CPVO president has the power to insert, on completion of the technical examination of a variety, a new characteristic in respect of that variety

Print this page 15-06-2017
IPPT20170608, CJEU, Schniga v CPVO

PLANT VARIETY RIGHTS

 

General Court erred in law in the finding that Article 23(1) of the implementing regulation did not grant the President of the CPVO the power to insert, on completion of the technical examination of a variety, a new characteristic in respect of that variety.

 

"54. As the Advocate General noted, in point 97 of his Opinion, the assessment of the characteristics of a plant variety necessarily contains a particular uncertainty due to the nature of the object itself to which the technical examination relates, namely a plant variety, as well as the length of time required to conduct such an examination.


55. In those circumstances, only the flexibility that allows the recognised power of the President of the CPVO, under Article 23(1) of the implementing regulation, to insert additional characteristics in respect of a variety is also capable of ensuring the objectivity of the procedure for granting Community plant variety rights. Thus, an application for a Community plant variety right may not be rejected solely on the ground that the characteristic of an examined variety, found during the technical examination and decisive for assessing the distinctiveness of that variety in comparison with other varieties, was not referred to in either the technical questionnaire completed by the applicant or in the relevant test guidelines and protocols.


56. In that regard, it must be recalled that, with regard to the broad discretion conferred on the CPVO, it may, if it considers it necessary, take account of facts and evidence submitted or produced by the parties out of time (see, to that effect, judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑534/10 P, EU:C:2012:813, paragraph 50)."

 

An application for a Community plant variety right may not be rejected solely on the ground that the characteristic of an examined variety was not referred to in either the technical questionnaire completed by the applicant or in the relevant test guidelines and protocols.

 

"54. As the Advocate General noted, in point 97 of his Opinion, the assessment of the characteristics of a plant variety necessarily contains a particular uncertainty due to the nature of the object itself to which the technical examination relates, namely a plant variety, as well as the length of time required to conduct such an examination.


55. In those circumstances, only the flexibility that allows the recognised power of the President of the CPVO, under Article 23(1) of the implementing regulation, to insert additional characteristics in respect of a variety is also capable of ensuring the objectivity of the procedure for granting Community plant variety rights. Thus, an application for a Community plant variety right may not be rejected solely on the ground that the characteristic of an examined variety, found during the technical examination and decisive for assessing the distinctiveness of that variety in comparison with other varieties, was not referred to in either the technical questionnaire completed by the applicant or in the relevant test guidelines and protocols.


56. In that regard, it must be recalled that, with regard to the broad discretion conferred on the CPVO, it may, if it considers it necessary, take account of facts and evidence submitted or produced by the parties out of time (see, to that effect, judgment of 19 December 2012, Brookfield New Zealand and Elaris v CPVO and Schniga, C‑534/10 P, EU:C:2012:813, paragraph 50)."

 

No restrictions with regard to the time of insertion of a new characteristic.

 

"61. As to the time when the President of the CPVO may exercise his power under Article 23(1) of the implementing regulation, none of the provisions of that regulation or of the basic regulation preclude the insertion of a new characteristic intervening following the completion of the technical examination, given that such a characteristic was found when conducting that examination."

 

No infringement of the principle of legal certainty.

 

"66. Therefore, the fact that the President of the CPVO inserts a new characteristic, the presence of which was found only during the technical examination of a variety, cannot in itself constitute infringement of the principle of legal certainty with regard to third parties, the protected variety of which was chosen as a variety to be used as a reference in light of that technical examination. That cannot give rise to legitimate expectations as regards the extent of that examination and the nature of the distinctive characteristics examined.


67. It follows from all the foregoing considerations that the General Court erred in law in finding that Article 23(1) of the implementing regulation did not grant the President of the CPVO the power to insert, on completion of the technical examination of a variety, a new characteristic in respect of that variety, when that characteristic was not referred to in either the technical questionnaire completed by the applicant or in the applicable test guidelines and protocols.

 

68. Consequently, Schniga’s argument must be upheld, and, without it being necessary to analyse the other complaints in the appeal, to set aside the judgment under appeal in so far as it upheld the annulment of the decision of the CPVO by the Board of Appeal on the ground that the distinctive characteristic ‘width of stripes’ relied on had been inserted by the President of the CPVO."

 

IPPT20170608, CJEU, Schniga v CPVO

 

C-625/15 P - ECLI:EU:C:2017:435