Case T-187/06

Ralf Schräder

v

Community Plant Variety Office (CPVO)

(Community plant variety rights – Plant variety SUMCOL 01 – Rejection of the application for a Community plant variety right – Lack of distinctive character of the candidate variety)

Summary of the Judgment

1.      Agriculture – Uniform legislation – Plant variety rights – Conditions for the grant of a Community plant variety right

(Council Regulation No 2100/94, Art. 7(1) and (2))

2.      Agriculture – Uniform legislation – Plant variety rights – Conditions for the grant of a Community plant variety right

(Council Regulation No 2100/94, Art. 7(2))

3.      Agriculture – Uniform legislation – Plant variety rights – Decision whether or not to grant a Community plant variety right

(Council Regulation No 2100/94, Arts 76 and 78)

1.      While the Community Courts recognise that the administration has a margin of appreciation in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data. Not only must the Community judicature establish, in particular, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. However, when conducting such a review, the Community judicature must not substitute its own economic or technical assessment for that of the administration.

The appraisal of the distinctive character of a plant variety in the light of the criteria laid down in Article 7(1) of Regulation No 2100/94 on Community plant variety rights is of a scientific and technical complexity such as to justify a limit to the scope of judicial review. Such an appraisal requires special expertise and technical knowledge, particularly in the fields of botany and genetics. On the other hand, appraisal of whether there exists another variety which is a matter of common knowledge in accordance with the criteria laid down in Article 7(2) of that regulation does not require expertise or special technical knowledge and is not of a complexity such as to justify a limit to the scope of judicial review.

(see paras 61, 63-65)

2.      According to the terms of the International Convention for the Protection of New Varieties of Plants (UPOV Convention), the publication, in scientific journals, of a detailed description of a plant variety is one of the factors which may be taken into account in establishing whether it is a matter of common knowledge. Such a factor may also be taken into account under Article 7(2) of Regulation No 2100/94 on Community plant variety rights. First, that provision does not contain an exhaustive list of the factors which can establish that a reference variety is a matter of common knowledge and that is confirmed by the use of the words ‘in particular’. Secondly, according to the penultimate recital in Regulation No 2100/94, the regulation takes account, in particular, of the UPOV Convention.

(see paras 94, 97, 99)

3.      The Board of Appeal of the Community Plant Variety Office has the power, conferred on it by Article 76 of Regulation No 2100/94 on Community plant variety rights, to carry out an examination of the facts of its own motion by way of the means of taking evidence set out in Article 78 of the said regulation. Consequently, in so far as a measure of inquiry may be decided on of the Board of Appeal’s own motion, without it being required to discuss with the parties beforehand whether the measure is appropriate or necessary, such a measure can also be deferred of the board’s own motion under the same conditions if, in the course of its deliberation, the Board of Appeal makes a different assessment. Such decisions are not adopted by surprise, contrary to an alleged general principle of Community law, but are merely the exercise by the Board of Appeal of the discretion conferred on it by Article 76.

(see para. 121)