LegalizeCommission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (recast)
TITLE I
PARTIES TO PROCEEDINGS, OFFICE AND EXAMINATION OFFICES
CHAPTER I
Parties to proceedings
Article 1
Parties to proceedings
The following persons may be party to proceedings before the Community Plant Variety Office, hereinafter referred to as ‘the Office’:
(a) the applicant for a Community plant variety right;
(b) the objector referred to in Article 59(2) of Regulation (EC) No 2100/94, hereinafter referred to as ‘the basic Regulation’;
(c) the holder or holders of the Community plant variety right, hereinafter referred to as ‘the holder’;
(d) any person whose application or request is a prerequisite for a decision to be taken by the Office.
Article 2
Designation of parties to proceedings
The President of the Office shall determine the details concerning the address including any relevant details of other data communication links.
The Office may permit derogations from the provisions of the first sentence of the first subparagraph.
Article 3
Languages of parties to proceedings
A successor in title as referred to in Article 23(1) of the basic Regulation may however request that another official language of the European Union be used during future proceedings, provided that such request is submitted upon the entry of the transfer of a Community plant variety right into the Register of Community Plant Variety Rights.
Article 4
Languages in oral proceedings and in the taking of evidence
Parties to the proceedings, a witness or expert, and the members of the staff of the Office or the Board of Appeal may agree that during the oral proceedings only one of the official languages of the European Union shall be used.
The Office may allow derogations from the first subparagraph.
Article 5
Translation of documents of parties to proceedings
Parties to proceedings and the members of the staff of the Office or of the Board of Appeal may agree to have a translation of a document in only one of the official languages of the European Union.
CHAPTER II
The Office
Section 1
Committees of the Office
Article 6
Qualification of members of the Committees
Article 7
Decisions of the Committee
A Committee shall, besides taking the decisions referred to in Article 35(2) of the basic Regulation, deal with:
— the non-suspension of a decision pursuant to Article 67(2) of the basic Regulation,
— interlocutory revision pursuant to Article 70 of the basic Regulation,
— the restitutio in integrum pursuant to Article 80 of the basic Regulation, and
— the award of costs pursuant to Article 85(2) of the basic Regulation and Article 75 of this Regulation.
Article 8
Power of individual members of the Committees
The rapporteur may in particular:
(a) perform the duties under Article 25 and monitor the submission of reports by the Examination Offices, referred to in Articles 13 and 14;
(b) pursue the procedure within the Office, including the communication of any deficiencies to be remedied by a party to proceedings and the setting of time limits; and
(c) ensure a close consultation and exchange of information with the parties to the proceedings.
Article 9
Role of the President
The President of the Office shall ensure the consistency of decisions taken under his authority. He shall in particular lay down the conditions under which decisions on objections lodged pursuant to Article 59 of the basic Regulation, and also decisions pursuant to Articles 61, 62, 63 or 66 of that Regulation, are taken.
Article 10
Consultations
Members of the staff of the Office may use, free of charge, the premises of national agencies referred to in Article 30(4) of the basic Regulation and those of Examination Offices and agencies referred to in Article 13 and Article 14, respectively, of this Regulation, for holding periodical consultation days with parties to proceedings and third persons.
Section 2
Boards of Appeal
Article 11
Boards of Appeal
Article 12
Registry attached to a Board of Appeal
The employees of the registry shall in particular be responsible for:
— drawing up the minutes of oral proceedings and taking evidence pursuant to Article 63 of this Regulation,
— apportioning costs pursuant to Article 85(5) of the basic Regulation and Article 76 of this Regulation, and
— confirming any settlement of costs referred to in Article 77 of this Regulation.
CHAPTER III
Examination Offices
Article 13
Designation of an Examination Office referred to in Article 55(1) of the basic Regulation
Should an Examination Office make use of technically qualified bodies referred to in Article 56(3) of the basic Regulation, the Examination Office shall ensure compliance with the relevant requirements, guidelines and procedures of the Office.
The Office shall conduct an audit to check whether the Examination Office complies with the relevant requirements, guidelines and procedures of the Office. Following an audit, the Office shall draw up an audit report.
The Administrative Council shall base its decision on the designation of an Examination Office on the audit report drawn up by the Office.
For the extension of the scope of an existing designation of an Examination Office initiated by an Examination Office, the Administrative Council shall base its decision on an audit report drawn up by the Office.
Based on a request by an Examination Office, to which the Office agrees, the scope of an existing designation of an Examination Office may be reduced. The Office shall implement the reduction in the agreement referred to in Article 15(1).
The Office may develop guiding principles concerning the use by Examination Offices of plant material that has been submitted for distinctiveness, uniformity and stability testing in the framework of applications for a Community plant variety right. Such guiding principles may include conditions under which such plant material may be transferred between Examination Offices.
