OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 27 October 2022 (1)
Case C‑522/21
MS
v
Saatgut-Treuhandverwaltungs GmbH
(Request for a preliminary ruling from the Pfälzisches Oberlandesgericht Zweibrücken (Palatine Higher Regional Court, Zweibrücken, Germany))
(Reference for a preliminary ruling – Intellectual property – Protection of plant varieties – Regulation (EC) No 2100/94 – Derogation provided for in Article 14(3) – Article 94(2) – Infringement – Right to compensation – Regulation (EC) No 1768/95 – Article 18(2) – Compensation for damage – Lump sum calculated on the basis of quadruple the licence fee – Competence of the Commission – Assessment of validity)
I. Introduction
1. This reference for a preliminary ruling has arisen in the context of a dispute between a group of holders of plant variety rights and a farmer concerning the calculation of the amount of damage suffered as a result of the illegal planting by the farmer of one of the protected varieties.
2. The referring court seeks an assessment of the validity of Article 18(2) of Regulation (EC) No 1768/95 (2) (‘the provision at issue’), which sets a minimum lump sum for damages, in the light of the first sentence of Article 94(2) of Regulation (EC) No 2100/94. (3)
3. In so far as the doubts of that court stem from the Court’s interpretation of that provision of Regulation No 2100/94, the present case gives the Court the opportunity to revisit the interpretation of that provision.
II. Legal framework
A. European Union law
1. Regulation No 2100/94
4. Article 13 of Regulation No 2100/94, entitled ‘Rights of the holder of a Community plant variety right and prohibited acts’, provides in paragraphs 1 to 3:
‘1. A Community plant variety right shall have the effect that the holder or holders of the Community plant variety right, hereinafter referred to as “the holder”, shall be entitled to effect the acts set out in paragraph 2.
2. Without prejudice to the provisions of Articles 15 and 16, the following acts in respect of variety constituents, or harvested material of the protected variety, both referred to hereinafter as “material”, shall require the authorisation of the holder:
(a) production or reproduction (multiplication);
…
The holder may make his authorisation subject to conditions and limitations.
3. The provisions of paragraph 2 shall apply in respect of harvested material only if this was obtained through the unauthorised use of variety constituents of the protected variety, and unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents.’
5. Article 14 of that regulation, entitled ‘Derogation from Community plant variety right’, reads as follows:
‘1. Notwithstanding Article 13(2), and for the purposes of safeguarding agricultural production, farmers are authorised to use for propagating purposes in the field, on their own holding, the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety, which is covered by a Community plant variety right.
2. The provisions of paragraph 1 shall only apply to agricultural plant species of:
…
(b) Cereals:
…
Hordeum vulgare L. – Barley
…
3. Conditions to give effect to the derogation provided for in paragraph 1 and to safeguard the legitimate interests of the breeder and of the farmer, shall be established, before the entry into force of this Regulation, in implementing rules pursuant to Article 114, on the basis of the following criteria:
– there shall be no quantitative restriction of the level of the farmer’s holding to the extent necessary for the requirements of the holding,
– the product of the harvest may be processed for planting, either by the farmer himself or through services supplied to him, without prejudice to certain restrictions which Member States may establish regarding the organisation of the processing of the said product of the harvest, in particular in order to ensure identity of the product entered for processing with that resulting from processing,
– small farmers shall not be required to pay any remuneration to the holder; small farmers shall be considered to be:
…
– other farmers shall be required to pay an equitable remuneration to the holder, which shall be sensibly lower than the amount charged for the licensed production of propagating material of the same variety in the same area [“licensed production”]; the actual level of this equitable remuneration may be subject to variation over time, taking into account the extent to which use will be made of the derogation provided for in paragraph 1 in respect of the variety concerned,
– monitoring compliance with the provisions of this Article or the provisions adopted pursuant to this Article shall be a matter of exclusive responsibility of holders; in organising that monitoring, they may not provide for assistance from official bodies,
– relevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services; relevant information may equally be provided by official bodies involved in the monitoring of agricultural production, if such information has been obtained through ordinary performance of their tasks, without additional burden or costs. These provisions are without prejudice, in respect of personal data, to Community and national legislation on the protection of individuals with regard to the processing and free movement of personal data.’
6. Article 94 of that regulation, entitled ‘Infringement’, provides:
‘1. Whosoever:
(a) effects one of the acts set out in Article 13(2) without being entitled to do so, in respect of a variety for which a Community plant variety right has been granted; …
…
may be sued by the holder to enjoin such infringement or to pay reasonable compensation or both.
2. 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.’
2. Regulation No 1768/95
7. Regulation No 1768/95 was adopted on the basis of Article 114 of Regulation No 2100/94.
8. Article 18 of Regulation No 1768/95, entitled ‘Special civil law claims’, provides in paragraph 2:
‘If such person has repeatedly and intentionally not complied with his obligation pursuant to Article 14(3) 4th indent of [Regulation No 2100/94], in respect of one or more varieties of the same holder, the liability to compensate the holder for any further damage pursuant to Article 94(2) of [Regulation No 2100/94] shall cover at least a lump sum calculated on the basis of the quadruple average amount charged for the licensed production …, without prejudice to the compensation of any higher damage.’
