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Document 62012CJ0546
Judgment of the Court (First Chamber) of 21 May 2015.#Ralf Schräder v Community Plant Variety Office.#Appeals — Community plant variety rights — Community Plant Variety Office (CPVO) — Regulation (EC) No 2100/94 — Articles 20 and 76 –Regulation (EC) No 874/2009 — Article 51 — Application to initiate nullity proceedings in respect of Community plant variety rights — Principle of examination by the CPVO of its own motion — Proceedings before the Board of Appeal of the CPVO — Substantial evidence.#Case C-546/12 P.
Judgment of the Court - 21 May 2015
Schräder v CPVO
Case C-546/12 P
Judgment of the Court - 21 May 2015
Schräder v CPVO
Case C-546/12 P
Court reports – general
ECLI identifier: ECLI:EU:C:2015:332
JUDGMENT OF THE COURT (First Chamber)
21 May 2015 ( *1 )
‛Appeals — Community plant variety rights — Community Plant Variety Office (CPVO) — Regulation (EC) No 2100/94 — Articles 20 and 76 — Regulation (EC) No 874/2009 — Article 51 — Application to initiate nullity proceedings in respect of Community plant variety rights — Principle of examination by the CPVO of its own motion — Proceedings before the Board of Appeal of the CPVO — Substantial evidence’
In Case C‑546/12 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 November 2012,
Ralf Schräder, residing in Lüdinghausen (Germany), represented by T. Leidereiter, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
Community Plant Variety Office (CPVO), represented by M. Ekvad, acting as Agent, and A. von Mühlendahl, Rechtsanwalt,
defendant at first instance,
Jørn Hansson, represented by G. Würtenberger, Rechtsanwalt,
intervener at first instance,
THE COURT (First Chamber),
composed of A. Tizzano, President of the Chamber, S. Rodin, E. Levits (Rapporteur), M. Berger and F. Biltgen, Judges,
Advocate General: E. Sharpston,
Registrar: K. Malacek, Administrator,
having regard to the written procedure and further to the hearing on 3 April 2014,
after hearing the Opinion of the Advocate General at the sitting on 13 November 2014,
gives the following
Judgment
1 |
By his appeal, the appellant seeks to have set aside the judgment of the General Court of the European Union in Schräder v CPVO — Hansson (LEMON SYMPHONY), T‑133/08, T‑134/08, T‑177/08 and T‑242/09, EU:T:2012:430 (‘the judgment under appeal’), in which the General Court dismissed his action brought against the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 23 January 2009 (Case A 010/2007), concerning an application for annulment of the Community plant variety right granted for the variety LEMON SYMPHONY (‘the decision at issue’). |
Legal context
2 |
Article 6 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1), as amended by Council Regulation (EC) No 2506/95 of 25 October 1995 (OJ 1995 L 258, p. 3; ‘Regulation No 2100/94’), provides that in order to obtain Community plant variety rights, a variety must be, inter alia, distinct and new. |
3 |
Article 7 of that regulation provides: ‘1. A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application determined pursuant to Article 51. ...’ |
4 |
Article 10 of Regulation No 2100/94 lays down the criteria governing the condition that a variety for which Community plant variety rights are being sought must be new. |
5 |
Article 20 of that regulation, on the nullity of Community plant variety rights, provides: ‘1. The [CPVO] shall declare the Community plant variety right null and void if it is established:
2. Where the Community plant variety right is declared null and void, it shall be deemed not to have had, as from the outset, the effects specified in this Regulation.’ |
6 |
Articles 54 and 55 of that regulation describe the substantive examination and the technical examination which a plant variety must undergo in order to obtain Community plant variety rights. |
7 |
As regards the rules governing proceedings before the CPVO, Article 75 of that regulation states: ‘Decisions of the [CPVO] shall state the reasons 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.’ |
8 |
Article 76 of Regulation No 2100/94 provides: ‘In proceedings before it the [CPVO] 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 [CPVO].’ |
9 |
Article 81 of Regulation No 2100/94, relating to general principles, is drafted as follows: ‘1. In the absence of procedural provisions in this Regulation or in provisions adopted pursuant to this Regulation, the [CPVO] shall apply the principles of procedural law which are generally recognized in the Member States. ...’ |
10 |
Commission Regulation (EC) No 874/2009 of 17 September 2009 lays down implementing rules for the application of Regulation No 2100/94 as regards proceedings before the CPVO (OJ 2009 L 251, p. 3). |
11 |
As regards appeals against the decisions of the CPVO, Article 51 of that regulation provides: ‘Unless otherwise provided, the provisions relating to proceedings before [the CPVO] shall apply to appeal proceedings mutatis mutandis; parties to proceedings shall in that regard be treated as parties to appeal proceedings.’ |
12 |
Article 63 of that regulation provides: ‘1. Minutes of oral proceedings and of the taking of evidence shall record the essentials of the oral proceedings or of the taking of evidence, the relevant statements made by the parties to proceedings, the testimony of the parties to proceedings, witnesses or experts and the result of any inspection. 2. The minutes of the testimony of a witness, expert or party to proceedings shall be read out or submitted to him so that he may examine them. It shall be noted in the minutes that this formality has been carried out and that the person who gave the testimony approved the minutes. Where his/her approval is not given, his/her objections shall be noted. 3. The minutes shall be signed by the employee who drew them up and by the employee who conducted the oral proceedings or taking of evidence. 4. The parties to proceedings shall be provided with a copy and, where appropriate, a translation of the minutes.’ |
Background to the dispute and the decision at issue
13 |
The General Court set out the facts giving rise to the dispute as follows:
...
