OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 13 November 2014 (1)
Case C‑546/12 P
Ralf Schräder
The other parties to the proceedings being:
Community Plant Variety Office (CPVO)
and
Jørn Hansson
(Appeal — Community plant variety rights — Decision of the Board of Appeal in annulment proceedings — Investigation of the facts of its own motion — Article 76 of Regulation (EC) No 2100/94)
1. In this appeal from the judgment of the General Court in Case T‑242/09 (2) Mr Schräder challenges its ruling dismissing his action against the decision of the Board of Appeal (‘the Board’) of the Community Plant Variety Office (‘the CPVO’ or ‘the Office’) of 23 January 2009 concerning an application for annulment of the Community plant variety right (‘CPVR’) granted to the variety Osteospermum ecklonis LEMON SYMPHONY. (3)
2. In brief the background to the litigation is as follows. On 5 September 1996 Mr Hansson (the intervener in the proceedings before the CPVO) submitted an application to the CPVO for a CPVR for LEMON SYMPHONY. The CPVO asked the Bundessortenamt (German Federal Plant Variety Office) to conduct the required technical examination. To do so the Bundessortenamt asked for ‘20 young plants of marketable quality, neither trimmed nor treated with growth regulators’. Mr Hansson sent the requested plant material on 10 January 1997. The expert responsible for conducting the technical examination wrote to the CPVO in the following terms: ‘In accordance with point II(2) of the CPVO technical protocol for distinctness, uniformity and stability tests (“DUS”), we hereby inform you that the propagating material of the variety referred to in the subject heading which was sent to us consists of plants in bud intended for sale which have been treated with growth regulators and trimmed. Therefore, there is a risk that the technical examination will not progress satisfactorily.’ The technical examination was nevertheless subsequently carried out (‘the 1997 technical examination’), although the General Court noted in the judgment under appeal that the Bundessortenamt had not been able to confirm whether it was conducted directly on the plant material sent by Mr Hansson or on cuttings obtained from that material. The Bundessortenamt subsequently prepared an examination report to which the official description of LEMON SYMPHONY was attached as an annex, showing that the characteristic ‘attitude of shoots’ was expressed as ‘erect’. (4)
3. The CPVR for LEMON SYMPHONY was granted on 6 April 1999.
4. On 26 November 2001 Mr Schräder submitted an application for a CPVR for the Osteospermum ecklonis variety SUMOST 01. (5) The technical examination showed that SUMOST 01 was not distinct from the variety LEMON SYMPHONY. Mr Schräder’s application was therefore unsuccessful. In order to pursue his claim for protection for SUMOST 01 Mr Schräder subsequently launched a number of applications with a view to overturning the decision to grant a CPVR for LEMON SYMPHONY. In the administrative procedure and before the General Court Mr Schräder claimed that that CPVR should be declared null and void. His case is essentially that the 1997 technical examination was invalid, because the material used for the purposes of that examination was flawed. He argues that LEMON SYMPHONY had never existed in the form reproduced in the official description entered in the Register of Community Plant Variety Rights in 1997.
5. Mr Schräder maintains that the 1997 technical examination was defective for the following reasons. First, cuttings had been taken from the plants sent to the Bundessortenamt and those cuttings were used in the tests instead of the material sent by Mr Hansson (the holder of the CPVR for LEMON SYMPHONY). Second, the material tested consisted of plants in bud that had been treated by growth regulators. Third, there were differences from the description of LEMON SYMPHONY that had been produced in Japan. Fourth, under Council Regulation (EC) No 2100/94 (6) a variety is not distinct unless it is distinguishable by reference to the expression of the characteristics which result from a particular genotype or combination of genotypes; no distinction can be made where the expression of the characteristics found results from mechanical treatment and treatment with growth regulators.
6. Mr Schräder now puts forward six grounds of appeal.
7. In my view only the first ground — that the General Court erred in law, thereby infringing his fundamental rights, in ruling that the Board was not subject to an obligation to investigate the facts of its own motion — discloses a true point of law; and that ground is unfounded for the reasons that I set out below.
European Union law
Fundamental rights
8. Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (7) guarantees a person’s right to have his affairs handled impartially, fairly and within a reasonable time by the EU institutions.