III. The facts giving rise to the dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
9. Saatgut Treuhandverwaltungs GmbH (‘STV’) is an association of holders of plant variety rights which has been tasked by its members to defend their rights and, in particular, to assert rights to information and entitlements to payment rights in its own name.
10. MS, the applicant in the main proceedings, is a farmer against whom an action has been brought at first instance by STV in order to obtain, inter alia, information on the unlawful planting of the ‘KWS Meridian’ winter barley variety, which is protected under EU law, which the latter carried out during the four marketing years 2012/2013 to 2015/2016.
11. The applicant in the main proceedings provided for the first time, during the proceedings between himself and STV, the figures relating to the processing services in respect of those seeds concerning those four marketing years, which were 24.5, 26, 34 and 45.4 quintals respectively.
12. Following the judgment at first instance, the applicant in the main proceedings paid, a posteriori, the average amount of the fee charged for licensed production for the marketing year 2015/2016 as reasonable compensation, pursuant to Article 94(1) of Regulation No 2100/94. (4)
13. STV sought the payment of additional damages, in the amount of quadruple the average amount of the fee charged for licensed production for the marketing years 2013/2014, 2014/2015 and 2015/2016, (5) as compensation under Article 94(2) of Regulation No 2100/94, read in conjunction with the provision at issue, by deducting the amount of the ‘simple’ licence fee for the production of propagating material of the protected variety, paid a posteriori by the applicant in the main proceedings.
14. The applicant in the main proceedings contested STV’s entitlement to such a payment. In that regard, he maintained that the damage that the unauthorised conduct caused STV had been made good by the payment of the ‘simple’ licence fee rather than the planting fee, in accordance with Article 5(5) of Regulation No 1768/95. He also submitted that the imposition of general and additional punitive damages was not compatible with the case-law of the Court.
15. By judgment of 4 December 2020, the Landgericht Kaiserslautern (Regional Court, Kaiserslautern, Germany) essentially upheld STV’s claim, (6) referring to the ‘clear wording’ of the provision at issue.
16. The applicant in the main proceedings appealed against that judgment before the Pfälzisches Oberlandesgericht Zweibrücken (Palatine Higher Regional Court, Zweibrücken, Germany). In his view, the provision at issue does not comply with Article 94(2) of Regulation No 2100/94 and must be declared invalid. He states that that second provision cannot be understood as permitting the award to the holder of punitive damages on a lump-sum basis, in the present case of quadruple the amount of the licence fee, but should be understood as meaning that the damages should correspond as closely as possible to the damage actually suffered by the holder and arising with certainty from the infringement of his right.
17. STV submits that the provision at issue does not infringe the requirements of Article 94(2) of Regulation No 2100/94 and is consistent with the case-law of the Court. In view of the repeated and intentional infringement of its rights as a holder, setting a minimum level of compensation as a lump sum which is quadruple the amount of the ‘simple’ licence fee would, in its view, constitute fair and reasonable compensation.
18. The referring court considers that its decision depends exclusively on the validity of the provision at issue. It observes that that provision, by which the European Commission set a minimum level of compensation as a lump sum which is quadruple the amount of the licence fee, could infringe the first sentence of Article 94(2) of Regulation No 2100/94 and be annulled on that basis.
19. The referring court notes that Article 94(1) of Regulation No 2100/94 is intended to offset the benefit gained by the infringer, namely the farmer who does not benefit from the derogation from EU plant variety rights, within the meaning of Article 14 of that regulation, by providing for reasonable compensation in an amount which corresponds to the ‘simple’ licence fee. In that context, it states that the first sentence of Article 94(2) of that regulation could be interpreted as meaning that the holder may be entitled to compensation for further damage, in the event of intentional or negligent infringement, only if that damage can be demonstrated in concrete terms.
20. According to the referring court, the case-law of the Court suggests that a generalisation of the principle of minimum compensation does not comply with the first sentence of Article 94(2) of Regulation No 2100/94. (7) It recalls that an implementing regulation adopted on the basis of an enabling provision in the basic regulation may not derogate from the provisions of that regulation, to which it is subordinate, and should be annulled in the event of contradiction. (8)
21. In those circumstances, the Pfälzisches Oberlandesgericht Zweibrücken (Palatine Higher Regional Court, Zweibrücken) decided, by decision of 18 August 2021, lodged at the Court Registry on 24 August 2021, to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Is [the provision at issue], in so far as a minimum level of compensation of quadruple the licence fee can be claimed under the conditions laid down therein, compatible with [Regulation No 2100/94], in particular with the first sentence of Article 94(2) of that regulation?’
22. Written observations were submitted by the parties to the main proceedings and the Commission. Those parties and the Commission also presented oral argument at the hearing held on 14 July 2022.
