CJEU about 'unauthorised use of variety constituents’ of Article 13(2)(a) Community Plant Variety Rights Regulation

Planting of a protected variety and harvesting of the thereof, which is not liable to be used as propagating material may not be regarded as an ‘act of production or reproduction (multiplication)’ of variety constituents within the meaning of Article 13(2)(a) Community Plant Variety Rights Regulation: authorisation of the holder of a Community plant variety is required if the conditions laid down in Article 13(3) of that regulation are fulfilled, unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents.The fruit of a plant variety, which is not likely to be used as propagating material, may not be regarded as having been obtained through the ‘unauthorised use of variety constituents’ (Article 13(2)(a) Community Plant Variety Rights Regulation where those variety constituents were propagated and sold to a farmer by a nursery in the period between the publication of the application for a Community plant variety right in relation to that plant variety and the grant thereof. The same applies to those fruits if those fruits were harvested after the Community plant variety right was granted. When the propagation and sale takes place after the grant of the plant variety right, the holder may assert his or her right under Article 13(2)(a) and (3) of that regulation unless the holder had a reasonable opportunity to exercise his or her right in relation to those variety constituents.

PLANT VARIETY RIGHTS

Nadorcott Protection is holder of a plant variety Nadorcott. The defendant is owner of two parcels of land on which 506 trees of the Nadorcott plant variety were planted in Spring 2005 and 998 trees in Spring 2006, respectively. The plants were purchased from a nursery open to the public in the time between publication of the application for the protection of that variety and grant thereof on 15 February 2006. The referring court asks for an interpretation of Article 13 Community Plant Variety Rights Regulation, which deals with the rights of the holder of a Community plant variety right and prohibited acts. The questions are answered as follows:

“1. Article 13(2)(a) and (3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the activity of planting a protected variety and harvesting the fruit thereof, which is not likely to be used as propagating material, requires the authorisation of the holder of the Community plant variety right relating to that plant variety where the conditions laid down in Article 13(3) of that regulation are fulfilled.

2. Article 13(3) of Regulation No 2100/94 must be interpreted as meaning that the fruit of a plant variety, which is not likely to be used as propagating material, may not be regarded as having been obtained through the ‘unauthorised use of variety constituents’ of that plant variety, within the meaning of that provision, where those variety constituents were propagated and sold to a farmer by a nursery in the period between the publication of the application for a Community plant variety right in relation to that plant variety and the grant thereof. Where, after such protection has been granted, those variety constituents were propagated and sold without the authorisation of the right holder, the latter may assert his or her right under Article 13(2)(a) and (3) of that regulation in respect of that fruit, unless he or she had reasonable opportunity to exercise his or her right in relation to those variety constituents.”

IPPT20191219, CJEU, Variedades Vegetales Protegidas

C‑176/18 - ECLI:EU:C:2019:1131