JUDGMENT OF THE GENERAL COURT (Third Chamber)
10 September 2015(*)
(Plant varieties — Application for a Community plant variety right for the apple variety Gala Schnitzer — Technical examination — Distinctiveness —Test guidelines — Discretion enjoyed by the President of the CPVO)
In Joined Cases T‑91/14 and T‑92/14,
Schniga Srl, established in Bolzano (Italy), represented by G. Würtenberger and R. Kunze, lawyers,
applicant,
v
Community Plant Variety Office (CPVO), represented by M. Ekvad and F. Mattina, acting as Agents,
defendant,
the other parties to the proceedings before the Board of Appeal of the CPVO, interveners before the General Court, being
Brookfield New Zealand Limited, established in Havelock North (New Zealand), represented by M. Eller, lawyer,
and
Elaris SNC, established in Angers (France), represented by M. Eller,
ACTIONS brought against two decisions of the Board of Appeal of the CPVO of 20 September 2013 (Cases A 004/2007 and A 003/2007) concerning the grant of a Community plant variety right for the Gala Schnitzer apple variety,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood (Rapporteur) and E. Bieliūnas, Judges,
Registrar: I. Dragan, Administrator,
having regard to the applications lodged at the Court Registry 10 February 2014,
having regard to the response of the CPVO lodged at the Court Registry on 27 May 2014,
having regard to the responses of the interveners lodged at the Court Registry on 19 May 2014,
having regard to the reply lodged at the Court Registry on 26 September 2014,
having regard to the order of 1 July 2014 joining Case T‑91/14 and T‑92/14,
further to the hearing on 13 May 2015,
gives the following
Judgment
Legal context
EU law
1 Under Article 6 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1), Community plant variety rights are granted for varieties that are distinct, uniform, stable, and new. The criteria of distinctness, uniformity and stability are expressed by the acronym DUS.
2 Pursuant to Article 7(1) of Regulation No 2100/94, a variety is deemed to be distinct if it is clearly distinguishable, by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application.
3 The criteria of uniformity, stability and novelty are defined in Articles 8, 9 and 10 of Regulation No 2100/94 respectively.
4 The question whether the DUS criteria are met in a particular case is tested in the context of a technical examination conducted in accordance with Articles 55 and 56 of Regulation No 2100/94.
5 Under Article 55(1) of Regulation No 2100/94, where the Community Plant Variety Office (CPVO) has not discovered any impediment to the grant of a Community plant variety right on the basis of a preliminary examination, it is to arrange for the technical examination relating to compliance with the conditions laid down in Articles 7, 8 and 9 (the DUS criteria) to be carried out by the competent office or offices in at least one of the Member States (Examination Offices).
6 Under Article 56(2) of Regulation No 2100/94, the conduct of any technical examinations is to be in accordance with test guidelines issued by the Administrative Council and any instructions given by the CPVO. Such guidelines describe generally, inter alia, the plant material required for the technical examination, how the tests are to be performed, the methods to be applied, the observations to be made, the grouping of the varieties included in the test and the table of characteristics to be examined. In the technical examination, plants of the candidate variety are cultivated alongside those of the reference varieties, which the CPVO and the appointed examination office deem to be those to which the candidate variety comes closest according to the description of the candidate variety in the technical description forming part of the application for grant of a Community plant variety right.
7 Under Article 22 of Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the CPVO (OJ 1995 L 121, p. 37), entitled ‘Decision on test guidelines’:
‘1. Upon proposal of the President of the [CPVO], the Administrative Council shall take a decision as to the test guidelines. The date and the species concerned of the decision shall be published in the Official Gazette referred to in Article 87 of this Regulation.
2. In the absence of a decision of the Administrative Council as to test guidelines, the President of the [CPVO] may take a provisional decision thereon. The provisional decision shall lapse on the date of the decision of the Administrative Council. Where the provisional decision of the President of the [CPVO] deviates from the decision of the Administrative Council, a technical examination started prior to the decision of the Administrative Council shall not be affected; the Administrative Council may decide otherwise, if circumstances so dictate.’
8 According to Article 23 of Regulation No 1239/95, entitled ‘Powers vested in the President of the [CPVO]’:
‘1. Where the Administrative Council takes a decision on test guidelines, it shall include a power whereby the President of the [CPVO] may insert additional characteristics and their expressions in respect of a variety.
2. Where the President of the [CPVO] makes use of the power in paragraph 1, Article 22(2) of this Regulation shall apply mutatis mutandis.’
9 CPVO Protocol TP/14/1 for Distinctness, Uniformity and Stability Tests of 27 March 2003 (Apple) (‘CPVO Protocol TP/14/1’) lays down the guidelines for the technical examination of apple varieties of the species Malus Mill. Before that protocol was adopted, there were no test guidelines or general instructions, within the meaning of Regulation No 2100/94, for those varieties. In accordance with usual practice with regard to technical examinations, the CPVO used to conduct DUS tests for the varieties in question on the basis of the general and technical guidelines adopted by the International Union for the Protection of New Varieties of Plants (UPOV), an intergovernmental organisation set up under the International Convention for the Protection of New Varieties of Plants, adopted in Paris (France) on 2 December 1961.
10 According to Section III 3 of CPVO Protocol TP/14/1, ‘[t]he characteristics to be used in DUS tests and preparations of description shall be those referred to in Annex 1’.
11 According to Section III 5 of CPVO Protocol TP/14/1, ‘[t]he minimum duration of tests (independent growing cycles) will normally include at least two satisfactory crops of fruit’. Section IV of that protocol adds that ‘[c]andidates may meet the DUS standards after two fruiting periods but in some cases three fruiting periods may be required’.
