Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights

When examining the appeal, the Board of Appeal shall as often as necessary invite the parties to the appeal proceedings to file observations on notifications issued by itself or on communications from the other parties to the appeal proceedings within specified time limits. Parties to the appeal proceedings shall be entitled to make oral representations.

Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals.

The action may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of this Regulation or of any rule of law relating to their application, or misuse of power.

The Court of Justice shall have jurisdiction to annul or to alter the contested decision.

The action shall be open to any party to appeal proceedings which has been unsuccessful, in whole or in part, in its submissions.

The action shall be brought before the Court of Justice within two months of the date of service of the decision of the Board of Appeal.

The Office shall be required to take the necessary measures to comply with the judgment of the Court of Justice.

A direct action may be brought before the Court of Justice against decisions of the Office pursuant to Articles 29 and 100 (2).

The provisions laid down in Article 73 shall apply mutatis mutandis.

Oral proceedings shall be held either on the initiative of the Office itself or at the request of any of the parties to proceedings.

Without prejudice to paragraph 3, oral proceedings before the Office shall not be public.

Oral proceedings before the Board of Appeal including delivery of the decision, shall be public in so far as the Board of Appeal before which the proceedings are taking place does not decide otherwise in circumstances where serious and unwarranted disadvantages could arise from admitting the public, particularly for any of the parties to the appeal proceedings.

In any proceedings before the Office, the means of giving or obtaining evidence may include the following:

Where the Office decides through a collective body, that body may commission one of its members to examine the evidence adduced.

If the Office considers it necessary that a party to proceedings, witness or expert give evidence orally, it shall either:

A party to proceedings, witness or expert who is summoned before the Office may request it to allow his evidence to be heard by the competent judicial or other authority in his country of domicile. On receipt of such a request or in the case that no reaction was given to the summons, the Office may, in accordance with Article 91 (2), request the competent judicial or other authority to hear the evidence of that person.

If a party to proceedings, witness or expert gives evidence before the Office, the Office may, if it considers it advisable that the evidence be given under oath or otherwise in binding form, request the competent judicial or other authority in the country of domicile of the relevant person to hear his evidence under the requisite conditions.

When the Office requests a competent judicial or other authority to take evidence, it may request it to take the evidence in binding form and to permit a member of the Office to attend the hearing and question the party to proceedings, witness or expert either through that judicial or other authority or directly.

Where, in spite of having taken all due care in the particular circumstances, the applicant for a Community plant variety right or the holder or any other party to proceedings before the Office has been unable to observe a time limit vis-à-vis the Office, his rights shall, upon application, be restored if his failure to respect the time limit has resulted directly, by virtue of this Regulation, in the loss of any right or means of redress.

Applications shall be filed in writing within two months after the cause of non-compliance when the time limit has ceased to operate. The act omitted shall be completed within this period. Applications shall be admissible only within the period of one year following the expiry of the time limit which has not been observed.

An application shall be accompanied by a statement of the grounds on which it is based and the facts on which it relies.

The provisions of this Article shall not apply to the time limits referred to in paragraph 2 nor to the time limits specified in Article 52 (2), (4) and (5).

Any person who, in a Member State, has in good faith used or made effective and genuine arrangements to use a variety which is the subject of a published application for grant of a Community plant variety right, or of a Community plant variety right that has been granted, in the course of a period between the loss of rights pursuant to paragraph 1 in respect of the application or of a Community plant variety right that has been granted and the restoration of those rights, may without payment continue such use in the course of his business or for the needs thereof.

In the absence of procedural provisions in this Regulation or in provisions adopted pursuant to this Regulation, the Office shall apply the principles of procedural law which are generally recognized in the Member States.

Article 48 shall apply mutatis mutandis to the staff of the Office in so far as it is involved in decisions of the kind referred to in Article 67, and to the staff of the Examination Offices, in so far as it participates in measures for the preparation of such decisions.

The Office shall charge fees for its official acts provided for under this Regulation as well as for each year of the duration of a Community plant variety right, pursuant to the fees regulations adopted in accordance with Article 113.

If fees due in respect of the official acts set out in Article 113 (2) or of other official acts referred to in the fees regulations, which are only to be carried out on application, are not paid, the application shall be deemed not to have been filled or the appeal not to have been lodged if the acts necessary for the payment of the fees have not been effected within one month of the date on which the Office served a new request for payment of fees and indicated in so doing these consequences of failure to pay.

If certain information provided by the applicant for grant of a Community plant variety right can only be verified by a technical examination which goes beyond the framework established for the technical examination of varieties of the taxon concerned, the fees for the technical examination may be increased, after having heard the person liable to pay the fees, up to the amount of the expenditure actually incurred.