9. Article 47 of the Charter provides for the right to an effective remedy and a fair hearing.
Regulation (EC) No 2100/94
10. The Basic Regulation establishes a system (which co-exists with national regimes) for granting industrial property rights for plant varieties that are valid throughout the European Union. (8) The CPVO was established to implement the Regulation. (9) Varieties of all botanical genera and species, including, inter alia, hybrids between genera or species, may form the object of a CPVR. (10) In order to obtain protection a variety must be distinct, uniform, stable and new. (11) The holder of a CPVR enjoys the exclusive right to carry out or authorise the acts listed in Article 13(2). (12) A CPVR may be obtained following the filing of an application; the conditions governing that process are laid down in Chapter I of the Regulation. The CPVO is responsible for making a formal, substantive and technical examination of the application. (13)
11. Article 7(1) states: ‘A variety shall be 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 determined pursuant to Article 51.’ (14) According to Article 7(2) the existence of another variety is a matter of ‘common knowledge’ where (a) it was the object of a plant variety right or entered in an official register of plant varieties, in the Community or any State, or in any intergovernmental organisation with relevant competence; or (b) where an application for granting a CPVR or for its entering in such an official register was filed, provided the application has led to the granting or entering in the meantime.
12. A variety is deemed to be ‘stable’ if, inter alia, the expression of the characteristics included in the examination for distinctness remains unchanged after repeated propagation. (15)
13. Article 20 (‘Nullity of Community plant variety rights’) provides:
‘1. The Office shall declare the Community plant variety right null and void if it is established:
(a) that the conditions laid down in Articles 7 or 10 were not complied with at the time of the Community plant variety right; …
2. Where the Community plant variety right is declared null and void, it shall be deemed not to have had, as from the outset, the effects specified in this Regulation.’
14. The conditions for cancelling CPVRs are contained in Article 21.
15. Decisions of the CPVO must be accompanied by statements of the grounds on which they are based and must be based only on grounds or evidence on which the parties to proceedings have had an opportunity to present their comments orally or in writing. (16)
16. In the absence of procedural provisions in the Regulation, the CPVO must apply the principles of procedural law which are generally recognised in the Member States. (17)
17. An appeal lies to the Boards of Appeal from decisions of the CPVO taken pursuant to, inter alia, Articles 20 and 21. (18)
18. Article 76 states: ‘In proceedings before it the Office shall make investigations on the facts of its own motion, to the extent that they come under the examination pursuant to Articles 54 and 55. It shall disregard facts or items of evidence which have not been submitted within the time limit set by the Office.’
19. The CPVO may of its own motion and upon consultation with the holder adapt the official variety description in respect of the number and type of characteristics or of the specified expressions of those characteristics. (19)
20. In exercising its functions the Board of Appeal may exercise any power which lies within the competence of the CPVO. (20)
21. Article 73(1) confers a right to appeal to the Court of Justice against decisions of the Board. Such actions may be brought on the limited grounds laid down in Article 73(2). (21)
Commission Regulation (EC) No 1239/95
22. Regulation No 1239/95 (22) contains the detailed rules for the purposes of applying the Basic Regulation. Article 51 states that unless otherwise provided, the provisions relating to proceedings before the Office apply mutatis mutandis to appeal proceedings.
Administrative proceedings
23. A full account of the administrative proceedings before the relevant committee of the CPVO and the Board of Appeal is set out in paragraphs 5 to 78 of the judgment under appeal. In brief, the position is as follows.
24. On 27 October 2003, Mr Hansson (as rights holder for LEMON SYMPHONY) lodged a written objection in respect of Mr Schräder’s application (of 26 November 2001) for a CPVR for SUMOST 01. (23) By decision of 19 February 2007 (‘the refusal decision’), the Office upheld his objections and refused Mr Schräder’s application, essentially on the ground that SUMOST 01 was not clearly distinguishable from LEMON SYMPHONY and that the conditions set out in Article 7 of the Regulation had therefore not been met.
25. Then, on 26 October 2004, Mr Schräder filed an application for cancellation of the Community plant variety right previously granted for LEMON SYMPHONY, pursuant to Article 21 of the Regulation, on the ground that the characteristics used for the variety description, including those assessed in the examination for distinctness, were not stable and therefore did not meet the requirements in Article 9. By letter of 10 May 2007, the CPVO informed Mr Schräder that the competent committee had decided that the conditions for cancellation under Article 21 of the regulation were not met (‘the decision rejecting cancellation’).
26. On 7 December 2004, the CPVO decided to carry out a technical verification in order to check whether LEMON SYMPHONY continued to exist in the same form. On 14 September 2005, the Bundessortenamt compiled an examination report concluding that the variety should be retained. A new description of LEMON SYMPHONY, dated the same day, was attached as an annex to that report, from which it is apparent, inter alia, that the characteristic ‘attitude of shoots’ was now expressed as ‘semi-erect to horizontal’. By letter to Mr Hansson of 25 August 2006, the CPVO proposed to adapt the official description of LEMON SYMPHONY entered in the register in 1997 to the new description of 14 September 2005. The CPVO took the view that such an adaptation was necessary, first, on account of the progress made in plant breeding since the 1997 technical examination and, second, because, following amendment of the test guidelines in 2001, the difference in the score for the characteristic ‘attitude of shoots’ could be explained by the fact that there was no comparison variety in the ‘Table of Characteristics VI’ used in 1997 and that LEMON SYMPHONY was the most erect variety during that year. Moreover, there had been a significant increase in the number of Osteospermum ecklonis species varieties since 1997 and the test guidelines had been partially amended, requiring the levels of expression to be adapted.
