli SpA

v

Community Plant Variety Office (CPVO)

Judgment of the General Court (Third Chamber) of 17 April 2024

(Plant varieties – Grant of a Community plant variety right for the potato variety Melrose – Failure to pay the annual fee on time – Cancellation of right – Application for restitutio in integrum – Conditions for notification of decisions and communications of the CPVO)

1. Action for annulment – Actionable measures – Meaning – Acts producing binding legal effects – Decision of the Community Plant Variety Office (CPVO) dismissing an application for restitutio in integrum – Included

   (Art. 263, fourth and fifth paras, TFEU; Council Regulation No 2100/94, Art. 80)

   (see paragraphs 18, 19)

2. EU agencies – Community Plant Variety Office (CPVO) – Appeals procedure – Possibility for the Office to exclude the jurisdiction of both the Board of Appeal and the General Court to rule on the decisions taken by the CPVO in the wake of the filing of an application for restitutio in integrum – No such possibility

   (Arts 2 and 19 TEU; Art. 263, fourth and fifth paras, TFEU; Council Regulation No 2100/94, Arts 80 and 81(1))

   (see paragraphs 21, 22, 24-29)

3. Agriculture – Uniform legislation – Protection of plant varieties – Procedural provisions – Restitutio in integrum – Conditions under which applicable – Restrictive interpretation

   (Council Regulation No 2100/94, Art. 80(1))

   (see paragraphs 37, 38)

4. Agriculture – Uniform legislation – Protection of plant varieties – Procedural provisions – Notification – Notification via a user area – Conditions – Activation by the user of the option enabling the Community Plant Variety Office (CPVO) to communicate electronically – Whether permissible

   (Council Regulation No 2100/94, Art. 79; Commission Regulation No 874/2009, Arts 64(4) and 65)

   (see paragraphs 62-70, 73)

Résumé

By this judgment, the General Court dismisses the action for annulment brought by Romagnoli Fratelli SpA (‘the applicant’) against the decision of the Community Plant Variety Office (CPVO) (‘the contested decision’). After having examined whether a legal remedy against the decisions taken by the CPVO exists in the wake of the filing of an application for restitutio in integrum, the Court rules, for the first time, on the lawfulness of the user area, known as ‘MyPVR’, as an official notification of the CPVO.

In December 2009, the applicant applied to the CPVO, pursuant to Regulation No 2100/94, ( 1 ) for a Community plant variety right for the potato variety Melrose. That right having been granted, the CPVO sent the applicant, in October 2021, a debit note relating to payment of the annual fee for the Community plant variety right at issue, via its MyPVR user area.

That debit note having remained unpaid, a formal reminder was sent to the applicant by the CPVO in January 2022, again via the MyPVR user area, inviting it to pay the amount due in respect of the annual fee within one month. Faced with inactivity in the applicant’s user area, the CPVO sent it a final reminder in February 2022 by email. In March 2022, as the annual fee had not been paid within the period prescribed, the CPVO cancelled the Community plant variety right.

Following that cancellation, the applicant filed an application for restitutio in integrum, pursuant to Article 80 of Regulation No 2100/94, and paid the annual fee that had not yet been paid. By the contested decision, the CPVO did not grant the applicant’s application on the ground that it did not satisfy the conditions laid down in Article 80(1) and (2) of Regulation No 2100/94.

Findings of the Court

In the first place, the Court examines the plea of inadmissibility raised by the CPVO contending that the action is inadmissible, in the light of several provisions ( 2 ) relating to the judicial system of the European Union. The CPVO contends that the fifth paragraph of Article 263 TFEU ( 3 ) legitimises its ability to rule on applications for restitutio in integrum without the possibility of an appeal before the Board of Appeal of the CPVO or before the Court, since such an action is not provided for either by Regulation No 2100/94 or by Regulation No 874/2009, ( 4 ) which constitute the ‘specific conditions and arrangements’ within the meaning of the fifth paragraph of that article. Therefore, it submits that the contested decision cannot be the subject of an action before the Court under the fourth paragraph of Article 263 TFEU.

In that regard, the Court finds that, although those ‘specific conditions and arrangements’ do indeed allow a body, office or agency of the European Union to draw up internal terms and conditions which are prerequisites to legal proceedings and govern, inter alia, the operation of a self-monitoring mechanism or the course of an out-of-court settlement, those conditions and arrangements cannot be interpreted as allowing an institution of the European Union to shield disputes involving the interpretation or application of EU law from the jurisdiction of the EU courts.

Moreover, it follows from Article 81(1) of Regulation No 2100/94 that, in the absence of procedural provisions in that regulation or in provisions adopted pursuant to that regulation, the CPVO is to apply the principles of procedural law which are generally recognised in the Member States. Accordingly, even though Regulation No 2100/94 does not explicitly provide for a remedy before the Board of Appeal of the CPVO or directly before the Court for the decisions taken by the CPVO in the wake of an application for restitutio in integrum, a remedy nevertheless exists by virtue of Article 81(1) of that regulation and of the fourth paragraph of Article 263 TFEU. Consequently, the Court rejects the CPVO’s plea of inadmissibility.

In the second place, the Court examines the lawfulness of the MyPVR user area as a means of official notification of documents and decisions sent by the CPVO. First, the Court notes, on the one hand, that communications and notifications from the CPVO from which a time limit is reckoned may be served by electronic means and, on the other hand, that the details of that service are to be determined by the President of the CPVO. ( 5 )

Second, the Court, relying on the decision of the President of the CPVO, finds that that communication by electronic means using the MyPVR user area may be made only if the user has opted for that communication. Thus, the CPVO will validly notify him or her of decisions, communications and other documents electronically via his or her user area. ( 6 ) In that regard, the Court notes that the parties do not dispute that the applicant had opted for communication by electronic means via MyPVR and that it had accepted version 3.0 of the user area’s terms and conditions. There can therefore be no doubt that the applicant agreed to receive communications and notifications from the CPVO via its MyPVR user area.

Consequently, the Court rejects the complaint relating to the unlawfulness of the MyPVR user area as an official channel of notification, given that the option enabling the CPVO to communicate with the user electronically was activated by it.

( 1 ) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).

( 2 ) Articles 2 and 19 TEU, Article 256(1), first sentence, TFEU and Article 263, fourth and fifth paragraphs, TFEU.

( 3 ) The fifth paragraph of Article 263 TFEU provides: ‘Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.’

( 4 ) Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the [CPVO] (OJ 2009 L 251, p. 3).

( 5 ) See Article 79 of Regulation No 2100/94, Article 64(4) of Regulation No 874/2009 and Decision of 20 December 2016 of the President of the CPVO concerning electronic communication with and by the CPVO (‘the decision of the President of the CPVO’).

( 6 ) That detail is provided for in version 3.0 of MyPVR’s general terms and conditions of use, which reaffirm the requirement whereby the use of MyPVR as an official channel of notification is subject to the condition that the user has activated the option enabling the CPVO to communicate with him or her electronically.