IV. Analysis
23. Before examining the validity of the provision at issue, it is necessary to determine whether the question referred for a preliminary ruling is admissible.
A. Admissibility
24. Before turning to its analysis of the substance of the case, the Commission states in its observations, without, however, openly submitting that the request for a preliminary ruling is inadmissible, that the circumstances surrounding the main proceedings, as set out in the order for reference, are hardly clear. It states that it has doubts as to whether, in the present case, the conditions set out in Article 14(1) of Regulation No 2100/94 and in particular that of using the product of the harvest of a protected variety for the purposes of safeguarding agricultural production, for propagating purposes, in the field, on his own holding, were satisfied during the marketing years 2013/2014 to 2015/2016, when the applicant in the main proceedings grew the protected variety in question. The Commission states that if that is not the case, the question referred for a preliminary ruling on the validity of the provision at issue would not be decisive for the outcome of the dispute. It points out, nevertheless, that that question can be assessed only by the referring court, which is responsible for establishing all the relevant facts.
25. In the first place, I must point out that it is settled case-law that, since the national court alone has jurisdiction to find and assess the facts in the case before it, the Court must in principle confine its examination to the matters which the court or tribunal making the reference has decided to submit to it and thus proceed on the basis of the situation which that court or tribunal considers to be established, and cannot be bound by suppositions raised by one of the parties to the main proceedings. (9)
26. In the second place, I would also recall that it is established that requests for a preliminary ruling relating to EU law enjoy a presumption of relevance. (10) The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (11)
27. However, that is not the case here.
28. I note, in the first place, that, while it is certainly true that the referring court has not stated the reasons why Article 14(1) and (3) of Regulation No 2100/94 is applicable to the dispute in the main proceedings, neither the applicant in the main proceedings nor STV disputes that that provision and, in principle, the provision at issue apply in the present case.
29. I would point out, in the second place, that it may be inferred from the wording of the question referred for a preliminary ruling that the referring court has doubts not as to whether the provision at issue is applicable, but solely whether it is consistent with Regulation No 2100/94 and, in particular, the first sentence of Article 94(2) thereof.
30. I note, in that regard, that STV states that it is not disputed that the applicant in the main proceedings reused on his own holding propagating material of the ‘KWS Meridian’ winter barley variety which he himself produced, without having satisfied the conditions required for planting, in particular during the marketing years 2013/2014 to 2015/2016.
31. I therefore consider that there is no doubt as to the admissibility of the present request for a preliminary ruling.
B. Substance
32. In order to propose an answer to the question referred for a preliminary ruling by the national court, I shall first clarify the relationship between the principle that the authorisation of the holder of the EU plant variety right is required, in respect of variety constituents or harvested material of the protected variety, inter alia, for production or reproduction (multiplication) and the derogation from that authorisation and, secondly, in the light of that relationship, I shall review the validity of the provision at issue itself.
1. General considerations on the relationship between the authorisation of the holder of the EU plant variety right and the derogation from that authorisation
33. I note that, under Article 13(2)(a) of Regulation No 2100/94, the authorisation of the holder of the EU plant variety right is required, in respect of variety constituents or harvested material of the protected variety, inter alia, for production or reproduction (multiplication). (12)
34. In the absence of such authorisation, Article 94(1)(a) of Regulation No 2100/94 provides for the possibility, for the holder, to bring inter alia an action for payment of reasonable compensation against the person who, without being authorised to do so, has effected such production or reproduction (multiplication). Moreover, if that person has intentionally or negligently dispensed with the required authorisation, the holder also has a right to compensation for the damage suffered, in accordance with Article 94(2) of that regulation. (13)
35. However, for the purposes of safeguarding agricultural production, Article 14(1) of Regulation No 2100/94 provides for a derogation from EU plant variety rights, commonly known as the ‘farmer’s privilege’. (14) That provision authorises farmers to use for propagating purposes, in the field on their own holding, the product of the harvest which they have obtained by planting, on their own holding, propagating material of a protected variety included in the list of agricultural plant species set out in Article 14(2) of that regulation, such as, in the present case, the cereal ‘Hordeum vulgare L. – Barley’.
36. In order to clarify the relationship between the principle of the authorisation of the holder and the conditions for derogation from that principle, I shall focus on, first, the conditions which the farmer must satisfy in order to be able to benefit from the derogation provided for in Article 14(3) of Regulation No 2100/94 and in particular that concerning the payment of ‘equitable remuneration’ and what distinguishes it from the ‘reasonable compensation’ provided for in Article 94(1) of that regulation. Secondly, I shall set out in detail the implementing rules on the conditions to give effect to the derogation provided for in Article 14(1) of Regulation No 2100/94, established by Regulation No 1768/95.
