PLANT VARIETIES: THE GROWING ROLE OF THE CPVO (COMMUNITY PLANT VARIETY OFFICE) BOARD OF APPEAL IN THE LIGHT OF THE RECENT CASE “SIBERIA”
In the recent case before the Sixth Chamber of the General Court (see Judgment of the General Court, VI Chamber, 25th June 2020, T-737/18 – Siberia Oriental BV vs. Community Plant Variety Office), the latter reiterated two important principles governing the administrative procedure for assessing the registration of a plant variety right.
The Netherlands company Siberia Oriental BV appealed the decision of the CPVO Board of Appeal of 15th October 2018 concerning the request for modification of the expiry date of the Community plant variety right of the variety Siberia, of the species Lilium L.
The Community plant variety right was granted by the CPVO on 2nd August 1996 and the expiry date was set on 1st February 2018. In August 2017, the applicant requested the CPVO to change the expiry date of the plant variety right, replacing the date initially fixed with 30 April 2020. The applicant claimed that, first, the duration of the plant variety right should have been calculated by the CPVO on the basis of Article 19 of Regulation (EU) No 2100/94 and that, secondly, the CPVO should have reduced the duration of the plant variety right in accordance with Article 116 paragraph 4 of that Regulation, in view of the period between the first sale of the plant variety in question and the date of entry into force of the mentioned Regulation.
The decision of the UCVV Board of Appeal
The Board of Appeal declared the application inadmissible on the ground, first, that the two-month period laid down in Article 69 of EU Regulation No 2100/94 for lodging an appeal against the CPVO’s decision had already expired. Second, the Board of Appeal affirmed that the application could not be based on Article 67 in combination with Article 87 of Regulation (EU) No 2100/94, since those provisions concern the initial registration of the expiry date of the Community plant variety right and not its modification. Third, the Board of Appeal stated that Article 53 paragraphs 4 and 5 of EU Regulation No. 874/2009 of the European Commission – concerning the procedure for the correction of the CPVO’s decisions in case of linguistic errors, errors of transcription or patent mistakes – could not be applied in the present case.
The appeal before the EU General Court
Siberia Oriental BV appealed the decision of the CPVV Board of Appeal before the EU General Court.
The applicant submitted two pleas: first, the alleged infringement of procedural requirements provided by EU Regulation No 2100/94. In particular, the applicant claimed that the decision of the CPVO was inadequately reasoned. Second, the applicant alleges that the Board of Appeal infringed EU Regulation No 2100/94 and any law relating to its application, including the TEU and the TFEU. In particular, the applicant submits that the Board of Appeal erroneously found: (1) that the application could not be based on Article 67 in combination with Article 87 of EU Regulation No 2100/94; (2) that the application could not be based on Article 53(4) of the Implementing Regulation No 874/2009.
In conclusion, the applicant requested the General Court to revise the CPVO’s decision by amending itself the date of expiry of the plant variety right in question.
The decision of the General Court
The General Court, required to cancel the decision of the CPVO, addressed the issue of the role it must play in relation to the decisions of an administrative body, namely the CPVO Board of Appeal. First, the General Court stated that the CPVO is required, in accordance with Article 73 paragraph 6 of EU Regulation No 2100/94, to take all necessary measures to comply with the judgment of the EU Court, having regard to the operative part of the judgment and its reasoning, without the EU Court being able to order the administrative body to carry out a particular activity. Therefore, the General Court declared the applicant’s appeal inadmissible in so far as it required the Court to change the date of expiry of the Community plant variety right. Second, the General Court set out the criteria on the basis of which a decision of the CPVO can be regarded as sufficiently reasoned within the meaning of Article 75 of EU Regulation No 2100/94 and Article 296 TFEU. As European case-law has repeatedly pointed out, the obligation to provide sufficient reasoning meets two objectives: first, to enable the persons concerned to know the reasons for the measure adopted by the administrative body and, second, to enable the EU Court to verify the lawfulness of the administrative decision.
More specifically, the General Court states that the CPVO can fulfill the obligation to provide sufficient reasoning to its decision “without responding expressly and exhaustively to all the arguments submitted by an applicant, as long as the CPVO explains the facts and legal considerations which are of essential importance to the economy of the decision (…) The reasoning does not necessarily have to specify all the relevant factual and legal elements, in so far as, in order to ascertain whether the reasoning of an act satisfies the requirements of Article 296 TFEU, reference must be made not only to the content of that act but also to its context and to all the legal rules governing the subject-matter concerned”.
With regard to the present case, the General Court found that the Board of Appeal of the CPVO had provided a sufficient reasoning for its decision, stating that the refusal to exercise the power to correct the expiry date of the plant variety right in question could not be appealed pursuant to Article 67 of EU Regulation No 2100/94 adding that such a refusal did not constitute a decision related to data registration or cancellation within the meaning of Article 87 of that Regulation.
The recent decision of the General Court increases the role that the Board of Appeal will play in the future. By imposing on the latter the obligation to give precise reasoning for its decision, the European Court has required the Board of Appeal to act increasingly like a Court of Justice rather than a simple office granting or rejecting applications for registration of plant variety rights.
Luigi Goglia, Camilla Macrì