Article 14
Designation of an agency or establishment of a sub-office referred to in Article 55(2) of the basic Regulation
Article 15
Procedure for designation
In the circumstances set out in paragraph 3, the Examination Office shall take into account costs incurred by such a body. The Office shall lay down the format of breakdown of the costs. If, after two requests from the Office, the Examination Office fails to provide the Office with the breakdown of the costs within the deadline established by the Office, the fee referred to in paragraph 4 may be reduced by 20 %.
TITLE II
SPECIFIC PROCEEDINGS BEFORE THE OFFICE
CHAPTER I
Application for a Community plant variety right
Section 1
Actions of the applicant
Article 16
Filing of the application
Where the application is filed at the Office it may be filed in paper format or by electronic means. Where it is filed at the national agencies or sub-offices it shall be filed in paper format in duplicate.
The information sent to the Office in accordance with Article 49(1)(b) of the basic Regulation shall contain:
— particulars for identifying the applicant and, where appropriate, his procedural representative,
— the national agency or sub-office at which the application for a Community plant variety right was filed, and
— the provisional designation of the variety concerned.
The Office shall make available the following forms free of charge:
(a) an application form and a technical questionnaire, for the purposes of filing an application for a Community plant variety right;
(b) a form for forwarding the information referred to in paragraph 2, indicating the consequences of any failure of the forwarding.
Article 17
Receipt of the application
Article 18
Conditions laid down in Article 50(1) of the basic Regulation
An application complies with the condition laid down in Article 50(1)(j) of the basic Regulation only if the date and the country given in any earlier application for the variety are, to the best of the applicant's knowledge, indicated in respect of:
(a) an application for a property right in respect of the variety, in a Member State or a member of the International Union for the Protection of New Varieties of Plants (‘UPOV’); and
(b) an application for official acceptance of the variety for certification and marketing where official acceptance includes an official description of the variety.
Article 19
Conditions referred to in Article 50(2) of the basic Regulation
The applicant shall provide the following information in the application form or in the technical questionnaire referred to in Article 16(3)(a), where relevant:
(a) the identity and the contact details of the applicant, his designation as a party to proceedings referred to in Article 2 and, where appropriate, the name and address of the procedural representative;
(b) where the applicant is not the breeder, the name and address of the breeder and his entitlement to apply for the Community plant variety right;
(c) the scientific name of the genus, species or subspecies to which the variety belongs, and the common name;
(d) the variety denomination or, in the absence thereof, the provisional designation;
(e) the location in which the variety was bred or discovered and developed, and the maintenance and the propagation of the variety, including information on the characteristics, the cultivation of any other variety or varieties the material of which has to be used repeatedly for the production of the variety. For material to be used repeatedly for the production of the variety, the applicant may provide the information concerning such material, if he requests so, in the form provided by the Office pursuant to Article 86;
(f) the characteristics of the variety, including the state of expression for certain characteristics based on the technical questionnaire referred to in Article 16(3)(a);
(g) where appropriate, similar varieties and differences from those varieties, which, in the applicant's opinion, are relevant for the technical examination;
(h) additional information that may help distinguishing the variety, including representative colour photos of the variety and other information on the plant material to be examined during the technical examination;
(i) where appropriate, characteristics that have been genetically modified, where the variety concerned represents a genetically modified organism within the meaning of Article 2(2) of Directive 2001/18/EC of the European Parliament and of the Council (1);
(j) the date of any sale or first disposal to others, of varietal constituents or harvested material of the variety, to exploit the variety within the territory of the European Union or in one or more third countries, or to assess whether a variety is new as referred to in Article 10 of the basic Regulation, or a declaration that such sale or first disposal has not yet occurred;
(k) the designation of the authority applied to and the file number of the applications referred to in Article 18(3) of this Regulation;
(l) existing national or regional plant variety rights that have been granted to the variety;
(m) whether an application for the variety concerned has been submitted for listing or registration or a decision has been taken pursuant to Article 5 of Council Directive 68/193/EEC (2), Article 10 of Council Directive 2002/53/EC (3), Article 10 of Council Directive 2002/55/EC (4) and Article 5 of Commission Implementing Directive 2014/97/EU (5).
Article 20
Claiming priority
If the applicant claims a right of priority for an application within the meaning of Article 52(2) of the basic Regulation, which is not the earliest of those to be indicated pursuant to the first indent of Article 18(3) of this Regulation, the Office shall state that a priority date can only be given to such earlier application. Where the Office has issued a receipt including the date of filing of an application which is not the earliest of those to be indicated, the priority date notified shall be considered void.