In the case of a successful appeal, the appeal fees or, in case of a partial success, the corresponding part of the appeal fees, shall be refunded. However, the refund can be fully or partly refused if the success of the appeal is based on facts which were not available at the time of the original decision.

The Office's right to require payment of fees shall lapse after four years from the end of the calender year in which the fees became due for payment.

Rights against the Office for the refunding of fees or of sums overcharged by the Office shall lapse after four years from the end of the calendar year in which the rights arose.

A request for payment of a fee shall have the effect of interrupting the time limit specified in paragraph 1, and a written and reasoned claim for refund shall have the effect of interrupting the time limit specified in paragraph 2. After interruption the time limit shall begin to run again immediately and shall terminate at the latest six years after the end of the calendar year in which it originally commenced, unless judicial proceedings to enforce the right have been instituted in the meantime; in that case the time limit shall end not earlier than one year after the judgment has acquired the authority of a final decision.

The losing party to proceedings for revocation or cancellation of a Community plant variety right, or to appeal proceedings shall bear the costs incurred by the other party to proceedings as well as all costs incurred by him essential to the proceedings, including travel and subsistence and the remuneration of an agent, adviser or advocate, within the limits of the scales set for each category of costs under the conditions laid down in the implementing rules pursuant to Article 114.

However, where each party to proceedings succeeds on some and fails on other heads, or if reasons of equity so dictate, the Office or Board of Appeal shall decide a different apportionment of costs.

The party to proceedings who terminates the proceedings by withdrawing the application for a Community plant variety right, the application for revocation or cancellation of rights, or the appeal, or by surrendering the Community plant variety rights, shall bear the costs incurred by the other party to proceedings as stipulated in paragraphs 1 and 2.

Where the parties to proceedings conclude before the Office, or Board of Appeal a settlement of costs differing from that provided for in the preceding paragraphs, note shall be taken of that agreement.

On request, the Office or Board of Appeal shall determine the amount of the costs to be paid pursuant to the preceding paragraphs.

Final decisions of the Office which determine the amount of costs shall be enforceable.

Enforcement shall be governed by the rules of civil procedure applicable in the Member State in which it takes place. Subject only to verification that the relevant document is authentic, the enforcement clause or endorsement shall be appended by the national authority appointed for that purpose by the Government of each Member State; the Governments shall inform the Office and the Court of Justice of the European Communities of the identity of each such national authority.

When, upon application by the party seeking enforcement, these formalities have been completed, it shall be entitled to proceed to endorsement under national law by bringing the matter directly before the competent body.

Enforcement shall not be suspended except by decision of the Court of Justice of the European Communities. Control as to the regularity of enforcement measures shall, however, reside with the national courts.

The Office shall keep a Register of Applications for Community Plant Variety Rights which shall contain the following particulars:

The Office shall keep a Register of Community Plant Variety Rights wherein, after grant of a Community plant variety right, the following particulars shall be entered:

Any other particular or any condition for the entering in both Registers may be specified in the implementing rules pursuant to Article 114.

The Office may of its own motion and upon consultation with the holder adapt the official variety description in respect of the number and type of characteristics or of the specified expressions of those characteristics, when necessary, in the light of the current principles governing the description of varieties of the taxon concerned, in order to render the description of the variety comparable with the descriptions of other varieties of the taxon concerned.

The Registers mentioned in Article 87 shall be open to public inspection.

In case of a legitimate interest, the following shall be open to public inspection, in accordance with the conditions set up in the implementing rules pursuant to Article 114:

In the case of varieties for which material with specific components has to be used repeatedly for the production of material, at the request of the applicant for a Community plant variety right, all data relating to components, including their cultivation, shall be withheld from inspection. Such a request for withholding from inspection may not be filed once the decision on the application for grant of a Community plant variety right has been taken.

Materials submitted or obtained in connection with examinations under Articles 55 (4), 56 and 64 may not be given to other parties by the competent authorities under this Regulation unless the person entitled gives his consent or such transfer is required in connection with the cooperation covered by this Regulation for the purposes of the examination or by virtue of legal provisions.

The Office and the competent variety offices of the Member States shall, on request and without prejudice to the conditions set up for the sending of results of technical examinations, dispatch to each other for their own use, free of charge, one or more copies of their respective publications and any other useful information relating to property rights applied for or granted.