27. Mr Hansson accepted that proposal by letter of 22 September 2006. By letter of 18 April 2007, the CPVO informed Mr Hansson of its decision to adapt, of its own motion, the official description of LEMON SYMPHONY in accordance with Article 87(4) of the Regulation (‘the adaptation decision’). On 21 May 2007, the Office informed Mr Schräder of the decision on the adaptation of the description and the replacement of the official description of LEMON SYMPHONY entered in the Register of Community Plant Variety Rights in 1997 by that of 2005.
28. Mr Schräder appealed against the refusal decision, the decision rejecting cancellation and the adaptation decision to the Board of Appeal. (24) He was unsuccessful in all three applications.
29. On 11 April 2007, Mr Schräder filed an application for annulment of the CPVR granted to LEMON SYMPHONY. By letter of 26 September 2007 the CPVO rejected that application. An appeal was lodged with the Board on 19 October 2007. (25)
30. On 23 January 2009, the Board dismissed the appeal as unfounded (‘the annulment decision’). The Board made the following findings. First, the Bundessortenamt had informed the CPVO of a risk that the examination might be unreliable if the material provided (plants in bud that had been treated with growth regulators) were used, but had been advised to continue with the examination and to take cuttings from that material. Second, it is common practice to propagate all the varieties used in an examination from cuttings, taking them at the same time to ensure that all the material has the same physiological age. Third, the issue of chemical treatment was not as simple as Mr Schräder claimed. (26) Fourth, it could justifiably be concluded that treatment with growth regulators did not influence the examination. The type of growth regulator used during propagation normally has no lasting effect given that the subsequent reviewing of the plant’s growth requires further spraying with growth regulators (the Board preferred the information provided by Mr Hansson in that respect). Fifth, Mr Schräder’s assertion that all the reference varieties mentioned in the guidelines were known in 1997 was irrelevant. Sixth, the variety LEMON SYMPHONY, which was obtained from generic crossbreeding between the species Osteospermum and Dimorphotheca, is as such unique, not only by virtue of its morphological characteristics, but also by virtue of its continuous flowering period, which is longer than that of the current Osteospermum varieties. Given LEMON SYMPHONY’s unique character, it was not possible to find, for the examination carried out by the Bundessortenamt in 1997, reference varieties with which it could have been compared.
31. By letter of 30 March 2009, Mr Schräder set out a series of criticisms and objections with regard both to the minutes and to the conduct of the hearing that took place on 23 January 2009. Before the General Court, Mr Schräder offered to produce evidence in support of his claims. (27)
Proceedings before the General Court and judgment under appeal
32. Mr Schräder brought four separate actions in the General Court challenging the Board’s decisions. (28) In each case he sought the annulment of the relevant decision and costs from the CPVO. All four cases were joined for the purposes of the judgment.
33. The General Court pointed out that the first three joined cases (T‑133/08, T‑134/08 and T‑177/08) were closely linked and were dependent upon Case T‑242/09 concerning the annulment proceedings. That case was therefore considered first.
34. Mr Schräder advanced four pleas. The first three alleged infringements of the Basic Regulation: (i) of Article 76 (examination of the facts by the Office of its own motion) and Article 81 (application of procedural provisions recognised by the Member States); (ii) of Article 7 (conditions for distinctness of a variety) and Article 20 (annulment of a CPVR); and (iii) of Article 75 (obligation to state reasons). The fourth plea alleged infringement of Article 63(1) and (2) of the Implementing Regulation (rules concerning minutes of oral proceedings and of taking evidence).
35. The General Court found Case T‑242/09 to be unfounded. It therefore dismissed the appeal by judgment of 18 September 2012.
36. In Cases T‑133/08, T‑134/08 and T‑177/08 the General Court upheld the appeals on the plea alleging infringement of Article 59(2) of the Implementing Regulation concerning the summons to the oral proceedings before the CPVO and the right to be heard. It accordingly set aside the Board’s rulings on the refusal decision, the decision rejecting cancellation and the adaptation decision.
The appeal and the procedure before the Court
37. Mr Schräder seeks to have the judgment under appeal set aside in so far as it concerns the decision in Case T‑242/09, his application for annulment of the CPVR for LEMON SYMPHONY to be granted and his costs in the four sets of proceedings before the General Court.