(a) The conditions laid down in Article 14(3) of Regulation No 2100/94
37. The derogation from EU plant variety rights is subject to the conditions laid down in Article 14(3) of Regulation No 2100/94. (15) The farmer’s privilege therefore does not apply if the farmer does not comply with those conditions. They are laid down ‘in [Regulation No 1768/95] pursuant to Article 114’ of Regulation No 2100/94 on the basis of a series of criteria set out in Article 14(3) of that regulation, which make it possible, first, to give effect to that derogation and, secondly, to safeguard the legitimate interests of the breeder and of the farmer. (16)
38. Those criteria include, in the fourth indent of Article 14(3) of Regulation No 2100/94, the obligation for farmers to pay the holder an equitable remuneration which, in accordance with that provision, ‘shall be sensibly lower than the amount charged for the licensed production’.
39. In that regard, it should be recalled that the Court has previously held that a farmer who does not pay such equitable remuneration to the holder when he or she uses the product of the harvest obtained by planting propagating material from a protected variety (17) cannot rely on Article 14(1) of Regulation No 2100/94 and, therefore, must be considered to have undertaken, without being authorised, one of the acts referred to in Article 13(2) of that regulation. (18) This means that he or she is not entitled to the farmer’s privilege and must, to put it simply, ‘go back to square one’. In other words, if, at the time of planting, the criteria laid down in Article 14(3) of that regulation are not met, the derogation does not apply and planting constitutes an infringement of the rights conferred on the holder by Article 13(2) of the same regulation.
40. Where applicable, the farmer is subject to Article 94 of Regulation No 2100/94. (19) He or she may therefore have to respond to an action brought against him or her by the holder for an injunction in respect of the infringement or for payment of equitable remuneration or both. If the infringement is intentional or negligent, the farmer is also obliged to pay damages to make good the loss suffered by the holder. (20)
41. It seems to me appropriate to point out here the difference between the concept of ‘equitable remuneration’, contained in the fourth indent of Article 14(3) of Regulation No 2100/94, and that of ‘reasonable compensation’ contained in Article 94(1) of that regulation. The Court has already highlighted that, despite the fact that similar terms are used in the two provisions, they do not cover the same concept. (21) Thus, while the objective underlying the concept of ‘equitable remuneration’ referred to in the fourth indent of Article 14(3) of Regulation No 2100/94, read in conjunction with Article 5(5) of Regulation No 1768/95, is to establish a balance between the reciprocal legitimate interests of farmers and holders of plant variety rights, that referred to in Article 94(1) of Regulation No 2100/94, the wording of which draws no distinction depending on the status of the person committing the infringement, refers specifically to the payment of reasonable compensation in the context of an action for infringement. (22)
42. It follows that, according to the Court, the remuneration for authorised planting, for the purposes of Article 14 of Regulation No 2100/94, cannot be taken as a basis for calculating the reasonable compensation referred to in Article 94(1) of that regulation. (23) Any other interpretation could not guarantee either the objective or the effectiveness of that regulation. (24) I shall come back to this point later, which is extremely important when examining the question referred for a preliminary ruling. (25)
(b) The implementing rules on the conditions to give effect to the farmer’s privilege: Regulation No 1768/95
43. I would point out that the regulation referred to in Article 114 of Regulation No 2100/94 is Regulation No 1768/95. (26) In accordance with Article 1 thereof, Regulation No 1768/95 establishes the implementing rules on the conditions to give effect to the derogation provided for in Article 14(1) of Regulation No 2100/94. (27)
44. Regulation No 1768/95 lays down inter alia, first, rules for determining the level of equitable remuneration (Article 5 of that regulation) (28) and, secondly, the moment when the individual obligation to pay it to the holder arises, under the fourth indent of Article 14(3) of Regulation No 2100/94, namely when the farmer actually makes use of the product of the harvest for propagating purposes in the field (Article 6 of Regulation No 1768/95).
45. Regulation No 1768/95 also provides, in Article 18 thereof, for special civil law claims in the event of non-compliance with the conditions governing the farmer’s privilege.
46. The provision at issue thus provides that, in the case of repeated and intentional infringement of the obligation to pay equitable remuneration, laid down in the fourth indent of Article 14(3) of Regulation No 2100/94, in respect of one or more varieties of the same holder, the liability to compensate the holder for any further damage pursuant to Article 94(2) of that regulation shall cover at least a lump sum calculated on the basis of the quadruple average amount charged for the licensed production, without prejudice to the compensation of any higher damage.
47. It is therefore that provision which is the subject of the question concerning validity raised by the referring court and which I shall examine in the light of those general considerations.
2. Review of validity
48. By its single question, the referring court asks, in essence, whether the provision at issue is invalid in the light of the first sentence of Article 94(2) of Regulation No 2100/94, in so far as it provides, in the case of repeated and intentional infringement of the obligation to pay ‘equitable remuneration’, pursuant to the fourth indent of Article 14(3) of that regulation, for a minimum level of compensation for the damage suffered by the holder in the amount of quadruple the average amount of the fee charged for licensed production.