12 According to Section III 6 of CPVO Protocol TP/14/1:
‘(…) an applicant may claim either in the Technical Questionnaire or during the test that a candidate [variety] has a characteristic which would be helpful in establishing distinctness. If such a claim is made and is supported by reliable technical data, a special test may be undertaken providing that a technically acceptable test procedure can be devised. Special tests will be undertaken, with the agreement of the President of CPVO, where distinctness is unlikely to be shown using the characters listed in the protocol.’
International law deriving from UPOV
13 UPOV, of which the European Community has formally been a member since 29 July 2005, has adopted several protocols and guidelines which are relevant for the purposes of the present proceedings.
14 Those include, first of all, Guidelines TG/14/8 for the conduct of tests for distinctness, uniformity and stability of 20 October 1995, which were established by UPOV for the apple variety Malus Mill (‘UPOV Protocol TG/14/8’).
15 Next, UPOV document TG/1/3, entitled ‘General introduction to the examination of distinctness, uniformity and stability and the harmonised descriptions of new varieties of plants’, adopted by UPOV on 19 April 2002 (‘UPOV Protocol TG/1/3’), provides the basis for all the UPOV guidelines for the examination of DUS.
16 According to Section 1.3 of UPOV Protocol TG/1/3, ‘[t]he only binding obligations on members of [UPOV] are those contained in the text of the UPOV Convention itself, and this document must not be interpreted in a way that is inconsistent with the relevant Act for the [UPOV member] concerned’. The purpose of that protocol is ‘to set out the principles which are used in the examination of DUS’ and it states that ‘[this will ensure] that examination of new plant varieties is conducted in a harmonised way throughout the members of [UPOV]’.
17 According to Section 4.2.3 of UPOV Protocol TG/1/3, ‘[t]he characteristics included in the individual Test Guidelines are not necessarily exhaustive and may be expanded with additional characteristics if that proves to be useful and the characteristics meet the conditions set out above’.
18 According to Section 5.3.3.1.1. of UPOV Protocol TG/1/3:
‘One means of ensuring that a difference in a characteristic, observed in a growing trial, is sufficiently consistent is to examine the characteristic on at least two independent occasions. This can be achieved in both annual and perennial varieties by observations made on plantings in two different seasons or, in the case of other perennial varieties, by observations made in two different seasons after a single planting. Guidance on the possible use of other approaches, such as two different environments in the same year, is explored in document TGP/9, “Examining Distinctness.”’
19 According to Section 6.2 of UPOV Protocol TG/1/3:
‘Relevant characteristics of a variety include at least all characteristics used for the examination of DUS or included in the variety description established at the date of grant of protection of that variety’.
20 According to Section 7.2 of UPOV Protocol TG/1/3:
‘The relevant or essential characteristics include at least all characteristics used for the examination of DUS or included in the variety description established at the date of grant of protection of that variety. Therefore, all obvious characteristics may be considered, irrespective of whether they appear in the Test Guidelines or not.’
21 Lastly, new Guidelines TG/14/9 for the conduct of tests for distinctness, uniformity and stability for apple fruit varieties were adopted by UPOV in document UPOV/TG/14/9 of 6 April 2005 (‘UPOV Protocol TG/14/9’). The table of characteristics contained in UPOV Protocol TG/14/9 includes Characteristic No 40, entitled ‘Fruit: width of stripes’, which did not appear in the table of characteristics contained in UPOV Protocol TG/14/8.
Background to the case
22 On 18 January 1999, the Konsortium Südtiroler Baumschuler, the predecessor in title of the applicant, Schniga Srl (both hereinafter referred to as ‘Schniga’), filed an application for a Community plant variety right at the CPVO, pursuant to Regulation No 2100/94 (‘the application for a plant variety right’). That application was registered under number 1999/0033. The plant variety for which the right was sought is the apple variety of the species Malus Mill with the denomination Gala Schnitzer (‘the candidate variety’).
23 In February 1999, the CPVO requested the Examination Office of the Bundessortenamt (German Federal Plant Variety Office, ‘the BSA’) established in Wurzen (Germany) to conduct the technical examination of the candidate variety pursuant to Article 55(1) of Regulation No 2100/94. For the purposes of that examination, the variety Baigent (‘the reference variety’), considered to be closest to the candidate variety, was used as the comparable variety.
24 In 2001, the plant material submitted by Schniga for the technical examination proved to be virus-infected. The technical examination was therefore stopped, and then resumed in spring 2002, after Schniga had been allowed by the CPVO to submit new, virus-free, material of the candidate variety. It continued throughout 2003 and 2004 and the BSA sent interim examination reports, with the result ‘no remarks’, on 3 March 2003 and 22 February 2004, noting that the final examination report would be delivered by the end of 2005.
25 By letter of 18 January 2005, the BSA informed the CPVO as follows:
‘[On] January 13th 2005 we sent you the interim report on the DUS-examination of the [candidate] variety on behalf of the [CPVO]. We consider this candidate variety distinct from the [reference] variety, on the basis of a characteristic which for the time being is not listed in the CPVO [Protocol] TP 14/1, “Flower: colour of base of filament (after anther dehiscence)” [see enclosed photograph].
… [evidence was given] that the concerned characteristic is sufficiently consistent and repeatable, exhibits sufficient variation between varieties and thus enables to establish distinctness …
From this background, the concerned characteristic has also been proposed for inclusion during the revision of [UPOV Protocol TG/14/9], but was dropped off in order to reduce the number of characteristics down to a reasonable amount.