38. Mr Schräder’s six grounds of appeal may be summarised as follows. First, the General Court erred in law by ruling that the Board was not able to act of its own motion in annulment proceedings. In so doing the General Court breached his rights regarding the burden of proof and the taking of evidence before the Board — as a result, it failed to fulfil its duty of review and infringed his right to a fair hearing, good administration and an effective remedy. Second, the General Court erred in finding that a party is not entitled to measures of inquiry in proceedings before the Board unless he has adduced at least prima facie evidence in support of such an application and thereby infringed the rules concerning the burden of proof and the taking of evidence. Moreover, even if it is assumed that the burden of proof rests upon the applicant in annulment proceedings before the Board, the General Court denied his right to be heard and distorted the facts and the evidence. Third, the General Court erred in law by assuming a fact (the practice of propagating test specimens from cuttings) to be a ‘well known’ fact when (in his view) that fact is incorrect. It thereby failed to fulfil its duty of review and distorted the facts and the evidence. Fourth, the General Court ruled incorrectly that he had not adduced evidence in support of his submission concerning the effects of growth regulators. The judgment is thus contradictory and the grounds are deficient. Furthermore, the General Court failed to review the legality of the Board’s decision. Fifth, the finding that the characteristic ‘attitude of shoots’ of an Osteospermum variety was not included in the examination of distinctness infringes Articles 7 and 20 of the Basic Regulation. It is an impermissible extension of the subject matter of the dispute, and by so doing the General Court raised of its own motion an issue that was not put to it by the parties and was not a matter of public policy. Sixth, he contests the finding that the ‘attitude of shoots’ of an Osteospermum variety can be determined in relation to other plants forming part of the examination in question. Such a finding is a distortion of the facts, an infringement of the Regulation, an impermissible extension of the subject matter of the dispute and an infringement of the duty to conduct a full review. The decision is therefore contradictory.
39. The CPVO, supported by Mr Hansson (rights-holder for LEMON SYMPHONY, the intervener in the proceedings before the General Court and the other party to the proceedings before the Board of Appeal), asks the Court to dismiss the appeal and to order Mr Schräder to pay the costs of the proceedings.
Assessment
First ground: error of law in finding that the Board could not act of its own motion, and breach of right to an effective remedy and a fair hearing
Relevant passages from the judgment of the General Court
40. The General Court stated that Article 76 of the Basic Regulation (concerning the examination of the facts by the CPVO of its own motion) is, strictly speaking, inapplicable to the proceedings before the Board of Appeal. (29) The task of the Board is solely to rule, on the application of an interested party, on the lawfulness of a decision of the CPVO adopted under Article 20(1)(a) of the Regulation refusing to declare a CPVR null and void on the ground that that party has failed to establish that the conditions set out in Article 7 or 10 of that regulation were not satisfied at the time when the CPVR was granted. (30) Since annulment proceedings were initiated not by the CPVO of its own motion, but following Mr Schräder’s application, Articles 76 and 81 read together with Article 20 of the Regulation placed the onus on Mr Schräder to prove that the conditions for that declaration of nullity were met. (31) These arrangements as to the burden of proof and the taking of evidence differed appreciably from those provided for by Article 76 of Council Regulation (EC) No 207/2009 on the Community trade mark. (32) The difference in the rules of evidence of the Community trade mark and plant variety regimes could, however, be explained by the fact that, unlike the regulation on the CTMR, the Basic Regulation does not distinguish between absolute and relative grounds for refusal of registration. The Basic Regulation’s rules were consistent with those in Council Regulation (EC) No 6/2002 (33) dealing with designs and with general principles of law and rules of procedure applicable to the burden of proof and taking of evidence, inter alia the maxim actori incumbit onus probandi. (34) Accordingly, the first ground of appeal had to be rejected as being founded on the incorrect premiss that the burden of proof lay, in the present case, on the CPVO by virtue of Articles 76 and 81 of the Basic Regulation. (35)
41. The General Court then observed that it was not apparent from the provisions of the Basic Regulation that the proceedings before the CPVO are purely investigative in nature. In particular, the ‘principle of examination of its own motion’ (set out, with regard to the technical examination, in the first sentence of Article 76) had to be reconciled with the rule (set out in the second sentence of that article) that the CPVO is required to disregard facts or items of evidence which have not been submitted within the period set by it. It was thus for the parties to the procedure before the CPVO to submit in due time the facts which they intended that the office should find and appraise, adducing the evidence which they wished to see admitted in support of those facts. (36) In so far as those provisions were applicable to appeal proceedings against a decision of the CPVO taken under Article 20 of the Regulation refusing to annul the CPVR, it was thus for the party seeking annulment to put forward the facts and submit the evidence which, in its view, proved that the conditions annulling the CPVR were met. The Board was then required to examine carefully and impartially all the relevant elements of the case, ensuring compliance with the general principles of law and with the applicable rules of procedure governing the burden of proof and the taking of evidence. (37)