49. In the context of this review, I shall set out, first of all, the reasons why it is appropriate to reject the arguments put forward by the applicant in the main proceedings concerning the Commission’s lack of competence to adopt the provision at issue. Next, I shall analyse, in the light of the case-law of the Court, the normative content of Article 94(2) of Regulation No 2100/94, in the light of which the referring court has asked the question as to the validity of the provision at issue. Finally, I shall draw useful conclusions from that case-law in order to answer the question.
(a) The Commission’s competence to adopt the provision at issue
50. The applicant in the main proceedings submits that the Commission lacked competence to adopt the provision at issue and, therefore, to determine the reasonable compensation to be paid under Article 94 of Regulation No 2100/94.
51. I do not concur with that approach.
52. I note that the Court’s assessment of the validity of a provision of EU law must come within the context of the question referred to it for a preliminary ruling. (29)
53. In the present case, the question concerns the compatibility of the provision at issue in the light of the first sentence of Article 94(2) of Regulation No 2100/94 in particular. Consequently, by challenging the competence of the Commission to adopt the provision at issue, the applicant in the main proceedings seeks to broaden the question raised by the referring court. (30)
54. Moreover, it is clear that the review of the validity of the provision at issue which the referring court is asking the Court to carry out must take account of the nature and purpose of that measure, whose legal basis, as I stated in point 7 of this Opinion, is Article 14(3) of Regulation No 2100/94. (31) In that regard, Article 114 of Regulation No 2100/94, read in conjunction with Article 14(3) thereof, empowers the Commission to establish the rules for implementing the derogation laid down in that provision. (32)
55. It follows that the Commission is empowered, on the basis of those provisions, to adopt an implementing regulation, such as Regulation No 1768/95, in order to establish the conditions to give effect to the derogation provided for in Article 14(1) of Regulation No 2100/94 and to safeguard the legitimate interests of the breeder and of the farmer. In that respect, as regards the purpose and reasoning of Regulation No 1768/95, it is clear from the second, third, tenth and eleventh recitals thereof that that regulation aims to establish such conditions and to specify, first, the connection between the right of the holder and the rights deriving from the provisions of Article 14 of Regulation No 2100/94 and, secondly, the connection between the authorisation granted to the farmer and the use of that authorisation.
56. Moreover, in so far as Regulation No 1768/95 seeks to clarify the criteria laid down in Article 14(3) of Regulation No 2100/94, which give effect to the derogation in question and safeguard the legitimate interests of the breeder and of the farmer, it is still necessary to determine whether, as requested by the referring court, the Commission, in providing in the provision at issue for a minimum level of compensation for the damage suffered by the holder in the amount of quadruple the average amount of the fee charged for licensed production, has failed to have regard to the content of Article 94(2) of Regulation No 2100/94, as interpreted by the Court.
57. In order to do so, I consider it necessary to recall briefly the relevant case-law relating to Article 94 of Regulation No 2100/94.
(b) The case-law relating to Article 94 of Regulation No 2100/94: the judgment in Hansson
58. The judgment in Hansson (33) seems to me to constitute a precedent on which the Court may usefully rely in order to answer the question referred for a preliminary ruling. In the case which gave rise to that judgment, the referring court sought, in essence, to ascertain what principles govern the setting and calculation of the compensation payable under Article 94 of Regulation No 2100/94.
(1) The nature of the compensation
59. As regards the nature of the compensation due under Article 94 of Regulation No 2100/94, the Court noted, in the first place, that it is apparent from the wording of Article 94(2) of that regulation that that provision concerns exclusively compensation for damage suffered by the holder of an EU plant variety right because of an infringement of the variety in question. (34)
60. First, the Court held that the purpose of Article 94(1) of Regulation No 2100/94 is that financial compensation should be paid in respect of the benefit which has been gained by the person who committed the infringement, that benefit corresponding to the amount equivalent to the licence fee which that person has failed to pay. (35) In that regard, the Court has stated that Article 94(1) does not provide for compensation for damage other than damage connected to the failure to pay reasonable compensation within the meaning of that provision. (36) Secondly, the Court noted that Article 94(2) of that regulation concerns the ‘further damage’ for which an infringer must compensate the holder where the infringer has acted ‘intentionally or negligently’. (37)
61. According to the Court, it follows that Article 94 of Regulation No 2100/94 establishes for the holder of an EU plant variety right an entitlement to compensation ‘which not only is full but which also rests on an objective basis, that is to say, it covers solely the damage which he [or she] has sustained as a result of the infringement’. (38) Therefore, it confirmed, following the Opinion of Advocate General Saugmandsgaard Øe, (39) that that provision cannot be interpreted as providing a legal basis, to the benefit of the rightholder, which permits an infringer to be required to pay punitive damages, established on a flat-rate basis. It added that, rather, the extent of the compensation payable under that provision must reflect, as accurately as possible, the actual and certain damage suffered by the holder of the plant variety right because of the infringement. (40)