Our intention was supported and we were recommended to send with the interim report a request for authorisation to use this characteristic as an additional one, in accordance with CPVO [Protocol] TP/14/1, paragraph III, chapter 3.’
26 The CPVO sent a further interim report to Schniga on 7 February 2005, again with the result ‘no remarks’.
27 On 19 December 2005, the BSA sent its final technical examination report to the CPVO and to Schniga (‘the final examination report’), stating that the candidate variety was uniform, stable and distinct from the reference variety, on the basis of the characteristic ‘Fruit: Width of stripes’.
28 At point 9, under the heading ‘Date and/or document number of national Test Guidelines’, the final examination report states: ‘2003 03-27 CPVO TP/14/1’.
29 It is clear from points 16 and 17 of the final examination report, concerning the comparison of the candidate variety with the reference variety, that the candidate variety has broad stripes (note 7), whilst the reference variety has narrow to medium stripes (note 4), that assessment being based on the evaluation of an additional characteristic ‘Fruit: width of stripes’, corresponding to characteristic No 40 of UPOV Protocol TG/14/9 of 6 April 2005 (‘the additional characteristic at issue’). The CPVO notes in that regard that the additional characteristic at issue did not appear either in CPVO Protocol TP/14/1 of 27 March 2003 or in UPOV Protocol TG/14/8 of 20 October 1995. It is also noted in points 16 and 17 of the final examination report that the candidate variety is much darker in coloration than the reference variety in the anthocyanin coloration at the base of filaments (after petal dehiscence).
30 By letter of 24 January 2006, the CPVO informed the BSA that incorrect guidelines had been cited in the final examination report and that it was not CPVO Protocol TP/14/1 (adopted in March 2003) but UPOV Protocol TG/14/8 (adopted in 1995) that ought to have been used as the basis for the examination report, for it was the latter that was in force at the date on which the decision was taken to test the candidate variety in January 1999.
31 On 9 February 2006, the BSA sent the CPVO an amended version of the final examination report. Point 17 of that version reads:
‘The variety was tested according to the UPOV [Protocol] TG/14/8 from 1995. The variety description was produced on the basis to the table of characteristics of the [CPVO Protocol] TP/14/1 from 27 March 2003 which came into force during the testing period. This allows the [candidate] variety to become part of the reference collection for varieties with later priority. The variety is distinct, uniform and stable according to both [protocols].’
32 On 5 May 2006, the interveners, Brookfield New Zealand Limited and Elaris SNC, the licensee and the holder, respectively, of the plant variety right relating to the reference variety, lodged with the CPVO, pursuant to Article 59 of Regulation No 2100/94, objections to the grant of the plant variety right sought for the candidate variety. Those objections were based on the earlier right in respect of the reference variety.
33 The pleas in law relied on in support of the objections were: first, the plea covered by Article 61(1)(b) of Regulation No 2100/94 that Schniga’s failure to comply with the requirements for submitting material for the technical examination, laid down by the CPVO, ought to have led the latter to refuse the application for a plant variety right and, second, the plea covered by Article 7 of that regulation, that the candidate variety is not distinct from the reference variety.
34 By decision of 14 December 2006, followed by a corrigendum of 5 February 2007, the President of the CPVO authorised the use of the additional characteristic at issue in order to establish distinctness between the candidate variety and the reference variety. However, that decision makes no mention of the additional characteristic ‘anthacyanin coloration at the basement of the filaments’, also referred to in the final examination report. The decision in question is expressly based on Article 23 of Regulation No 1239/95.
35 By decisions of 26 February 2007, the CPVO committee responsible for deciding on objections to the grant of Community plant variety rights granted the plant variety right sought for the candidate variety (‘the decision granting a plant variety right’) and dismissed the objections (‘the decisions dismissing the objections’). It based its decision on, inter alia, the fact that, ‘for technical reasons’, taking the additional characteristic at issue into account was warranted, even though the latter was not referred to in the protocols in force on the date of the application for a plant variety right.
36 On 11 April 2007, both the interveners filed a notice of appeal with the Board of Appeal of the CPVO, under Articles 67 to 72 of Regulation No 2100/94, against the decision granting a plant variety right and the decisions dismissing the objections.
37 By decision of 21 November 2007 in Joined Cases A 003/2007 and A 004/2007, the Board of Appeal upheld those appeals, cancelled the decision granting a plant variety right and the decisions dismissing the objections, and rejected the application for a plant variety right; the Board gave a decision only on the first of the two pleas outlined in paragraph 33 above, which criticised the CPVO for allowing Schniga to submit new plant material in Spring 2002.
38 Following an action for annulment brought by Schniga before the General Court, the decision of the Board of Appeal of 21 November 2007 was annulled by judgment of 13 September 2010 in Schniga v CPVO — Elaris and Brookfield New Zealand (Gala Schnitzer) (T‑135/08, ECR, EU:T:2010:397). The appeal lodged against that judgment was dismissed by judgment of 19 December 2012 in Brookfield New Zealand and Elaris v CPVO and Schniga (C‑534/10 P, ECR, EU:C:2012:813).
39 The Board of Appeal thereupon resumed examination of the appeals brought by the interveners in the light of the second plea outlined in paragraph 33 above, criticising the CPVO for granting the right sought to a variety that was not distinct. By two decisions of 20 September 2013, in Cases A 003/2007 and A 004/2007 respectively (together, ‘the contested decisions’), the Board of Appeal again cancelled the decision granting a plant variety right and the decisions dismissing the objections and rejected the application for a plant variety right.