42. Next, the General Court considered that Mr Schräder was essentially complaining that the Board had based its decision exclusively on the version of the facts put forward by the CPVO and Mr Hansson, without gathering or assessing the evidence which he had offered and, in particular, without granting his request for the adoption of a measure of inquiry consisting of an expert opinion to establish, inter alia, the effect of the growth regulators. (38) The General Court considered that Mr Schräder’s request could not be accepted as he had not offered any evidence to justify such measures. (39)
43. The General Court found that during the administrative phase of the proceedings, Mr Schräder had failed to advance any material information (such as an ad hoc scientific study, an extract from a specialised publication, an expert report carried out at his request or even a simple statement from a botanical or horticultural expert) capable of constituting prima facie evidence to support his contention (repeated many times but never substantiated, and disputed by all the other parties to the proceedings) that chemical and mechanical treatment or the taking of cuttings such as that carried out in the present case might have distorted the results of the 1997 technical examination. (40) Moreover, while the Board preferred the arguments of the CPVO and Mr Hansson, it did not come to that conclusion ‘unilaterally and without verification’ (as Mr Schräder maintained), but by relying on its own knowledge and expertise in botanical matters, after having examined, inter alia, whether it was still possible to describe LEMON SYMPHONY in 2005 by reference to the 1997 test guidelines and explaining the reasons why it intended to accept the CPVO’s and Mr Hansson’s arguments rather than Mr Schräder’s. (41)
44. The General Court ruled that Mr Schräder had not proved to the requisite legal standard that the Board had infringed the rules on burden of proof and the taking of evidence. (42) By making his claim, Mr Schräder was in effect seeking to obtain a fresh assessment of the relevant facts and evidence. (43)
45. The General Court went on to reject Mr Schräder’s other arguments criticising the Board for not responding to his arguments concerning the unreliability of the 1997 technical examination. First, it held that that technical examination had been carried out on appropriate plant material, namely the cuttings originally taken from the plants sent to the Bundessortenamt by Mr Hansson. Second, Mr Schräder had failed to identify any other plant variety from which LEMON SYMPHONY, even if described as having a ‘semi-erect to horizontal’ attitude of shoots, was not clearly distinguishable in 1997. That assessment was consistent with the principal arguments set out by the CPVO and Mr Hansson. (44) Thus, even if, as Mr Schräder claimed, the 1997 technical examination found an incorrect level of expression regarding the characteristic ‘attitude of shoots’ and a different level of expression should have been attributed from 1997 onwards, that would not have had any effect on the assessment of the distinctive character of LEMON SYMPHONY for the purposes of Article 7 of the Regulation, since that assessment was not determined exclusively, if at all, by reference to that characteristic. (45) In that respect, the 2005 adapted description of LEMON SYMPHONY differed from the 1997 description only in that it changed the characteristic ‘attitude of shoots’ from ‘erect’ to ‘semi-erect’. (46) Furthermore, Mr Schräder had not established that the effect of that change was that the DUS (47) criteria had not been satisfied in 1997. Thus, the CPVR would have been granted for LEMON SYMPHONY in any event. (48) Moreover, the Board expressly rejected Mr Schräder’s claim that if the examination of SUMOST 01 been conducted using the 1997 description of LEMON SYMPHONY the two varieties would have been found to be clearly distinct. (49)
46. The General Court ruled that in any event, Mr Schräder’s technical arguments could not succeed, in the light of the technical considerations expressed in the contested decision, which were subject to a limited review, and in the light of the arguments in response submitted by the CPVO and Mr Hansson. (50) In particular, the fact that the plant material sent by Mr Hansson to the Bundessortenamt did not meet the requirements set by that office in its letter of 6 November 1996 was not conclusive. (51)
47. In relation to the dispute as to the characteristic ‘attitude of shoots’, the General Court pointed out that the question was whether that characteristic should be determined according to relative or absolute criteria. (52) It rejected Mr Schräder’s submissions and concluded, citing the Bundessortenamt’s explanations, that the characteristic should be subject to a relative and comparative assessment between varieties of the same species. (53) The General Court found that LEMON SYMPHONY remained exactly the same between 1997 and 2005. There was no material amendment of the description affecting the identity of the variety, but merely an amendment of the terms originally chosen. That did not change the identity of the variety but merely enabled it to be described more accurately, in particular by delimiting it in relation to other varieties of the species. (54) Finally, in reaching that conclusion, the General Court took into account photographs of the plants on the file derived from the proceedings before the German courts. (55)
Arguments of the parties
48. Mr Schräder advances four arguments in support of his first ground. He submits that the General Court erred in law by ruling that in annulment proceedings the Board does not investigate the facts of its own motion. In so doing it: (i) infringed Article 51 of the Implementing Regulation; (ii) erred in considering that annulment proceedings are adversarial in nature; (56) (iii) distorted the facts in stating that he had argued that the burden of proof rested on the CPVO; and (iv) violated his fundamental rights by refusing to examine the evidence he had offered in the proceedings before that court.