62. The Court stated, in the second place, referring to recitals 17 and 26 of Directive 2004/48/EC, (41) and Article 13(1) thereof, (42) that such an interpretation is consistent with the objectives of that directive, which lays down a minimum standard concerning the enforcement of intellectual property rights in general. (43)
(2) The methods for setting compensation: the extent of the compensation
63. As regards the extent of the compensation, for the purposes of Article 94(2) of Regulation No 2100/94, the Court has held that it is for the holder of the variety infringed to produce evidence which establishes that his or her damage goes beyond the matters covered by the reasonable compensation provided for in Article 94(1) of that regulation. (44) To that end, the Court defined the extent of that compensation by pointing out that the fee normally payable for licensed production cannot in itself form the basis for determining that damage. In fact, such a fee enables the reasonable compensation provided for in Article 94(1) of that regulation to be calculated and does not necessarily have any connection with the damage which has yet to be compensated and for which compensation is provided for in Article 94(2) of the same regulation. (45)
64. In that regard, the Court recalled, first, that the circumstances which gave grounds, in the calculation of reasonable compensation, for increasing the fee normally payable for licensed production cannot be brought into account a second time in respect of the compensation provided for in Article 94(2) of Regulation No 2100/94. (46) It held, secondly, that it is the court seised of the dispute which must determine the extent to which the damage pleaded by the holder of the variety infringed can be precisely established or whether it is necessary to set a lump sum which reflects the actual damage as accurately as possible. (47)
(c) The challenge to the validity of the provision at issue, in the light of Article 94(2) of Regulation No 2100/94, as interpreted by the Court
65. The referring court asks, in essence, whether, as regards damage, a generalisation of the principle of a minimum lump sum which is quadruple the amount of the licence fee, laid down in the provision at issue, is consistent with Article 94(2) of Regulation No 2100/94, as interpreted by the Court.
(1) The arguments put forward by the applicant in the main proceedings, STV and the Commission
66. The applicant in the main proceedings submits that the provision at issue, at least the second part of it, is void and may easily be annulled or set aside, while maintaining the remainder of Regulation No 1768/95. He adds that the first part of that provision limits the obligation to compensate for damage, laid down in Article 94(2) of Regulation No 2100/94, in the case of an infringement of ‘one or more varieties of the same holder’. Such a restriction of the scope and application of that provision is not found in the wording of that provision and does not follow from its content, with the result that he considers that the first part is also unlawful and should be annulled.
67. STV submits that the provision at issue was validly adopted by the Commission in accordance with the objectives and guidelines of Regulation No 2100/94 and cannot be declared invalid. It is also said to be common ground that the applicant in the main proceedings acted intentionally without the authorisation of the holder of the EU plant variety right. The conditions set out in Article 94(2) and Article 14(3) of Regulation No 2100/94, read in conjunction with the provision at issue, are therefore said to be undeniably satisfied.
68. The Commission, for its part, submits that the provision at issue complies with the requirements of Regulation No 2100/94 in so far as, in the conditions set out in that provision, a minimum level of compensation of quadruple the licence fee can be claimed.
69. More specifically, in its written observations, the Commission justifies the application of the minimum lump sum, laid down in the provision at issue, on the ground that, where the planting of a protected variety is not covered by the farmer’s privilege, that is to say, in the event of illegal reseeding, the failure to pay the equitable remuneration, which is less than the usual licence fee, would constitute ‘misuse’ of that privilege, which would confer not only a right to payment of that fee under Article 94(1) of Regulation No 2100/94, but also a right to compensation for the damage suffered, in accordance with Article 94(2) of that regulation. According to the Commission, that compensation should then, where the abuse is repeated and intentional, be imposed, according to the minimum amount laid down in the provision at issue. (48)
70. According to the Commission, since Article 14 of Regulation No 2100/94 on the farmer’s privilege governs the complex balance of interests between holders of plant variety rights and farmers, it would be appropriate for the infringement by a farmer, who benefits from that privilege but repeatedly and intentionally fails to comply with the obligation to pay an equitable remuneration, which is lower than the usual fee (fourth indent of Article 14(3) of that regulation), to be penalised more severely than a ‘mere’ case of an act subject to authorisation which is carried out intentionally or negligently without authorisation (Article 94(2) of that regulation). (49) The minimum lump sum at issue is said to correspond to a standard approach to the minimum damage generally suffered by holders of protected varieties.
71. In that regard, at the hearing, the Commission referred to the judgment in Stowarzyszenie Oławska Telewizja Kablowa, (50) in which the Court held that Article 13 of Directive 2004/48 must be interpreted as not precluding national legislation under which the holder of an intellectual property right that has been infringed may demand from the person who has infringed that right either compensation for the damage that he or she has suffered, taking account of all the appropriate aspects of the particular case, or, without him or her having to prove the actual loss, payment of a sum corresponding to twice the appropriate fee which would have been due if permission had been given for the work concerned to be used.