40 On the one hand, on the basis of Article 56(2) of Regulation No 2100/94 and Articles 22 and 23 of Regulation No 1239/95, the Board of Appeal held in essence that:
– the protocol and test guidelines in force for the purposes of the technical examination were, at the material times, UPOV Protocol TG/14/8, adopted in 1995, and CPVO Protocol TP/14/1, adopted on 27 March 2003 (paragraph 19 of the contested decisions);
– those protocols do not mention the additional characteristic at issue;
– neither in the technical questionnaire nor during the test period had Schniga submitted a request for the additional characteristic at issue to be taken into account under Section III 6 of CPVO Protocol TP/14/1 (paragraph 21 of the contested decisions);
– the additional characteristic at issue was not mentioned in the BSA’s letter to the CPVO of 18 January 2005 and the BSA had made no request to the CPVO concerning it; it was mentioned for the first time in the final examination report, and subsequently in the decision of the President of the CPVO of 14 December 2006 authorising its use (paragraph 22 of the contested decisions);
– in those circumstances, the fact that the BSA took into account, for the purposes of the technical examination, an additional characteristic not listed in CPVO Protocol TP/14/1 in force at that time constituted an infringement of Section III 3 of that protocol (paragraph 25 of the contested decisions);
– the decision of the President of the CPVO of 14 December 2006 to permit retrospectively the use of that additional characteristic in the technical examination was fundamentally flawed, coming as it did some 12 months after the final examination report, and it cannot be justified, particularly in the light of Article 22(2) of Regulation No 1239/95 (paragraph 26 of the contested decisions).
41 In paragraph 27 of the contested decisions, the Board of Appeal made reference in that connection to its decision of 8 October 2009 in Case A 010/2008 (JEWEL), according to which the use of an additional characteristic must receive the prior approval of the President of the CPVO in order to ensure legal certainty, objectivity in the handling of applications for grant of a plant variety right and the predictability of the behaviour of all the players concerned.
42 On the other hand, the Board of Appeal held, in paragraphs 28 and 29 of the contested decisions, that the technical examination in the light of the additional characteristic at issue had in any event also been flawed by the fact that it had taken place over a period of one year only, that is to say, 2005, as acknowledged by the BSA, whereas all other characteristics had been assessed in the two consecutive growing seasons 2004 and 2005. In its opinion, that constituted a clear infringement of the protocols and guidelines applicable in the present case, in particular, UPOV TG/1/3 and UPOV TG/14/8, which require for apple varieties an examination over at least two fruiting seasons in order to establish uniformity and stability.
43 Consequently, the Board of Appeal found, in paragraphs 30 and 31 of the contested decisions, that the candidate variety could not be held to be legally distinct from the reference variety.
Forms of order sought by the parties
44 Schniga claims that the Court should:
– annul the contested decisions;
– order the CPVO to pay the costs.
45 The CPVO contends that the Court should:
– uphold the actions;
– order each party to bear its own costs or, in the alternative, order the CPVO to bear only its own costs.
46 The interveners claim that the Court should:
– dismiss the actions as inadmissible and unfounded;
– uphold the contested decisions;
– order Schniga to pay the costs.
Admissibility of the actions
47 While not raising a plea of inadmissibility in a separate pleading, the interveners criticise Schniga for not making clear, in the applications themselves, the pleas in law that it intended to rely on. The pleas listed on page 2 of the applications, alleging infringement of Article 61(1)(b), Article 55(4), Article 59(3) and Article 62 of Regulation No 2100/94, are inconsistent with the arguments subsequently set out. It is only in the summaries of the actions, given in Annexes A1 thereto, that it is stated in a manner consistent with the body of the applicant’s arguments that Schniga pleads infringement of Article 7 and Article 56(2) of that regulation and of Article 22(2) and Article 23(1) and (2) of Regulation No 1239/95. However, those summaries are not sufficient to remedy the inconsistencies in the applications themselves, which ought, according to the interveners, to lead to the actions being dismissed as inadmissible.
48 It should be noted in that regard that it is not necessary for a party expressly to indicate the provisions under which he claims to be entitled to bring his action. It is enough for the subject of that party’s application and the main elements of fact and law on which it is based to be set out sufficiently clearly in the application (see judgment of 15 January 2013 in Gigabyte Technology v OHMI - Haskins (Gigabyte), T‑451/11, EU:T:2013:13, paragraph 28 and the case-law cited).
49 That case-law is applicable mutatis mutandis where there is an error in the identification of the provisions on which the pleas in law of an action are based (see judgment in Gigabyte, cited in paragraph 48 above, EU:T:2013:13, paragraphs 27 to 30).
50 In the present case, in the light of the nature of the objections relied on and set out in the body of the applications, it is clear that, by the pleas listed on page 2 of the applications, Schniga in fact intended to plead infringement of Articles 7 and 56(2) of Regulation No 2100/94 and of Articles 22(2) and 23(1) and (2) of Regulation No 1239/95, which is also confirmed by the summary of the actions given in Annex I thereto.
51 Moreover, as the CPVO acknowledged in its reply and as is confirmed by the substantive arguments set out in the responses, Schniga’s arguments are sufficiently clear, precise, consistent and intelligible to enable the other parties to the proceedings to exercise their rights and the Court to exercise its powers of review.
52 It follows from the foregoing that, even though Schniga did not identify correctly, on page 2 of the applications, the provisions on which it bases the pleas relied on in its actions, those actions are admissible.