...
...
...
...
…
Proceedings before the Board of Appeal of the CPVO in Cases A 005/2007, A 006/2007 and A 007/2007
...
...
...
... Proceedings before the Board of Appeal of the CPVO in Case A 010/2007
...
|
Procedure before the General Court and the judgment under appeal
14 |
By application lodged on 24 June 2009, the appellant brought an action against the decision at issue. |
15 |
By order of 15 June 2010, the President of the General Court decided to join the actions brought by the appellant against Decisions A 007/2007 (Case T‑133/08), A 006/2007 (Case T‑134/08), A 005/2007 (Case T‑177/08) and A-010/2007 (Case T‑242/09) for the purposes of the oral procedure and the judgment. |
Case T‑242/09
16 |
In support of his action in Case T‑242/09, the appellant relied on four pleas in law for the annulment. |
17 |
As regards the first plea alleging infringement of Articles 76 and 81 of Regulation No 2100/94, the General Court held, in paragraph 126 of the judgment under appeal, that those provisions are inapplicable to nullity proceedings in respect of a Community plant variety right under Article 20 of that regulation, having regard to the actual wording of Article 76. It concluded in paragraphs 128 and 129 of that judgment that the burden of proof that a plant variety does not satisfy the conditions for obtaining a Community plant variety right falls on the party challenging that right. |
18 |
Holding that the system established by Regulation No 2100/94 is consistent with the provisions in force in relation to Community designs and with general principles of law, the General Court rejected that argument as irrelevant. |
19 |
The General Court added, however, in paragraph 134 of the judgment under appeal, that in any event proceedings before the CPVO are not purely inquisitorial in nature, since the parties must plead in due time the facts which they want the CPVO to determine and adduce the evidence which they wish to be admitted by that office. |
20 |
On that basis, the General Court carried out an examination of the arguments advanced by the appellant in paragraphs 135 to 170 of the judgment under appeal. |
21 |
With regard to the refusal by the CPVO to grant the request made by the appellant to adopt measures of inquiry, the General Court, applying by analogy the ruling given in the judgment in ILFO v High Authority, 51/65, EU:C:1966:21, found in paragraph 138 of the judgment under appeal, that at no point in the proceedings before the CPVO had the appellant advanced any evidence or information whatsoever to support his case. It concluded that there was no infringement of the rules on the burden of proof and the taking of evidence and considered that the appellant was in fact seeking to obtain from the General Court a fresh assessment of the relevant facts and evidence. |
22 |
Therefore, the General Court made a distinction between whether or not the factual findings and assessments made by the Board of Appeal are the result of complex assessments, bearing in mind that, as regards complex assessments requiring expert or scientific knowledge, the review carried out by the General Court is limited to ascertaining whether there has been a manifest error. |
23 |
As regards, first, the issue of the nature of the plant material used for the technical examination of the variety LEMON SYMPHONY in 1997, the General Court found, in paragraph 149 of the judgment under appeal, that the Board of Appeal had considered that it was well-known that the practice of taking cuttings was commonplace. In that respect, it applied by analogy the case-law relating to the Office for Harmonisation in the Internal Market (OHIM), in accordance with which OHIM’s Boards of Appeal are not required to prove, in their decisions, the accuracy of well-known facts. |
24 |
The General Court considered that the question of the effect of growth regulators on plant samples supplied for the technical examination of the variety LEMON SYMPHONY concerned complex botanical assessments. It noted in paragraph 157 of the judgment under appeal that the appellant did not adduce any evidence that made it possible to identify a manifest error of assessment. |
25 |
Secondly, with regard to the appellant’s arguments relating to the adaptation of the original description of the variety LEMON SYMPHONY in 2006, concerning the ‘attitude of shoots’ characteristic, the Court found, in paragraph 161 of the judgment under appeal, that the appellant had failed to demonstrate that that characteristic was decisive for the grant of a Community plant variety right for that plant variety. |
26 |
Moreover, the General Court made it clear, in paragraph 166 of the judgment under appeal, that the ‘attitude of shoots’ characteristic, the levels of expression of which run from ‘erect’ to ‘drooping’, was not absolute and could, depending on the case, be the subject of a relative and comparative assessment between varieties of the same species. |
27 |
Therefore, the General Court rejected the first plea in law as being unfounded in part and ineffective in part. |
28 |
As regards the second plea alleging infringement of Articles 7 and 20 of Regulation No 2100/94, that was rejected by the General Court in the light of the evidence adduced in the examination of the first plea relating to the chemical and mechanical treatment of the material used for the technical examination in 1997 and the use of material which grew from cuttings. |
29 |