72. In addition, the Commission submitted at the hearing that the complexity of the objective of ensuring a balance between the interests of the holders of the protected plant variety right and those of farmers is due, inter alia, to the fact that the illegal reseeding takes place on the farmer’s holding, which makes it difficult for the holders to control the use of the protected varieties. In those circumstances, it submitted that the measures must provide sufficient incentives to avoid, inter alia, favouring farmers who evade their obligation to pay equitable remuneration to the holder under the fourth indent of Article 14(3) of Regulation No 2100/94 over those who fulfil that obligation. That is particularly true since, in its view, under the fifth indent of Article 14(3) of that regulation, the holders alone are responsible for the control and supervision of the use of the protected varieties in the context of the authorised planting and they depend, therefore, on the good faith and cooperation of the farmers concerned.
(2) Assessment
73. In the first place, the arguments concerning the relevance of the minimum lump sum at issue must be rejected for the following reasons.
74. I would point out that the provision at issue provides that the liability to compensate the holder for any further damage pursuant to Article 94(2) of Regulation No 2100/94 is to cover at least a lump sum calculated on the basis of the quadruple average amount charged for the licensed production, without prejudice to the compensation of any higher damage.
75. Where the farmer complies with the conditions laid down in Article 14(3) of Regulation No 2100/94 and, in particular, pays the equitable remuneration for a marketing year, he or she pays, in essence, 50% of the fee payable for licensed production, (51) whereas, if he or she does not comply with those conditions (52) and if the provision at issue is applied, (53) he or she pays, in essence, a minimum lump sum of 400% of the fee payable for that licensed production, thus four times 100% of the average amount charged, that is to say, an amount essentially equivalent to eight times the equitable remuneration required under Article 14(3) of Regulation No 2100/94, and for each marketing year in question. (54)
76. It is true that that minimum lump sum may be justified ‘technically’, according to the Commission’s logic, (55) by the fact that the fee payable for authorised planting, where the farmer benefits from the derogation provided for in Article 14(1) of Regulation No 2100/94, cannot be used as a basis for calculating the reasonable compensation referred to in Article 94(1) of that regulation (56) and that, therefore, the farmer is required, in the event of illegal reseeding, to pay 100% of the fee payable for licensed production as reasonable compensation under that provision.
77. However, the wording of Article 94(2) of Regulation No 2100/94 and the conclusions drawn from the judgment in Hansson lead me to consider that such a minimum lump sum is not consistent with the wording of that provision.
78. First, the Court noted, in the judgment in Hansson, that Article 94(2) of Regulation No 2100/94 is intended to make good the damage suffered by the holder of a plant variety who is the victim of an infringement (57) and characterised that compensation as ‘objective and full compensation for that damage’. It stated that, in order to obtain such compensation, the holder of the infringed variety must produce evidence which establishes that ‘his [or her] damage goes beyond the matters covered by the reasonable compensation provided for in Article 94(1) [of that regulation]’. (58)
79. Secondly, it follows from the judgment in Hansson (59) that it is the court seised of the dispute which must determine whether the damage pleaded by the holder who was the victim of the infringement can be ‘precisely’ established or whether it is necessary to ‘set a lump sum’. Thus, although the Court acknowledges, in that judgment, that the court seised of the dispute has the option to set the compensation as a lump sum, under Article 94(2) of Regulation No 2100/94, it is clear, in my view, that that decision is for that court to take and, in any event, that that compensation ‘must reflect, as accurately as possible, the actual and certain damage suffered by the holder of the plant variety right because of the infringement’. (60) Consequently, according to the Court, Article 94 of that regulation must be interpreted as meaning that ‘the right to compensation which it establishes for the holder of a plant variety right that has been infringed encompasses all the damage sustained by that holder, although that article cannot serve as a basis … for the imposition of a flat-rate “infringer supplement”’. (61)
80. However, as the Commission itself stated in response to a question put by the Court, that, when the provision at issue is applied, the holder who is the victim of infringement must not prove the exact extent of the damage suffered, but only the repeated and intentional infringement of his or her rights. Nevertheless, as I have stated, that holder must prove that his or her damage exceeds what is covered by the equitable remuneration, the assessment of the precise extent of the damage suffered or the possible determination of the lump sum being left to the court seised. (62)
81. Therefore, it would not be consistent with Article 94(2) of Regulation No 2100/94, as interpreted by the Court, first, to use the fee normally payable for licensed production, that is, 100% of that fee, as the basis for determining the damage suffered by the holder of the plant variety right, by multiplying that amount by four, as set out in the provision at issue, since such a fee is intended to enable the reasonable compensation provided for in Article 94(1) of that regulation to be calculated, without necessarily having any connection with the damage suffered by the holder, compensation for which is provided for in Article 94(2) of that regulation. (63)
82. Secondly, I would point out that, in the judgment in Hansson, the Court ruled out the possibility that Article 94 of Regulation No 2100/94 could be interpreted as ‘providing a legal basis, to the benefit of the rightholder, which permits an infringer to be required to pay punitive damages, established on a flat-rate basis’. (64) In that regard, it added that the extent of the compensation payable under that provision must reflect, ‘as accurately as possible, the actual and certain damage suffered by the holder of the plant variety right because of the infringement’. (65)
83. Therefore, it would also be contrary to Article 94(2) of Regulation No 2100/94, as interpreted by the Court, to make an assumption, governing the provision at issue, that the amount of compensation paid to the holder should be at least quadruple the average amount charged for licensed production. Contrary to the Commission’s submissions, such an assumption would lead to punitive damages being awarded in so far as the former provision aims to compensate ‘the holder for … damage’ and only for the damage suffered. In that regard, I consider that the Commission’s argument cannot be upheld when it claims, as it did at the hearing, that that provision corresponds to a standard approach typical of the minimum damage generally suffered by holders. (66)
84. In the second place, I infer from the use of the wording ‘at least’ in the provision at issue that the court, in its assessment of the damage pleaded by the holder of the variety infringed, and in the event that it sets a lump sum, is obliged to calculate the compensation for the damage suffered on the basis of the premiss, established by the Commission in Regulation No 1768/95, that the compensation should be at least quadruple the licence fee. (67) Moreover, in response to a question put by the Court on that point, the Commission acknowledged that, even if the actual damage could be easily established and proved to be less than the minimum lump sum laid down in the provision at issue, the court seised could, in the event of repeated and intentional infringement of the obligations under the provision at issue, increase that amount but in no case reduce it, in the light of the wording of that provision.