Substance
53 In support of its actions, Schniga puts forward, in essence, a single plea, alleging infringement of Articles 7 and 56(2) of Regulation No 2100/94 and of Article 22(2) and Article 23(1) and (2) of Regulation No 1239/95. In that context, it maintains in essence that the Board of Appeal was wrong to refuse to take into account the additional characteristic at issue, observed during the technical examination, and based that decision on an incorrect assessment of the discretionary power of the President of the CPVO in that regard. This resulted in both infringement of the ‘principle of due process’ and infringement of Schniga’s substantive right to obtain a plant variety right, as guaranteed by Articles 7 to 10 of Regulation No 2100/94.
54 Schniga divides that argument into two parts, addressing, respectively, the two grounds on which the contested decisions are based.
The first part of the single plea in law, relating to the first ground on which the contested decisions are based
55 Schniga states that, on the date on which the application for a plant variety right was filed, no guidelines within the meaning of Article 56(2) of Regulation No 2100/94 had yet been adopted by the CPVO concerning the species of the plant variety in question. Consequently, the BSA was right to base its technical examination on UPOV Protocol TG/14/8 of 1995.
56 Schniga maintains in that regard that all the UPOV technical protocols are based on the guidelines contained in UPOV Protocol TG/1/3, the wording of which clearly indicates that the list of characteristics in the technical protocols is by no means exhaustive. Any characteristic should thus, in principle, be tested during the examination of distinctness, whether or not it is listed in the relevant technical protocol. The Community having acceded to the UPOV Convention in 2005, that principle is binding under EU law.
57 It follows, moreover, from the wording of Article 6 of Regulation No 2100/94 that the plant variety right sought must be granted if the DUS criteria are fulfilled and if the variety is new. According to Schniga, if it becomes apparent during the technical examination that the variety in question shows an ‘essential characteristic’ which is not listed in the relevant guidelines but does fulfil the DUS criteria, the CPVO is required to take that characteristic into account and the plant variety right must be granted.
58 For that reason, the President of the CPVO must be free to decide at any time, during the technical examination procedure and until the final decision is taken on an application for a plant variety right, to take into account such additional characteristics of the variety concerned. No restriction exists, moreover, either in Regulation No 2100/94 or in Regulation No 1239/95, as to the time when the President of the CPVO may exercise this discretion, which also finds expression in Article 23 of Regulation No 1239/95.
59 Thus, in the present case, inasmuch as the additional characteristic at issue observed by the BSA renders the candidate variety distinct from the reference variety, the CPVO had no choice other than to grant the plant variety right sought.
60 The CPVO supports the arguments put forward by Schniga, regarding, inter alia, the relevance of the UPOV protocols, in particular UPOV Protocol TG/1/3, and adds the following considerations.
61 In the first place, that they must be those in force at the date on which the application for a plant variety right is submitted, not those that might be adopted during the course of the technical examination. According to Article 50(1)(f) of Regulation No 2100/94, such an application must contain a technical description of the variety in question. To that end, the CPVO states that it makes available an application form and a technical questionnaire, which the applicant must fill in, identifying and describing the characteristics of the variety in question. Those characteristics must be identified and described by reference to the corresponding characteristics in the test guidelines in force at the time, which are therefore the only guidelines applicable ratione temporis.
62 The CPVO contends, therefore, that the Board of Appeal was wrong to base the contested decisions on CPVO Protocol TP/14/1, adopted in March 2003, and, as a result, its reasoning was vitiated by errors.
63 In the second place, the CPVO contends, in essence, that the guidelines are ‘rules of practice’ and not ‘rules of law which can be legally binding’.
64 In the third place, as to it allegedly being necessary for the Examination Office to obtain prior authorisation from the President of the CPVO before using an additional characteristic not listed in the relevant guidelines, the CPVO contends that the Board of Appeal misinterpreted Section III 3 of CPVO Protocol TP/14/1. The CPVO also argues that neither Regulation No 2100/94 nor the test guidelines in force require such a request for prior authorisation. The Examination Office is not entitled to take a decision on the insertion of an additional characteristic, but it is its duty to conduct all the tests necessary in order to compare all the observed characteristics of the candidate variety with those of the comparison varieties.
65 In that context, the CPVO considers that if its President were to give such prior authorisation, he would have to assess the relevance of the additional characteristic in question without having all the relevant technical information, which, according to the CPVO, can be obtained only through growing the variety examined and the reference varieties. In those circumstances, the point in time when the decision of authorisation is taken is immaterial, the purpose of the system being to preserve the completeness of the technical examination.
66 In the fourth place, the CPVO criticises the Board of Appeal for making the exercise of the power of the President of the CPVO to take a decision to insert an additional characteristic, pursuant to Article 23 of Regulation No 1239/95, conditional on the existence of a prior request by the applicant for a plant variety right. In so doing, the Board of Appeal turned a mere option, provided for by the relevant guidelines, into a procedural obligation incumbent on the applicant for a plant variety right. It also unlawfully limited the discretionary power of the President of the CPVO.
67 In the fifth place, the CPVO criticises the Board of Appeal for making the exercise by the President of the CPVO of his discretionary power to insert an additional characteristic, pursuant to Article 23 of Regulation No 1239/95, conditional on the existence of a prior request by the national office responsible for the technical examination. By definition, that power may not be limited in time or scope. The CPVO relies, in support of that argument, on the judgment of 15 April 2010 in Schräder v CPVO (C‑38/09 P, ECR, EU:C:2010:196, paragraph 77).
68 Finally, in the sixth place, the CPVO criticises the reference made by the Board of Appeal to its earlier decision in JEWEL, and contends that the Board misinterpreted Article 22(2) of Regulation No 1239/95, read in conjunction with Article 23(2) of that regulation.