As regards the third plea alleging infringement of Article 75 of Regulation No 2100/94, the General Court stated, in paragraphs 181 and 182 of the judgment under appeal, that the right to be heard did not mean that a judge had to hear the parties on every point of his legal assessment. In particular, in the examination of the first plea, the General Court found that the use of cuttings for a technical examination is a common practice known to the appellant. |
30 |
As regards the fourth plea alleging infringement of Article 63 of Regulation No 874/2009, the General Court held, in essence, that the Board of Appeal had not committed any procedural error. |
31 |
The General Court therefore dismissed the entire action. |
Cases T‑133/08, T‑134/08 and T‑177/08
32 |
With regard to the actions in Cases T‑133/08, T‑134/08 and T‑177/08, the General Court found, in paragraph 217 of the judgment under appeal, that the minimum notice period of one month for the hearing on 4 December 2007 before the Board of Appeal was not observed with regard to the appellant. |
33 |
The General Court concluded in paragraph 237 of the judgment under appeal that there was a material procedural defect leading to the annulment of the three contested decisions in Cases T‑133/08, T‑134/08 and T‑177/08. However, it refused the request for variation of the decision on the adaptation of the description. |
The appeal
34 |
In support of his appeal, the appellant relies on five grounds which are subdivided into different arguments. |
35 |
On the basis of the first and second grounds of appeal, the appellant, in essence, alleges that the General Court infringed the rules on the burden of proof and the taking of evidence, and the principle of the examination of the facts by the CPVO of its own motion. By his third and fourth grounds, the appellant claims that there has been an infringement of the duty to review legality and a failure to state reasons in the judgment under appeal. Under the fifth and sixth grounds, the appellant, in essence, alleges that the General Court did not safeguard his right to be heard and did not carry out a full review of the legality of the decision at issue. |
The first ground of appeal
Arguments of the parties
36 |
Under his first ground of appeal, the appellant alleges, in essence, that the General Court erred in law in holding that the Board of Appeal could not act of its own motion, and that it infringed his right to an effective remedy and the principle of good administration. |
37 |
In the first place, the appellant criticises the General Court for having held, in paragraph 126 of the judgment under appeal, that Article 76 of Regulation No 2100/94 did not apply to proceedings before the Board of Appeal and, consequently, for having infringed Article 51 of Regulation No 874/2009. |
38 |
In the second place, the finding in paragraph 129 of the judgment under appeal that nullity proceedings before the CPVO and its Board of Appeal are adversarial proceedings is not compatible with the wording of Article 20 of Regulation 2100/94. Their inquisitorial nature is also borne out by a comparison with the corresponding provisions on the Community trade mark and Community designs. |
39 |
In the third place, the General Court distorted the appellant’s arguments at first instance in paragraph 133 of the judgment under appeal. |
40 |
In the fourth place, the General Court infringed the principles of good administration and the right to an effective remedy by refusing to examine the evidence which he adduced before the Board of Appeal. |
41 |
The CPVO sets out the specific characteristics of the proceedings before it. In particular, it states that nullity proceedings brought on the basis of Article 20 of Regulation No 2100/94 are exclusively covered by examination of its own motion. Therefore, there is no party to those proceedings, and the CPVO is required to examine all the relevant facts objectively. Mr Hansson argues that the CPVO has a broad discretion with regard to the assessment of evidence submitted by a third party in order to justify the initiation of such proceedings. |
42 |
In the present case, the CPVO applied those principles and refused to initiate the nullity proceedings requested by the appellant. |
43 |
Beyond that, the CPVO and Hansson contend that the appellant’s arguments are at best irrelevant, and at the very least inadmissible, in that they seek to challenge the General Court’s assessment of the facts. |
Findings of the Court
44 |
Since the appellant disputes the approach adopted by the General Court concerning the taking of evidence and the burden of proof in relation to the proceedings before the Board of Appeal, it must be ascertained, first of all, whether the Court erred in law in that context. |
45 |
In that regard, it must be noted first, as was observed by the General Court in paragraph 126 of the judgment under appeal, that the wording of Article 76 of Regulation No 2100/94 limits the application of the principle that the CPVO is to examine of its own motion the facts to those which are the subject of examination under Articles 54 and 55 of that regulation. |
46 |
Secondly, under Article 51 of Regulation No 874/2009, the provisions relating to proceedings before the CPVO apply mutatis mutandis to appeal proceedings. Thus, the principle of examination of the facts by the CPVO of its own motion also applies in proceedings before the Board of Appeal. |
47 |
The General Court, consequently, erred in law in holding that the principle of examination of the facts by the CPVO of its own motion does not apply to proceedings before the Board of Appeal. |
