"Reasonable compensation" covers all damage connected to pay the license fee, including payment of default interest

09-06-2016 Print this page
IPPT20160609, CJEU, Hansson v Jungpflanzen Grunewald

PLANT VARIETY RIGHTS

 

Damages under article 94 of Regulation No 2100/94 cover any damage except an ‘infringer supplement’ or a restitution of gains and profits made by an infringer. "Reasonable compensation" covers all damage connected to pay the license fee, including payment of default interest. Damages under article 94(2) of Regulation No 2100/94 must be determined based on specific matters put forward by the holder of the variety infringed, if necesarry by using a lump-sum method. When estimating these damages, costs of an interlocutory application and out-of-court expences can under certain conditions not be taken into account.

 

40. In those circumstances, Article 94 of Regulation No 2100/94 does not permit an infringer to be ordered to pay a flat-rate ‘infringer supplement’, as described by the referring court, since such a supplement does not necessarily reflect the damage suffered by the holder of the variety infringed, although Directive 2004/48 does not prevent the Member States from laying down measures that are more protective.

54. Consequently, the answer to Questions 2 and 3 is that the concept of ‘reasonable compensation’, provided for in Article 94(1) of Regulation No 2100/94, must be interpreted as meaning that it covers, in addition to the fee that would normally be payable for licensed production, all damage that is closely connected to the failure to pay that fee, which may include, inter alia, payment of default interest. It is for the referring court to determine the circumstances which require that fee to be increased, bearing in mind that each of them may be taken into account only once for the purpose of determining the amount of reasonable compensation.

64.The answer to questions 4, 5(a) and (c), 7 and 8 is that Article 94(2) of Regulation No 2100/94 must be interpreted as meaning that the amount of the damage referred to in that provision must be determined on the basis of the specific matters put forward in that regard by the holder of the variety infringed, if need be using a lump-sum method if those matters are not quantifiable. It is not contrary to that provision if the costs incurred in an unsuccessful interlocutory application are left out of account in the determination of that damage or if the out-of-court expenses incurred in connection with the main action are not taken into consideration.

 

IPPT20160609, CJEU, Hansson v Jungpflanzen Grunewald

 

C-481/14 - ECLI:EU:C:2016:419