Article 21
Entitlement to a Community plant variety right during proceedings
Section 2
Conduct of the technical examination
Article 22
Decision on test guidelines
Article 23
Powers vested in the President of the Office
Article 24
Notification by the Office of the Examination Office
In accordance with Article 55(3) of the basic Regulation, the Office shall transmit to the Examination Office the following documents relating to the variety in electronic format:
(a) the application form, the technical questionnaire and each additional document submitted by the applicant containing information needed for the conduct of the technical examination;
(b) the forms filled out by the applicant pursuant to Article 86 of this Regulation;
(c) documents relating to an objection based on the contention that the conditions laid down in Articles 7, 8 and 9 of the basic Regulation have not been met.
Article 25
Cooperation between the Office and the Examination Office
The staff of the Examination Office responsible for the technical examination and the rapporteur designated in accordance with Article 8(1) shall cooperate in all phases of a technical examination. Cooperation shall cover at least the following aspects:
(a) the monitoring of the conduct of the technical examination, including the inspection of the locations of the test plots and the methods used for the tests by the rapporteur;
(b) without prejudice to other investigations by the Office, information from the Examination Office about details of any previous disposal of the variety; and
(c) the submission by the Examination Office to the Office of interim reports on each growing period.
Article 26
Form of the examination reports
Article 27
Other examination reports
An examination report on the results of any technical examination which has been carried out or is in the process of being carried out for official purposes in a Member State by one of the offices responsible for the species concerned pursuant to Article 55(1) of the basic Regulation may be considered by the Office to constitute a sufficient basis for decision, provided that:
(a) the material submitted for the technical examination has complied, in quantity and quality, with any standards that may have been laid down pursuant to Article 55(4) of the basic Regulation;
(b) the technical examination has been carried out in a manner consistent with the designation by the Administrative Council pursuant to Article 55(1) of the basic Regulation and with the requirements referred to in Article 13(1a) of this Regulation and has been conducted in accordance with the test guidelines issued and any general instructions given, pursuant to Article 56(2) of the basic Regulation and Articles 22 and 23 of this Regulation;
(c) the Office has had the opportunity to monitor the conduct of the technical examination concerned; and
(d) where the final report is not immediately available, the interim reports on each growing period are submitted to the Office prior to the examination report.
An examination report on the results of a technical examination that has been carried out or is in the process of being carried out for official purposes in a third country or in the territory of a regional organisation that is a member of the UPOV or that is a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’), may be considered by the Office to constitute a sufficient basis for decision, provided that the technical examination complies with the conditions laid down in a written agreement between the Office and the competent authority of such third country or regional organisation. Such conditions shall at least include:
(a) conditions relating to the material, as referred to in point (a) of paragraph 1;
(b) the condition that the technical examination has been conducted in accordance with the test guidelines issued, or general instructions given, pursuant to Article 56(2) of the basic Regulation and Article 22 of this Regulation;
(c) the condition that the Office has had the opportunity to assess the suitability of facilities for carrying out a technical examination for the species concerned in that third country or in the territory of that regional organisation;
(d) conditions relating to the availability of reports, as laid down in point (d) of paragraph 1;
(e) the condition that the third country has adequate experience in testing the genera or species concerned; and
(f) the condition that the written agreement is concluded with the consent of the Administrative Council.
The Office may request a competent authority of a third country or of a regional organisation that is a member of the UPOV or is a party to TRIPS to perform the technical examination, provided that a written agreement has been signed between the Office and that competent authority and provided that one of the following conditions applies:
(a) there is no possibility to realise the technical examination for the specific species in an Examination Office in the European Union, and an examination report on the results of a technical examination, referred to in paragraph 4, is not available or is not expected to become available;
(b) an examination report on the results of a technical examination referred to in paragraph 4 is expected to be made available but the conditions established under paragraph 4 to conduct the technical examination are not fulfilled.
The written agreement referred to in paragraph 5 shall be concluded with the consent of the Administrative Council, based on the following conditions:
(a) conditions relating to the material, as referred to in point (a) of paragraph 1;
(b) the condition that the technical examination will be conducted in accordance with the test guidelines issued, or general instructions given, pursuant to Article 56(2) of the basic Regulation and Article 22 of this Regulation;
(c) the condition that the Office has had the opportunity to assess the suitability of facilities for carrying out a technical examination for the species concerned in that third country or in the territory of that regional organisation and to monitor the technical examination concerned;
(d) conditions relating to the availability of reports, as laid down in point (d) of paragraph 1;
(e) the condition that the third country has adequate experience in testing the genera or species concerned.
Section 3
Variety denomination
Article 28
Proposal for a variety denomination
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