48 |
That error of law, and the arguments set out in paragraph 135 of the judgment under appeal which possibly gave rise to that error, do not, however, in themselves lead to the setting aside of the judgment under appeal given that the General Court, none the less, checked in paragraph 136 et seq. of the judgment under appeal whether the evidence adduced by the appellant before the Board of Appeal meets the criteria pertaining to the principle of the examination of the facts of its own motion. |
49 |
Thus it is necessary to ascertain, next, whether the General Court did not commit an error of law in that regard. |
50 |
To that end, it should be noted that the proceedings which led to the decision at issue are proceedings before the Board of Appeal before which there has been brought an appeal against a decision of the CPVO refusing to annul a Community plant variety right pursuant to Article 20(1) of Regulation No 2100/94. |
51 |
Under that provision, the CPVO must declare the Community plant variety right null and void if it has been established that the conditions laid down in Articles 7 and 10 of Regulation No 2100/94 have not been met on the date the right was granted. |
52 |
In that regard, the conditions relating, in particular, to distinction and novelty are, under Article 6 of the regulation, a prerequisite for the grant of a Community plant variety right. Therefore, in the absence of those conditions, the right granted is unlawful, and it is in the public interest that it be declared null and void. |
53 |
It is true that a declaration annulling a right improperly granted can also be made in the interests of a third party, especially where that party made an application for a plant variety right which was refused because the candidate variety was not distinguishable from the improperly protected variety. |
54 |
However, that cannot justify allowing a third party to apply, in all circumstances and without specific reasons, for the annulment of that protection after the proceedings granting that right, and after the expiry of the time-limits laid down in Article 59 of Regulation No 2100/94 for third parties to lodge their objections. |
55 |
In that regard, it must be noted that, in the procedure for granting protection, the candidate plant variety, under Articles 54 and 55 of that regulation, must undergo a substantive examination and a thorough and complex technical examination. |
56 |
Thus, the CPVO has a wide discretion concerning annulment of a plant variety right for the purposes of Article 20 of Regulation No 2100/94, in so far as the protected variety underwent the examination set out in the previous paragraph. Therefore, only where there are serious doubts that the conditions laid down in Articles 7 or 10 of that regulation had been met on the date of the examination provided for under Articles 54 and 55 of that regulation can a re-examination of the protected variety by way of nullity proceedings under Article 20 of Regulation No 2100/94 be justified. |
57 |
In that context, a third party seeking annulment of a plant variety right must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the grant of a plant variety right following the examination provided for in Articles 54 and 55 of that regulation. |
58 |
Consequently, in an action brought against the decision at issue, it is for the appellant to demonstrate, on the facts and evidence relating to the substantive and technical examination which he adduced before the CPVO, that the CPVO was required to carry out the review provided for under Article 20(1)(a) of Regulation No 2100/94. |
59 |
It is in light of those factors that the Court must, finally, examine whether the General Court did not err in law in its review of the application of the principle of ‘examination of the facts of its own motion’ by the Board of Appeal. |
60 |
As regards evidence which the appellant adduced to justify the annulment of the protection previously granted, the General Court found, first, in paragraph 138 of the judgment under appeal that the appellant did not advance any evidence whatsoever, or the slightest information capable of constituting prima facie evidence to support his claim that the chemical and mechanical treatment or the taking of cuttings such as that carried out in the present case might have distorted the results of the technical examination of the variety LEMON SYMPHONY in 1997. |
61 |
Secondly, in paragraph 157 of the judgment under appeal, the General Court observed that at no point in the proceedings did the appellant produce any specific information or evidence whatsoever capable of substantiating his submissions, inter alia, as to the lasting effect of the growth regulators. |
62 |
Finally, as regards the arguments alleging infringement of the principle of good administration and of the right to an effective remedy, it appears from the documents in the file that the appellant argued in support of his action before the Board of Appeal that the plant material, on which the technical examination of the variety LEMON SYMPHONY had been carried out in 1997, was deficient on the grounds that (i) the plants used for the examination had undergone mechanical and chemical treatment, and (ii) they were plant cuttings sent by Mr Hansson. |
63 |