49. The CPVO states that the General Court’s description of the administrative proceedings before the Board is inaccurate in that the Board is entitled to investigate the facts of its own motion. It nevertheless submits that the first ground is unfounded and/or inoperative; and inadmissible in so far as Mr Schräder seeks a reexamination of the facts.
50. Mr Hansson supports the CPVO.
Analysis
51. In examining Mr Schräder’s first ground of appeal it is necessary to interpret Article 76 of the Basic Regulation. Are such proceedings investigative or adversarial in nature; and does the party seeking annulment bear the burden of proof? The parties agree that the General Court erred in ruling that Article 76 of the Regulation does not apply to proceedings before the Board.
52. I too agree with that view.
53. I shall start by considering Article 76 in relation to proceedings before the CPVO, before turning to the Board. According to the first limb of Article 76 the CPVO must investigate the facts of its own motion to the extent that they concern the substantive and technical examinations. (57) Thus, where it is submitted in annulment proceedings that the conditions in Article 7 (concerning the distinctness of a plant variety) have not been met, the Office has an express obligation to investigate the facts.
54. It is true that the second limb of Article 76 provides that the parties also have a role in submitting evidence, in so far as the CPVO must disregard facts or items which have not been submitted in accordance with the relevant time limit. The party seeking annulment clearly has a role and a right to submit evidence in support of his application. (58)
55. However, the wording means that the CPVO may not make a decision solely on the basis that the person seeking annulment has failed to satisfy the burden of proof, because it has an express obligation to investigate the facts concerning the technical examination of its own motion.
56. Furthermore, the relevant provisions of the Implementing Regulation (59) suggest that the proceedings are more investigative than adversarial in nature in so far as the Office directs proceedings with regard to the taking of evidence and the commissioning of expert reports. In contrast, in a purely adversarial process the applicant bears the burden of proof in establishing his case and the defendant has to demonstrate that the conditions on which the defence is based are satisfied.
57. The provisions governing the procedure before the CPVO apply equally to the Board. (60) In deciding on appeal from a decision of the CPVO the Board may exercise ‘any power which lies within the competence of the Office’. (61) Therefore, as the CPVO has a broad discretion in carrying out its functions (62) and a clear and established role under Article 76 of the Regulation to investigate facts of its own motion, in particular relating to the technical examination, it follows from the express wording of Article 72 of the Regulation and Article 51 of the Implementing Regulation that Article 76 applies mutatis mutandis to the Board.
58. I am not suggesting that the Board must request a technical examination for the purposes of Article 55(1) whenever annulment proceedings are brought on the grounds that the requirements of Article 7 regarding distinctness are not met. (Nor is that Mr Schräder’s case. He considers that the 1997 technical examination was invalid and that if the Board had investigated the evidence available it would inevitably have reached that conclusion. The Board rejected that view and the General Court confirmed its findings.) I do however consider that the General Court erred in law by interpreting Article 76 of the Basic Regulation as being inapplicable to proceedings before the Board.
59. That said, I agree with the General Court that, in relation to the CPVR, there is no equivalent to the absolute and relative grounds for refusal to register a trade mark. In CPVR annulment proceedings the pertinent point is (in the instant case) whether the conditions governing the distinctness of the variety in Article 7 of the Regulation are met. That investigation requires technical knowledge and expertise which reside with (the Office and) the Board of Appeal in carrying out the necessary assessment. That process is not the same as that governed by the Community trade mark regime, which seeks to establish in opposition proceedings whether the proprietor of an earlier trade mark can demonstrate certain elements, such as genuine use of the earlier trade mark. Those issues do not arise in annulment proceedings under the CPVR regime, such as the present, where the question is whether, at the time that the CPVR was granted (in 1999, based upon the 1997 technical examination), LEMON SYMPHONY was a distinct variety. (63) In that respect Mr Schräder’s submissions concerning the provisions governing the burden of proof and the taking of evidence in the context of the CTMR are irrelevant.
60. The General Court also refers to Article 63(1) of the Designs Regulation. In my view that too provides a different framework to CPVR and therefore does not impugn the judgment under appeal. First, Article 63(1) contains a general rule that in design proceedings OHIM is to examine the facts of its own motion. That rule is qualified in relation to invalidity proceedings, where OHIM is restricted to examining the facts and evidence provided by the parties. That follows from the fact that such proceedings cannot be initiated by OHIM itself under the Designs Regulation. (64) There is no equivalent to that requirement in relation to annulment proceedings under Article 20 of the Basic Regulation.