69 The interveners dispute those arguments.
70 As a preliminary point, the Court observes that the CPVO is not required systematically to defend the decisions of Boards of Appeal that are contested before this Court, even though the CPVO is automatically designated as defendant under Article 172 of the Court’s Rules of Procedure. It is necessary to apply, to that effect and by analogy, the established case-law applicable in Community trade mark cases to the Office for Harmonisation in the Internal Market (OHIM) in proceedings before the General Court (judgments of 30 June 2004 in GE Betz v OHMI - Atofina Chemicals (BIOMATE), T‑107/02, ECR, EU:T:2004:196, paragraph 34, and 12 July 2006 in Rossi v OHMI - Marcorossi (MARCOROSSI), T‑97/05, EU:T:2006:203, paragraph 16).
71 Accordingly, there is nothing to preclude the CPVO from supporting, as it claims to do, Schniga’s arguments in the present case and from contending that the actions should be upheld.
72 In responding to those parties’ arguments, the Court will examine, as a preliminary matter: (i) the protocols and test guidelines applicable ratione temporis in the present case; (ii) the relationship between the respective protocols and test guidelines of the CPVO and the UPOV; and (iii) the legal nature of the protocols and test guidelines adopted by the Administrative Council of the CPVO and whether they are binding on the President of the CPVO.
73 With regard, in the first place, to the determination of the protocols and test guidelines applicable ratione temporis in the present case, it should be recalled that, in paragraph 19 of the contested decisions, the Board of Appeal stated that those were UPOV Protocol TG 14/8, adopted by UPOV on 20 October 1995, and CPVO Protocol TP 14/1, adopted by the CPVO on 27 March 2003, that is, after the application for a plant variety right had been submitted but before the technical examination had commenced.
74 In the light of the arguments put forward by Schniga and the CPVO challenging that choice, it is appropriate to recall the principles governing the temporal application of new rules of law, in particular the principle tempus regit actum, invoked by the interveners.
75 In its judgment of 26 March 2015 in Commission v Moravia Gas of 26 March 2015 (C‑596/13 P, ECR, EU:C:2015:203, paragraphs 32 and 33), to which this court drew the parties’ attention at the hearing, the Court of Justice stated, in that regard, that a new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application (see judgment of 7 November 2013 in Gemeinde Altrip and Others, C‑72/12, ECR, EU:C:2013:712, paragraph 22 and the case-law cited). In particular, according to settled case-law, procedural rules are generally taken to apply from the date on which they enter into force (see judgment of 11 December 2012 in Commission v Spain, C‑610/10, ECR, EU:C:2012:781, paragraph 45 and the case-law cited), as opposed to substantive rules, which are usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such an effect must be given to them (judgments of 12 November 1981 in Meridionale Industria Salumi and Others, 212/80 to 217/80, ECR, EU:C:1981:270, paragraph 9; 23 February 2006 in Molenbergnatie, C‑201/04, ECR, EU:C:2006:136, paragraph 31; and 11 December 2008 in Commission v Freistaat Sachsen, C‑334/07 P, ECR, EU:C:2008:709, paragraph 44).
76 In the present case, the immediate applicability of the procedural provisions laid down in CPVO Protocol TP/14/1 — as recognised and implemented by the Board of Appeal — appears to be consistent with those principles and that line of case-law, which are, moreover, reflected in Articles 22(2) of Regulation No 1239/95, under which new test guidelines adopted by the Administrative Council of the CPVO are, as a general rule, directly applicable to ongoing examination procedures.
77 Moreover, there is nothing particular about the matter under examination that might justify an exception to the principle that the provisions of the new CPVO Protocol TP/14/1 are immediately applicable to a technical examination procedure initiated under UPOV Protocol TG/14/8. The CPVO’s argument to the contrary, based on the claim that the technical examination is restricted, inter alia, to describing the characteristics of the variety in question by reference to the corresponding characteristics in the test guidelines in force, is not convincing. Article 23(1) of Regulation No 1239/95 provides that the President of the CPVO has the power to insert additional characteristics and their expressions in respect of a variety and these are, in principle, immediately applicable, unless otherwise decided where circumstances so dictate, by application mutatis mutandis of Article 22(2) of that regulation. Moreover, it is the CPVO’s principal argument in these proceedings that the essential parameters of that description, in particular the list of the genotypical characteristics to be taken into account, may be altered at any stage in the procedure by the President of the CPVO in the exercise of his broad power of discretion. The CPVO’s argument is also at odds with Sections 6.2 and 7.2 of UPOV Protocol TG/1/13, which, it is common ground, forms the basis of all the UPOV guidelines for the examination of DUS. According to those sections, the relevant characteristics for the purpose of the examination of DUS are determined by reference to the variety description established ‘at the date of grant of protection’ applied for, not by reference to the variety description established at the date when the application is lodged.
78 The claim made by the CPVO that the written agreement under which the CPVO entrusted the technical examination of the candidate variety to the BSA stipulated that, in the absence of any CPVO test guidelines, reference should be made to the UPOV guidelines, is not relevant. Such a stipulation does not prejudice the applicability of any test guidelines that may be adopted by the CPVO in the course of the technical examination.