In view of those findings, and bearing in mind the principles set out in paragraphs 57 and 58 above, the General Court did not err in law in the taking of evidence when it found that the appellant had not adduced, to the requisite legal standard, the facts and evidence which make it possible to establish that the condition laid down in Article 7 of Regulation No 2100/94 had not been fulfilled in the technical examination of the variety LEMON SYMPHONY, which would have justified a declaration of nullity for the purposes of Article 20(1) of that regulation. |
64 |
Consequently, the arguments alleging infringement of the principle of good administration and of the right to an effective remedy cannot succeed. |
65 |
It follows from the foregoing that the first ground of appeal must be rejected. |
The second ground of appeal
Arguments of the parties
66 |
On the basis of his second ground of appeal, the appellant alleges, in essence, that the General Court, in paragraphs 136 to 138 of the judgment under appeal, infringed the rules on the burden of proof and the taking of evidence. |
67 |
By the first argument under that ground of appeal, the appellant claims that the General Court wrongly applied to the requests for the adoption of measures of inquiry, submitted to the CPVO, the case-law of the Court of Justice arising out of the judgment in ILFO v High Authority, 51/65, EU:C:1966:21, according to which a request for the adoption of measures of inquiry made by a party cannot be accepted if that party offers no evidence whatsoever to justify such measures. |
68 |
According to the appellant, in doing so, the General Court committed four errors of law. In the first place, the principles of the case-law cited are not compatible with Article 76 of Regulation No 2100/94. In the second place, the General Court failed to comply with its obligation to state reasons, in that it did not explain the appropriateness of applying that case-law. In the third place, it infringed the right to fair process by introducing a condition relating to the adoption of a measure of inquiry which was not mentioned at any stage of the proceedings. In the fourth place, it wrongly reproduced the case-law cited, as that case-law does not mention the need for prima facie evidence for the adoption of a measure of inquiry. |
69 |
By his second argument, the appellant claims that, even assuming that it was for him to produce prima facie evidence in order to put forward his arguments, the judgment under appeal is nevertheless vitiated by an error of law, given that the General Court distorted the facts and evidence which the appellant adduced, particularly with regard to the influence of mechanical and chemical treatment of the plant material examined and propagation by means of cuttings. |
70 |
The CPVO and Mr. Hansson contend that the judgment under appeal ‘is correct’ irrespective of whether the burden of proof or the burden of proving a prima facie case rests with the appellant, given that the Board of Appeal assessed the arguments and points of view advanced by the appellant. Moreover, the General Court did not err in law in applying the rules thus developed for adopting measures of inquiry. |
Findings of the Court
71 |
As regards the appellant’s first argument, the General Court cannot be reproached, in the first place, for infringing its obligation to state reasons. |
72 |
First, it is settled case-law that the obligation for the General Court, under Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof and Article 81 of the Rules of Procedure of the General Court, to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning of the General Court may therefore be implicit on condition that it enables the persons concerned to know the reason for the General Court’s decision and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, judgment in Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 21 and the case-law cited). |
73 |
In paragraph 137 of the judgment under appeal, the General Court justified the application by analogy of the principles established in the judgment in ILFO v High Authority (51/65, EU:C:1966:21) to the Board of Appeal on the ground that it is a quasi-judicial body. |
74 |
Moreover, the very principle of examination of the facts by the CPVO of its own motion under Article 76 of Regulation No 2100/94 does not preclude such an application, since, as is clear from paragraphs 53 and 54 above in the context of a request to open nullity proceedings provided for in Article 20(1) of that regulation, it is for the appellant to provide the substantive evidence showing that there are serious doubts about the legality of the contested protection. |
75 |
Secondly, as the Advocate General stated in point 76 of her Opinion, Article 81 of Regulation No 2100/94 stipulates that the principles of procedural law generally recognised in the Member States apply to proceedings before the CPVO. |
76 |
Therefore, the General Court cannot be criticised for having found that the appellant should have presented to the Board of Appeal prima facie evidence in order to secure from it the adoption of a measure of enquiry. |
77 |
In the second place, it is not clear from the judgment under appeal that the General Court erred in its application of the principles developed in the judgment in ILFO v High Authority (51/65, EU:C:1966:21). |
78 |
The General Court found in paragraph 138 of the judgment under appeal that the appellant did not advance any evidence whatsoever, or the slightest information to justify his request. |
79 |
In those circumstances, the appellant cannot claim that the General Court was wrong to hold that he could not seek the adoption of measures of inquiry, given that he did not present prima facie evidence. |