85. That would mean that, even if the damage pleaded by the holder who is the victim of the infringement can be established ‘precisely’, the court seised would have to ‘set a lump sum’ when such a fixed sum is not necessary. Furthermore, in the event that that damage cannot be proved precisely, if the court decided to set a lump sum, that cannot be less than the minimum lump sum laid down in the provision at issue. (68) It is clear that such a limitation on the discretion of the court seised of the dispute would be contrary not only to the first sentence of Article 94(2) of Regulation No 2100/94, as interpreted by the Court, (69) but also to the principle of proportionality. Although, de lege ferenda, the Commission may provide for a minimum lump sum in respect of the licence fee, the provision which provides for it should allow the defendant to challenge that minimum lump sum, which should not be binding on the court seised.
86. In the third and last place, I consider that the arguments based on the judgment in Stowarzyszenie Oławska Telewizja Kablowa (70) are not relevant to the examination of the question of validity at issue in the present case. It seems to me that the facts of the case in the main proceedings are clearly different from those in the case which gave rise to that judgment.
87. First, in so far as Directive 2004/48 gives Member States a certain degree of discretion in its transposition and concerns not only intellectual property rights in respect of plant varieties but also all intellectual property rights which include industrial property rights, (71) any possible infringement of those rights may be varied and numerous. Accordingly, as Advocate General Saugmandsgaard Øe has pointed out, (72) even though that directive may, depending on the circumstances, be a relevant aspect to take into account for the purposes of interpreting Regulation No 2100/94, it is important, however, to avoid creating, under the guise of a textual interpretation of that regulation, directly applicable rights which are not enshrined by that regulation by importing them from that directive.
88. Secondly, and even more importantly, the case which gave rise to the judgment in Stowarzyszenie Oławska Telewizja Kablowa (73) concerned the interpretation of Directive 2004/48 whereas, in the present case, the Court is called upon to examine a question on the validity of a provision of Regulation No 1768/95, namely the provision at issue, which is an implementing measure and as such must comply with Regulation No 2100/94 and, in particular, with Article 94(2) thereof.
89. It follows that Article 94(2) of Regulation No 2100/94 does not allow the fixing of the minimum lump sum provided for in the provision at issue. The content of the provision at issue goes beyond that of Article 94(2) of that regulation. Moreover, as is clear from the preceding points, the arguments raised by STV and the Commission are not such as to undermine the Court’s interpretation of the latter provision in the judgment in Hansson.
90. In those circumstances, I consider that the generalisation of the principle of compensation that is a minimum lump sum of quadruple the amount of the licence fee, laid down in the provision at issue, is not consistent with Article 94(2) of Regulation No 2100/94, as interpreted by the Court, even though, as STV and the Commission maintain, the provision at issue applies only in the case of repeated and intentional infringement of the obligation to pay equitable remuneration laid down in the fourth indent of Article 14(3) of that regulation.
91. Therefore, when adopting the provision at issue, the Commission exceeded the limits of its competence, in the light, in particular, of Article 94(2) of Regulation No 2100/94.
V. Conclusion
92. Having regard to all the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Pfälzisches Oberlandesgericht Zweibrücken (Palatine Higher Regional Court, Zweibrücken, Germany) as follows:
Article 18(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights is invalid in the light of the first sentence of Article 94(2) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, in so far as that provision provides, in the case of repeated and intentional infringement of the obligation to pay equitable remuneration, pursuant to the fourth indent of Article 14(3) of Regulation No 2100/94, for a minimum level of compensation for the damage suffered by the holder of quadruple the average amount charged for the licensed production of propagating material of the same variety in the same area.