79 As regards, in the second place, the relationship between CPVO Protocol TP/14/1, at issue in the present case, and the UPOV Protocols, it should be noted that, while the Community has been a member of UPOV since 29 July 2005, that does not mean that, since it became a member, the UPOV Protocols necessarily take precedence over the protocols drawn up by the CPVO in the hierarchy of norms. Reference should be made in that regard to the wording of Section 1.3 of UPOV Protocol TG/1/3, which makes it clear that the protocols and guidelines established by the UPOV form a series of recommendations that are not legally binding and are intended simply to harmonise the technical examinations conducted by the competent authorities.
80 It follows that Schniga’s argument that the UPOV guidelines are, of necessity, binding on the European Union must be rejected as unfounded. In the present case, it is therefore necessary, where there is divergence between CPVO Protocol TP/14/1 and the UPOV Protocols, to give precedence to the former.
81 With regard, in the third place, to the legal nature of the protocols and test guidelines adopted by the Administrative Council of the CPVO and whether they are binding on the President of the CPVO, it is true that, in view of the scientific and technical complexity of the matter, the EU judicature has recognised that the CPVO enjoys a wide measure of discretion in conducting the technical examination of a variety for which an application for a Community plant variety right has been made, which is, moreover, entrusted to one of the competent national bodies in accordance with Article 55 of Regulation No 2100/94, and that discretion extends, inter alia, to verifying whether that variety has distinctive character for the purpose of Article 7(1) of that regulation (see, to that effect, judgment of 19 November 2008 in Schräder v CPVO (SUMCOL 01), T‑187/06, ECR, EU:T:2008:511, paragraphs 59 to 64, confirmed by the judgment in Schräder v CPVO, cited in paragraph 67 above, EU:C:2010:196, paragraph 77).
82 In particular, Article 23(2) of Regulation No 1239/95 gives the President of the CPVO the power to insert additional characteristics and their expressions in respect of a variety where the Administrative Council takes a decision as to the test guidelines. Moreover, under Article 22(2) of that regulation, in the absence of a decision by the Administrative Council as to test guidelines, the President of the CPVO may take a provisional decision in that regard.
83 The fact nevertheless remains that the protocols and test guidelines, which are adopted by the Administrative Council acting on a proposal from the President of the CPVO, are akin to legal rules which the CPVO has imposed on itself in order to ensure that technical examinations are properly conducted under conditions objectively established in advance and that the CPVO is therefore required, in principle, to comply with them in ongoing procedures before it.
84 The binding nature of those guidelines is apparent, first and foremost, from Article 56(2) of Regulation No 2100/94. That is also the reason why, in order to ensure legal certainty and equal treatment of the operators concerned, those guidelines must be published in the Official Gazette of the CPVO as referred to in Article 87 of the implementing regulation, in accordance with Article 22(1) of the said regulation. That the legislature was concerned to ensure, in that context, that the principle of due process was observed in the conduct of technical examinations is further confirmed by the detailed rules on the applicability of the guidelines set out in Article 22(2) of Regulation No 1239/95. Similarly, under Article 27 of that regulation, the CPVO may consider a technical examination report carried out in a Member State pursuant to Article 55(1) of Regulation No 2100/94 to constitute a sufficient basis for a decision only if, inter alia, ‘the technical examination has been carried out in a manner consistent with the designations by the Administrative Council … and in accordance with the test guidelines issued by the Administrative Council, or on general instructions given by the latter, pursuant to Article 56(2) of [Regulation No 2100/94] and Articles 22 and 23 of [Regulation No 1239/95]’.
85 It is relevant, in this context, also to refer to the case-law to the effect that, in adopting rules of conduct designed to produce external effects and announcing, by publishing them, that they will henceforth apply to the cases to which they relate, the administration in question imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations (see, to that effect, judgements of 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraphs 209 to 211, and 11 September 2008 in Germany and Others v Kronofrance, C‑75/05 P and C‑80/05 P, ECR, EU:C:2008:482, paragraph 60, and the case-law cited).
86 It follows from the foregoing that neither the CPVO nor its President can validly argue that they may, on a case-by-case basis and in the exercise of the broad powers of discretion they enjoy with regard to technical examinations, depart from the guidelines and instructions in force at the material time. Observance of the procedural safeguards established by the test guidelines is, on the contrary, especially important as the CPVO enjoys such powers of discretion in accordance with the case-law cited in paragraph 81 above.
87 Those three principles being established, the Board of Appeal did not err in finding, at paragraph 25 of the contested decisions, that the BSA’s taking into account, for the purposes of the technical examination, an additional characteristic not listed in CPVO Protocol TP/14/1 in force at that time constituted an infringement of Section III 3 of that protocol.
88 First, it is common ground that the additional characteristic at issue is not mentioned in Annex I to CPVO Protocol TP/14/1.
89 Second, as the Board of Appeal was correct to observe at paragraph 21 of the contested decisions, neither in the technical questionnaire nor during the test period did Schniga submit a request for the additional characteristic at issue to be taken into account under Section III 6 of CPVO Protocol TP/14/1.
90 Third, in the present case, no ‘technically acceptable test procedure’ for special tests within the meaning of Section III 6 of CPVO Protocol TP/14/1 was devised by the CPVO or by the BSA in the course of the technical examination and the tests were conducted without the agreement of the President of the CPVO, within the meaning of that point, even though it is apparent from the documents before the Court that distinctness could not have been established by referring to the characteristics listed in Annex I to that protocol.
91 Fourth, as the Board of Appeal was correct to observe at paragraph 22 of the contested decisions, the additional characteristic at issue was not mentioned in the BSA’s letter to the CPVO of 18 January 2005, in which the only additional characteristic referred to was ‘Flower: colour of base of filament’, which was not, ultimately, reproduced in the decision of the President of the CPVO of 14 December 2006 authorising the use of the additional characteristic at issue. The additional characteristic at issue was mentioned for the first time in the final examination report and, subsequently, in that decision.