61. Furthermore, Mr Schräder is correct in criticising the General Court’s description of his plea as being based on the premiss that the burden of proof was borne by the CPVO. That statement is not borne out by the General Court’s description of his case in paragraph 105 of its judgment. However, the General Court’s error does not constitute a distortion of the facts. (65) It is not a factual finding, but rather an incorrect description of his plea. It is thus irrelevant to the validity of the judgment under appeal.
62. Were Mr Schräder’s fundamental rights to good administration and to a fair hearing infringed as a result of those errors?
63. Mr Schräder’s case before the General Court was that the Board had based its decision exclusively on the facts put forward by the CPVO and Mr Hansson. He claimed that the Board should instead have gathered evidence of its own motion and then assessed the evidence that he had advanced, in particular concerning his contention that the 1997 technical examination was irredeemably flawed because (i) the plants tested had been derived from cuttings treated with growth regulators; and (ii) such treatment did not ‘wear off’ during the examination period.
64. Mr Schräder argued that, in so doing, the Board infringed his fundamental rights to have his affairs handled impartially and fairly (Article 41 of the Charter) and to an effective remedy and a fair hearing (Article 47 of the Charter). He now submits that in reaching its decision the General Court did not examine whether the Board had carefully and impartially examined all the relevant elements of the case. Furthermore, the General Court failed to assess those facts that were not sufficiently investigated by the Board; it simply confirmed that tribunal’s earlier distortion of the facts. If the General Court had not made those errors it would have ruled that the Board had infringed his fundamental rights in reaching its decision. By committing those errors the General Court itself infringed his rights under Articles 41 and 47 of the Charter.
65. I do not accept Mr Schräder’s submission.
66. The General Court found, first, that Mr Schräder had not at any stage of the administrative proceedings advanced any element capable of constituting prima facie evidence to support his contention that chemical and mechanical treatment or the taking of cuttings (such as that carried out in the present case) might have distorted the results of the technical examination of LEMON SYMPHONY in 1997. (66) Second, the General Court rejected his argument that the Board reached its conclusion solely by reference to the evidence submitted by Mr Hansson and the CPVO. It considered that, although the Board preferred those submissions, it relied on its own knowledge and expertise in botanical matters. (67) Third, the General Court considered that Mr Schräder was in effect seeking to obtain a fresh assessment of the facts and the evidence. (68) It then examined the Board’s findings and considered them to be compatible with the objective data on the case file. Fourth, it observed that, in the Board’s experience it was a ‘well known’ fact (69) that the practice of taking cuttings applied to all varieties used in the technical examination. Fifth, it considered that Mr Schräder was merely calling into question the Board’s findings in that respect. (70)
67. In making that assessment the General Court did not in my view simply confirm the Board’s decision. Rather, it conducted a full and complete review of the proceedings before the Board. It took account of the evidence submitted by all parties. It found that Mr Schräder had submitted no evidence to support his submissions. It also found that the Board had relied on its own expertise in assessing the factual and technical elements of his case. (71)
68. I therefore consider that Mr Schräder’s fundamental rights to good administration and to an effective remedy and a fair hearing have not been infringed.
69. Mr Schräder also submits that the General Court failed to take into account the fact that the Board had not made a statement of the grounds for its decision in accordance with Article 75 of the Basic Regulation.
70. I consider that there is no breach of that provision. In determining whether the 1997 technical examination was valid, the General Court examined the grounds on which the Board’s decision was based. It found that the Board had excluded Mr Schräder’s factual premiss concerning the reliability of that examination. It considered that there was no manifest error vitiating those assessments for the reasons stated in point 67 above. Furthermore, it found that he had not shown in 1997 that LEMON SYMPHONY was clearly distinguishable from any other plant variety. Finally, the General Court rejected Mr Schräder’s submissions questioning the effect of the 1997 technical examination on the basis that there was an incorrect finding as to the level of expression attributed to the characteristic ‘attitude of shoots’. It considered that that characteristic had no effect on the assessment of the distinctive character of LEMON SYMPHONY for the purposes of Article 7 of the Regulation.
71. I therefore consider Mr Schräder’s fourth argument to be unfounded.
72. Whilst it is true that the General Court erred in its interpretation of Article 76 of the Basic Regulation and that its description of the incidence and significance of the burden of proof in annulment proceedings is incorrect, the contested judgment is not based upon those errors. What matters is that the General Court correctly interpreted Articles 7 and 20 of the Regulation. It concluded that the Board had correctly decided that, contrary to Mr Schräder’s arguments, LEMON SYMPHONY was distinct because it was distinguishable by reference to the expression of characteristics resulting from genotype rather than from mechanical or chemical interference. It is settled case-law that the Court has no jurisdiction to establish facts or to examine the evidence which the General Court accepted in support of those facts, unless that evidence has been distorted. That is not the case here. (72)
73. The first ground of appeal therefore cannot succeed. That ground underpins Mr Schräder’s whole appeal inasmuch as the remaining five grounds turn on whether the General Court’s interpretation of Articles 7 and 20 is correct. I shall therefore address each of those grounds only briefly in turn.