The data referred to in Article 88 (3) shall be excluded from information, unless:

Unless otherwise provided in this Regulation or in national law, the Office, Examination Offices referred to in Article 55 (1) and the courts or authorities of the Member States shall on request give assistance to each other by communicating information or opening files related to the variety, and samples or growing thereof for inspection. Where the Office and the Examination Offices lay files, samples or growing thereof open to inspection by courts or public prosecutors' offices, the inspection shall not be subject to the restrictions laid down in Article 88, and the inspection given by the Examination Offices shall not be subject to a decision of the Office pursuant to that Article.

Upon receipt of letters rogatory from the Office, the courts or other competent authorities of the Member States shall undertake on behalf of that Office and within the limits of their jurisdiction, any necessary enquiries or other related measures.

Any variety which is the subject matter of a Community plant variety right shall not be the subject of a national plant variety right or any patent for that variety. Any rights granted contrary to the first sentence shall be ineffective.

Where the holder has been granted another right as referred to in paragraph 1 for the same variety prior to grant of the Community plant variety right, he shall be unable to invoke the rights conferred by such protection for the variety for as long as the Community plant variety right remains effective.

Whosoever:

Whosoever acts intentionally or negligently shall moreover be liable to compensate the holder for any further damage resulting from the act in question. In cases of slight negligence, such claims may be reduced according to the degree of such slight negligence, but not however to the extent that they are less than the advantage derived therefrom by the person who committed the infringement.

Where the party liable pursuant to Article 94 has, by virtue of the infringement, made any gain at the expense of the holder or of a person entitled to exploitation rights, the courts competent pursuant to Articles 101 or 102 shall apply their national law, including their private international law, as regards restitution.

Paragraph 1 shall also apply as regards other claims that may arise in respect of the performance or omission of acts pursuant to Article 95 in the time between publication of the application for grant of a Community plant variety right and the disposal of the request.

In all other respects the effects of Community plant variety rights shall be determined solely in accordance with this Regulation.

If a Community plant variety right has been granted to a person who is not entitled to it under Article 11, the person entitled to it may, without prejudice to any other remedy which may be open to him under the laws of the Member States, claim to have the Community plant variety right transferred to him.

Where a person ist entitled to only part of a Community plant variety right, that person may, in accordance with paragraph 1, claim to be made a joint holder.

Claims pursuant to paragraphs 1 and 2 may be invoked only within a period of up to five years of publication of the grant of the Community plant variety right. This provision shall not apply if the holder knew, at the time it was granted to or acquired by him, that he was not entitled to such rights or that entitlement thereto was not vested solely in him.

The person entitled shall be eligible mutatis mutandis to pursue claims pursuant to paragraphs 1 and 2 in respect of an application for grant of a Community plant variety right filed by a person who was not entitled to it or whom the entitlement was not vested solely.

In the event of a complete change in the holdership of a Community plant variety right in consequence of a final judgment delivered pursuant to Articles 101 or 102 for the purposes of claiming entitlement under Article 98 (1), any exploitation or other rights shall lapse with the entry of the person entitled in the Register of Community Plant Variety Rights.

Where the holder or a person enjoying the right of exploitation has effected one of the acts set out in Article 13 (2) or has made effective and genuine arrangements to do so prior to the commencement of the proceedings pursuant to Articles 101 or 102, he may continue or perform such acts provided he requests a non-exclusive exploitation right from the new holder entered in the Register of Community Plant Variety Rights. Such requests must be made within the time limit laid down in the implementing rules. The exploitation right may be granted by the Office in the absence of an agreement between the parties. Article 29 (3) to (7) shall apply mutatis mutandis.

Paragraph 2 shall not apply where the holder or persons enjoying the right of exploitation acted in bad faith when they effected the acts or began to make the arrangements.

The Lugano Convention as well as the complementary provisions of this Article and of Articles 102 to 106 of this Regulation shall apply to proceedings relating to actions in respect of the claims referred to in Articles 94 to 100.

Proceedings of the type referred to in paragraph 1 shall be brought in the courts:

Proceedings relating to actions in respect of claims for infringement may also be brought in the courts for the place where the harmful event occured. In such cases, the court shall have jurisdiction only in respect of infringements alleged to have been committed in the territory of the Member State to which it belongs.

The legal processes and the competent courts shall be those that operate under the laws of the State determined pursuant to paragraphs 2 or 3.

Actions for claiming entitlement pursuant to Article 98 of this Regulation shall not be considered to fall under the provisions of Article 5 (3) and (4) of the Lugano Convention.

Notwithstanding Article 101 of this Regulation, Articles 5 (1), 17 and 18 of the Lugano Convention shall apply.

For the purposes of applying Articles 101 and 102 of this Regulation, the domicile or seat of a party shall be determined pursuant to Articles 52 and 53 of the Lugano Convention.

