The General Court wrongly held that the principle of examination of the facts by the CPVO of its own motion also applies in proceedings before the Board of Appeal.
"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.
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."
No lead to the setting aside of the judgment: The General Court, non the less checked of the judgment under appeal whether the evidence meets the criteria pertaining to the principle of the examination of the facts of its own motion
"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."
Appellant had not adduced, to the requisite legal standard, the facts and evidence which had not been fulfilled in technical examination of the variety LEMON SYMPHONY
"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.
The General Court rightly rejected measure of inquiry: the appellant did not advance any evidence whatsoever
"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.
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."
Consideration of the General Court that the appellant has produced no evidence of inadequacy of technical research for granting LEMON Symphony is factual and not testable
"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.
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."
In so far the description of the ‘attitude of shoots’ as characteristic is determined by a comparison with other plant varieties, a refinement of the description is inevitable where other plant varieties emerge
"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."
IPPT20150521, CJEU, Schräder v CPVO
C-546/12 P - ECLI:EU:C:2015:332