80 |
In that respect, the appellant claims that the General Court distorted the facts and evidence which he adduced in the proceedings before the CPVO, concerning, first, the influence of the chemical and mechanical treatment of the material used for the technical examination of the variety LEMON SYMPHONY and, secondly, the use of cuttings of that variety for that examination. |
81 |
It must be noted at the outset that it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, judgment in CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 41 and the case-law cited). |
82 |
In the first place, the appellant refers to the letter of 13 January 1997 sent by the agent of the Bundessortenamt responsible for the technical examination of the variety LEMON SYMPHONY, stating that ‘there is a risk that the technical examination will not progress satisfactorily [because of the treatment with growth regulators of the material sent]’. |
83 |
In that regard, first, as is clear from the presentation of the facts by the General Court in paragraph 64 of the judgment under appeal, that agent of the Bundessortenamt demonstrated at the hearing before the Board of Appeal in cases A 005/2007, A 006/2007 and A 007/2007 on 4 December 2007 that there was ‘no uncertainty as to the quality of the trials carried out in July/August 1997’, given that the effect of the growth regulators had disappeared. |
84 |
Secondly, the General Court held in paragraph 164 of the judgment under appeal that it falls within the discretion of the competent national office to examine or decide, during the technical examination, whether the plant material sent by Mr Hansson is in fact inappropriate or whether, as in the present case, the technique of taking cuttings makes it possible for the defects initially affecting the plant material to be remedied. |
85 |
Since the appellant did not at any time challenge the assertion of the agent of the Bundessortenamt, which was made after the matters on which he relies, and which states that the effects of the growth regulators had disappeared by the time of the technical examination of the variety LEMON SYMPHONY, the General Court concluded, without distorting any facts of the case or any evidence advanced by the appellant, that the appellant had not provided any evidence capable of calling the Board of Appeal’s assessment into question. |
86 |
In the second place, as regards the appellant’s claims relating to the risks connected with the use of material which grew from propagation by means of cuttings from a variety in order to carry out the technical examination, suffice it to state that the appellant submits that, since such a risk is a matter of common knowledge, it is not necessary to provide evidence of the existence of that risk in the present case. |
87 |
In those circumstances, the General Court could only find that the appellant had failed to satisfy the conditions necessary for the adoption of a measure of inquiry. |
88 |
Therefore, the General Court cannot be accused of having distorted the facts of the case or the evidence adduced by the appellant. |
89 |
In the light of the foregoing, the second ground of appeal cannot succeed. |
The third ground of appeal
Arguments of the parties
90 |
By his third ground of appeal, the appellant claims, in essence, that the General Court, in paragraphs 141 to 151 of the judgment under appeal, was in breach of its obligation to carry out a review of legality and distorted the facts. |
91 |
First, the appellant alleges that the General Court failed to appreciate the fact that the CPVO’s expertise concerning the practice of taking cuttings cannot be described as ‘a matter of common knowledge’. In any event, that ‘fact’ was distorted, and that description was not subject to a review of legality. |
92 |
Secondly, the General Court, in paragraph 147 of the judgment under appeal, erred in law by not giving reasons for its finding that the reasoning of the Board of Appeal is ‘compatible with the objective data of the case, as is apparent from the case-file’. |
93 |
Thirdly, the appellant identifies certain errors committed by the General Court, in particular in paragraph 147 of the judgment under appeal in its references to certain facts of the case. |
94 |
The CPVO contends that much of this ground entails a repetition of the arguments submitted in the previous grounds. |
95 |
Mr Hansson contends that the errors of fact identified by the appellant have no effect on the legality of the judgment under appeal. |
Findings of the Court
96 |
In the first place, the appellant’s arguments seek, in reality, to challenge the General Court’s assessment of the facts which, as has been noted in paragraph 81 above, and subject to any distortion of the facts, is not open to review by the Court of Justice at the stage of an appeal. |
97 |
Thus, when the appellant criticises the General Court for finding that, for the technical examination, the use of cuttings taken from plants sent by Mr Hansson is a matter of common knowledge, the appellant necessarily starts from the premiss that material grown from cuttings is not appropriate for conducting that examination; otherwise that argument is irrelevant. |
98 |
The examination of that factor requires an assessment of the facts which is outside the jurisdiction of the Court of Justice at the stage of an appeal. |
99 |