Actions for infringement may be brought by the holder. Persons enjoying exploitation rights may bring such actions unless that has been expressly excluded by agreement with the holder in the case of an exclusive exploitation right or by the Office pursuant to Articles 29 or 100 (2).

Any person enjoying exploitation rights shall, for the purpose of obtaining compensation for damage suffered by him, be entitled to intervene in an infringement action brought by the holder.

Where an action relates to claims pursuant to Article 98 (4) and the decision depends upon the protectability of the variety pursuant to Article 6, this decision may not be given before the Office has decided on the application for a Community plant variety right.

Where an action relates to a Community plant variety right that has been granted and in respect of which proceedings for revocation or cancellation pursuant to Articles 20 or 21 have been initiated, the proceedings may be stayed in so far as the decision depends upon the validity of the Community plant variety right.

Estimates of all the Office's revenue and expenditure shall be prepared for each financial year and shall be shown in the Office's budget, and each financial year shall correspond with the calendar year.

The revenue and expenditure shown in the budget shall be in balance.

Revenue shall comprise, without prejudice to other types of income, total fees payable pursuant to Article 83 under the fees regulations referred to in Article 113, and, to the extent necessary, a subsidy from the general budget of the European Communities.

Expenditure shall comprise, without prejudice to other types of expenditure, the fixed costs of the Office and the costs arising from the Office's normal functioning, including sums payable to the Examination Offices.

The President shall draw up each year an estimate of the Office's revenue and expenditure for the following year and shall transmit it to the Administrative Council not later than 31 March each year, together with a list of posts and, where the estimate provides for a subsidy referred to in Article 108 (3), prefaced by an explanatory statement.

Should the estimate provide for a subsidy referred to in Article 108 (3), the Administrative Council shall immediately forward the estimate to the Commission, together with the list of posts and the explanatory statement, and may attach its opinion. The Commission shall forward them to the budget authority of the Communities and may attach an opinion along with an alternative estimate.

The Administrative Council shall adopt the budget, which shall include the Office's list of posts. Should the estimate contain a subsidy referred to in Article 108 (3), the budget shall, if necessary, be adjusted to the appropriations in the general budget of the European Communities.

An internal audit function shall be set up within the Office, to be performed in compliance with the relevant international standards. The internal auditor, appointed by the President, shall be responsible to him for verifying the proper operation of budget implementation systems and procedures of the Office.

Not later than 31 March each year the President shall transmit to the Commission, the Administrative Council and the Court of Auditors of the European Communities accounts of the Office's total revenue and expenditure for the preceding financial year. The Court of Auditors shall examine them in accordance with relevant provisions applicable to the general budget of the European Communities.

The Administrative Council shall give a discharge to the President of the Office in respect ot the implementation of the budget.

The fees regulations shall determine in particular the matters for which fees pursuant to Article 83 (1) are due, the amounts of the fees and the way in which they are to be paid.

Fees shall be charged for at least in respect of the following matters for:

The fees regulations shall be adopted in accordance with the procedure laid down in Article 115, after consultation of the Administrative Council on the draft of the measures to be taken.

Detailed implementing rules shall be adopted for the purpose of applying this Regulation. They shall in particular include procisions:

Without prejudice to Articles 112 and 113, all the implementing rules referred to in this Regulation shall be adopted in accordance with the procedure laid down in Article 115, after consultation of the Administrative Council on the draft of the measures to be taken.

The Commission shall be assisted by a committee.

Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC ([^E0008]) shall apply.

The committee shall adopt its rules of procedure.

Notwithstanding Article 10 (1) (a) and without prejudice to the provisions of Article 10 (2) and (3), a variety shall be deemed to be new also in cases where variety constituents or harvested material thereof have not been sold or otherwise disposed of to others, by or with the consent of the breeder, within the territory of the Community for purposes of exploitation of the variety, earlier than four years, in the case of trees or of vines earlier than six years, before the entry into force of this Regulation, if the date of application is within one year of that date.

The provision of paragraph 1 shall apply to such varieties also in cases where a national plant variety right was granted in one or more Member States before the entry into force of this Regulation.

Notwithstanding Articles 55 and 56, the technical examination of these varieties shall be carried out to the extent possible by the Office on the basis of the available findings resulting from any proceedings for the grant of a national plant variety right, in agreement with the authority before which these proceedings were held.

In the case of a Community plant variety right granted pursuant to paragraphs 1 or 2:

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.

Articles 1, 2, 3, 5 to 29 and 49 to 106 shall apply from 27 April 1995.