92 In the light of the foregoing considerations, the Board of Appeal did not err in finding, at paragraph 26 of the contested decisions, that the decision of the President of the CPVO of 14 December 2006 to permit retrospectively the use of the additional characteristic at issue in the technical examination was fundamentally flawed, coming as it did some 12 months after the final examination report.
93 Even if it were accepted, as claimed by Schniga and the CPVO, that additional characteristics may be inserted by the President of the CPVO of his own motion, pursuant to Article 23 of Regulation No 1239/95, without any such request having been made by the applicant for a plant variety right under Section III 6 of CPVO Protocol TP/14/1, the fact remains that it is still necessary, in such a case, to comply with the conditions and procedural requirements set out in point 6. In that regard, the Court fully endorses the decision-making practice of the Board of Appeal referred to at paragraph 27 of the contested decisions whereby the use of an additional characteristic by a national office responsible for the technical examination must receive the prior approval of the President of the CPVO ‘in order to ensure legal certainty, objectivity in the handling of applications for grant of a plant variety right and the predictability of the behaviour of all the players concerned’.
94 In the light of all the foregoing considerations, none of the objections put forward by Schniga and the CPVO in respect of the first ground on which the contested decisions are based are well founded and the first part of the single plea in law must therefore be rejected.
The second part of the single plea in law, relating to the second ground on which the contested decisions are based
95 Schniga complains that the Board of Appeal wrongly held, in paragraph 28 of the contested decisions, that the results of the technical examination were flawed because, as regards the additional characteristic at issue, that examination related to one year only, contrary to the relevant guidelines. In the present case, the CPVO ascertained that the characteristics establishing distinctness were uniform and stable on the basis of the findings made during the ‘years following 2005’, as was confirmed by the BSA representative during the proceedings before the Board of Appeal.
96 The CPVO concurs with those arguments and states that, by e-mail of 8 August 2008, the BSA confirmed to it that the additional characteristic at issue had been assessed ‘even after the submission of the final report in the years 2006 and 2007’. Thus, according to the CPVO, the technical examination concerning the additional characteristic at issue was conducted for two full years before the decision granting a plant variety right was adopted on 26 February 2007.
97 The interveners dispute those arguments.
98 In that regard, the Court observes, first, that where some of the grounds given in a decision are, by themselves, sufficient to justify that decision in law, errors which might invalidate other grounds of the decision do not have any effect on its operative part (see judgment of 14 December 2005 in Honeywell v Commission, T‑209/01, ECR, EU:T:2005:455, paragraph 48 and the case-law cited).
99 Moreover, where the operative part of a decision is based on several pillars of reasoning, each of which would in itself be sufficient to justify that operative part, that decision should, in principle, be annulled only if each of those pillars is vitiated by illegality. In such a case, an error or other illegality which affects only one of the pillars of reasoning cannot be sufficient to justify annulment of that decision because that error could not have had a decisive effect on the operative part adopted by the institution in question (see judgment in Honeywell v Commission, cited in paragraph 67 above, EU:T:2005:455, paragraph 49 and the case-law cited).
100 In the present case, it is apparent from the examination of the first part of the single plea in law that the first ground on which the contested decisions are based is not vitiated by illegality. That ground is thus sufficient to validate in law the contested decisions, by which the Board of Appeal annulled the decision granting a plant variety right and the decisions dismissing the objections and rejected the application for a plant variety right.
101 Accordingly, the second part of the single plea in law may be rejected at the outset as ineffective (see, to that effect, judgment in Honeywell v Commission, cited in paragraph 67 above, EU:T:2005:455, paragraph 51).
102 The considerations set out below are therefore given for the sake of completeness only.
103 As the Board of Appeal observed in paragraphs 28 and 29 of the contested decisions, it is common ground that the technical examination in the light of the additional characteristic at issue had taken place over a period of one year only, that is to say, 2005, whereas all other characteristics had been assessed in the two consecutive growing seasons 2004 and 2005. That constituted a clear infringement of Section III 5 of CPVO Protocol TG/14/1 and Section IV of that protocol. It also constituted an infringement of Section 5.3.3.1.1. of UPOV Protocol TG/1/3.
104 With regard to the argument put forward by Schniga and the CPVO that the BSA was able to remedy the situation by continuing to examine the candidate variety during the ‘years following 2005’, namely, in 2006 and 2007 and therefore after the final technical examination report had been submitted on 19 December 2005 — indeed, after the grant of the plant variety right sought on 26 February 2007 — the interveners are correct to claim that that argument is at odds with the fundamental principles of the rule of law, in particular the principles of due process and legal certainty. It cannot be accepted, in the light of those principles, that a plant variety right might be granted ‘in advance’ (as it were), by postponing the completion of the technical examination to a later date.
105 As none of the objections put forward by Schniga and the CPVO in respect of the second ground on which the contested decisions are based are well founded, the second part of the single plea in law must, in any event, be rejected and the actions therefore dismissed in their entirety.
Costs
106 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
107 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the interveners, in accordance with the form of order sought by the interveners. The CPVO is to bear its own costs, in accordance with the form of order sought by the CPVO.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the actions;
2. Orders Schniga Srl to pay the costs incurred by Brookfield New Zealand Limited and by Elaris SNC and to pay its own costs. The Community Plant Variety Office (CPVO) is to bear its own costs.
Papasavvas | Forwood | Bieliūnas |
Delivered in open court in Luxembourg on 10 September 2015.
[Signatures]