In any event, it was for the appellant to provide evidence to that effect in support of his claims, which he has not done, as was established in paragraphs 84 to 86 above. |
100 |
In the second place, even assuming that the General Court committed errors in designating the names of the agents of the CPVO and of the Bundessortenamt, the appellant does not indicate to what extent those errors are capable of calling into question the lawfulness of the judgment under appeal. In any event, it is not clear that such errors would affect the lawfulness of that judgment. |
101 |
Consequently, the third ground of appeal must be rejected. |
The fourth ground of appeal
Arguments of the parties
102 |
By his fourth ground of appeal, which relates to paragraphs 152 to 157 of the judgment under appeal, the appellant alleges, in essence, that the General Court failed to state reasons. |
103 |
By the first argument within that ground of appeal, the appellant claims that the judgment under appeal is inconsistent in that, on the one hand, in paragraph 10 of the judgment under appeal, the General Court found that the mechanical and chemical treatment of the plant material sent had threatened the technical examination of the variety LEMON SYMPHONY and, on the other, in paragraph 156 of that judgment, the General Court found that the appellant had not presented any specific information establishing that the plant material examined was not appropriate for conducting that examination. |
104 |
By his second argument, the appellant claims that the General Court should have reviewed whether the evidence relied on contained all the information which should have been taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drawn from it. |
105 |
The CPVO contends that the appellant challenges only the factual findings made by the General Court. In addition, the second argument under the fourth ground of appeal is wholly unfounded. |
106 |
Mr Hansson states that it was for the appellant to establish, or at least to provide evidence that growth regulators lead, not only to an incorrect evaluation of the criteria determining the rights, but also to an incorrect assessment of the criterion of distinctiveness laid down in Article 7 of Regulation No 2100/94. |
Findings of the Court
107 |
Since the appellant claims within this ground that, in the first place, the judgment under appeal is vitiated by a contradiction, suffice it to note, as is clear from paragraph 83 above, that the General Court found that the Bundessortenamt had considered that there was no doubt about the quality of the plant material used for the technical examination of the variety LEMON SYMPHONY. Therefore, the judgment under appeal contains no contradiction when it states, in paragraph 156, that the appellant provided no information to the contrary. |
108 |
In the second place, in any event, the assessments of the General Court, as they result from paragraphs 152 to 157 of the judgment under appeal, which the appellant challenges under that ground, were made for the sake of completeness in paragraphs 141 to 151 of that judgment. Therefore, even if the fourth ground raised by the appellant in support of his appeal were to be allowed, the judgment under appeal could not, however, be set aside. |
109 |
Consequently, the fourth ground of appeal must be rejected. |
The fifth and sixth grounds of appeal
Arguments of the parties
110 |
In the fifth ground of appeal, the appellant disputes the assessments of the General Court in paragraphs 159 to 162 of that judgment. |
111 |
He submits, in the first place, that the General Court infringed Article 7 of Regulation No 2100/94 by its finding in paragraph 159 of the judgment under appeal that the distinctive character, for the purposes of that provision, of the variety LEMON SYMPHONY was not determined ‘exclusively, if at all’ by reference to the characteristic ‘attitude of shoots’. Furthermore, the General Court also improperly extended the scope of the proceedings. |
112 |
In the second place, the appellant states that the General Court, in paragraph 160 of the judgment under appeal, distorted the facts in finding that the adapted 2006 description of the variety LEMON SYMPONY did not differ from the original 1997 description. Furthermore, the General Court infringed Article 20(2) of Regulation No 2100/94 in not finding that the variety for which the description was amended should not have been protected. |
113 |
Under the sixth ground of appeal, which challenges the General Court’s assessments in paragraphs 165 to 168 of the judgment under appeal, the appellant claims, first of all, that that Court distorted the facts in that the appellant did not limit his arguments to the issue of the relative or absolute character of the ‘attitude of shoots’. |
114 |
Next, the appellant criticises the General Court for having improperly extended the scope of the proceedings to the arguments relating to the proceedings in Case T‑177/08. |
115 |
Finally, the General Court infringed its obligation to carry out a full review of the legality of the decision at issue by not upholding the appellant’s argument alleging that the Board of Appeal had not taken his arguments into consideration. |
116 |
In relation to the fifth ground, the CPVO contends that the General Court’s finding in paragraph 159 of the judgment under appeal must be understood as meaning that in 1997 no comparable variety was available. |
117 |
Mr Hansson contends that the disputed findings are not decisive in terms of the issue of the distinctive character of the protected variety. |
118 |
In relation to the sixth ground, the CPVO contends that the appellant misinterprets the judgment under appeal. In addition, none of the considerations relating to the attitude of the shoots is decisive for determining the legality of the judgment under appeal. |
119 |
Mr Hansson contends that the assessment of the distinctiveness of a variety is based on a comparison between the variety sought and known varieties of the same species. Consequently, the distinctive criteria could be assessed only by making such a comparison. |
Findings of the Court
120 |
As a preliminary point, it must be stated, first, that, by the fifth and sixth grounds of appeal, the appellant is challenging assessments made by the General Court in paragraphs 159 to 162 and 165 to 168 of the judgment under appeal concerning arguments of the appellant which the General Court held to be ineffective, as is stated in paragraph 158 of that judgment. |
121 |
Consequently, given that the General Court rightly found that the appellant had not adduced any evidence or means of proof capable of challenging the technical examination which resulted in the grant of the right to the variety LEMON SYMPHONY, the appellant’s arguments relating to the level of expression attributed in respect of the characteristic ‘attitude of shoots’ cannot lead to the judgment under appeal being set aside. |
122 |
Thus, since the appellant has not managed to demonstrate that the plant material used for the technical examination of the variety LEMON SYMPHONY was not appropriate and that the DUS criteria had therefore not been satisfied, the arguments relating to the adaptation of the description of that variety are themselves ineffective. |
123 |
Secondly, as was observed in paragraph 82 above, an appeal is limited to points of law, since the appraisal of the facts and the assessment of evidence do not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. |
124 |
In that regard, the appellant cannot challenge the General Court’s factual assessments, in particular in relation to the level of expression attributed in respect of the characteristic ‘attitude of shoots’ concerning the variety LEMON SYMPHONY. |
125 |
It is in the light of those considerations that each of the arguments advanced in support of the fifth and sixth grounds of the appeal must be examined. |
126 |
First, the appellant alleges that the characteristic ‘attitude of shoots’ necessarily comes within the examination of the distinctive character of a variety under Article 7 of Regulation No 2100/94. |
127 |
However, in criticising the General Court for infringing that article, when in paragraph 159 of the judgment under appeal the General Court found that the assessment of the distinctive character of a plant variety was not determined exclusively, if at all, by reference to the ‘attitude of shoots’ characteristic, the appellant has misinterpreted the judgment under appeal. |
128 |
The General Court did not consider, in the context of the examination of the distinctive character of a variety as provided for under Article 7 of Regulation No 2100/94, that the ‘attitude of shoots’ characteristic should not be taken into account. It is, however, clear that the examination of the distinctive character of a plant variety necessarily presupposes the existence of reference plant varieties. Therefore, it is on the basis of whether such varieties exist that the ‘attitude of shoots’ characteristic must be examined, and that it must play a more, or less, decisive role with regard to the distinctive character of the plant variety to be protected. |
129 |
Accordingly, the Court of Justice must reject the first and second arguments advanced within the fifth ground of appeal and the third argument advanced within the sixth ground of appeal. |
130 |
In addition, the General Court cannot be criticised for having considered that the adaptation of the description of the ‘attitude of shoots’ characteristic did not call into question the protection of the variety LEMON SYMPHONY. In so far as that characteristic is determined by a comparison with other plant varieties, a refinement of the description is inevitable where other plant varieties emerge. |
131 |
In those circumstances, the third and fourth arguments advanced under the fifth ground of appeal must be rejected. |
132 |
Finally, the appellant cannot, without contradicting himself, criticise the General Court, first, for having ruled on arguments relating to the proceedings in Case T‑177/08, when the appellant himself put forward those arguments, and secondly, for having failed to carry out a full review of the legality of the decision at issue, in that that decision did not take into account the appellant’s arguments relating to the nature of the ‘attitude of shoots’ characteristic, and at the same time criticise the General Court for having specifically ruled on the nature of that characteristic. The first and second arguments advanced within the sixth ground of appeal must therefore be rejected. |
133 |
Since the fifth and sixth grounds of appeal must be rejected, it is clear from all the foregoing that the appeal must be dismissed in its entirety. |
Costs
134 |
In accordance with Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the CPVO has applied for costs and Mr Schräder has been unsuccessful, the latter must be ordered to pay the costs. |
On those grounds, the Court (First Chamber) hereby: |
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[Signatures] |
( *1 ) Language of the case: German.