Second ground: measures of inquiry
74. Mr Schräder complains that the General Court erred in confirming the Board’s decision rejecting his request for measures of inquiry. The purpose of his request had been to obtain expert evidence to the effect that chemical and mechanical treatment or the taking of cuttings such as that carried out in the present case distorted the results of the 1997 technical examination. The General Court rejected his argument on the ground that he had failed to submit prima facie evidence in support of that request. Mr Schräder advances four arguments in support of the second ground of appeal. In brief, he alleges that the General Court: (i) infringed the rules concerning the burden of proof and the taking of evidence with regard to his application for measures of inquiry; (ii) failed to state reasons and denied him a fair hearing and an effective remedy; (iii) raised of its own motion an issue that was not put to it by the parties and was not a matter of public policy, thereby unlawfully extending the scope of the proceedings; and (iv) wrongly applied the Court’s case-law in reaching its decision.
75. Those arguments are four variants on the same theme and I shall consider them together.
76. As the Regulation makes no separate provision for measures of inquiry in the administrative phase, it follows from Article 81 that the principles of procedural law generally recognised in the Member States apply to proceedings before the Board (or the CPVO). In my view, the General Court was correct in applying principles from the Court’s case-law (73) to the effect that the person seeking measures of inquiry must put forward evidence to justify obtaining them. The purpose of that rule is to ensure that entirely frivolous demands are not pursued. It seems to me that, in referring to the Court’s case-law, the General Court respected the provisions of Article 81 of the Regulation.
77. It is settled case-law that the duty incumbent upon the General Court (under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union) to state reasons for its judgments does not require it to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds on which the judgment under appeal is based and provides the Court of Justice with sufficient material for it to exercise its powers of review on appeal. (74)
78. The General Court provided a full account of its reasons in paragraphs 136 to 139 of the judgment under appeal. In setting out those reasons the General Court was simply applying legal principles to the facts before it. That seems to me to be entirely unexceptionable.
79. I therefore consider the second ground of appeal to be unfounded.
Grounds 3, 4, 5 and 6
80. Mr Schräder focuses on various aspects of the alleged flaws in the 1997 technical examination in Grounds 3, 4, 5 and 6. I shall therefore consider them together.
81. In accordance with Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the facts or evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. (75)
82. In essence Mr Schräder complains that the General Court erred in making the following findings. First, that the practice of propagating specimens for testing by means of cuttings is a ‘well known’ fact (Ground 3). (76) Second, that the use of growth regulators on those specimens did not affect the validity of the tests (Ground 4). (77) Third, that the description of the characteristic ‘attitude of shoots’ did not affect the assessment of the distinctive character of LEMON SYMPHONY (Ground 5). (78) Fourth, in deciding that the description of that particular characteristic is subject to a comparative assessment between varieties of the same species (Ground 6). (79)
83. The General Court rejected Mr Schräder’s complaints.
84. Mr Schräder now seeks to demonstrate that the General Court could not reasonably have concluded that the facts and circumstances were not sufficient to establish that the 1997 technical examination was irredeemably flawed. Although formally he is pleading errors of law, in reality he is questioning the General Court’s assessment of the facts and the probative value it attached to those facts.
85. In the light of the Court’s established case-law, Grounds 3, 4, 5 and 6 must therefore be considered inadmissible.
86. I add that in my view they are in any event unfounded.
87. Distortion of facts and/or evidence exists where without recourse to new evidence the existing assessment of the evidence is manifestly incorrect. (80) The alleged errors identified by Mr Schräder are that the General Court: (i) stated that the author of a note on the case file was the Bundessortenamt’s expert, whereas he believes it to have been an official of the CPVO; and (ii) indicated that the only issue in dispute was whether the characteristic ‘attitude of shoots’ should be determined according to relative or absolute criteria.
88. The first point is a matter of detail concerning the author of a file note, the content of which is not challenged. The second concerns the General Court’s characterisation of Mr Schräder’s argument rather than being a matter of evidence. Neither point shows that the General Court committed a manifest error of assessment: neither impinges upon the facts and circumstances of the 1997 technical examination in a way that affects the assessment of that examination.
89. Furthermore, I recall that the parameters of the General Court’s jurisdiction for review are set by Article 73(2) of the Basic Regulation. It was not therefore required to carry out a complete and detailed factual assessment in order to determine whether or not LEMON SYMPHONY lacked distinctness for the purposes of Article 7(1) of that regulation (in the context of Mr Schräder’s application for annulment under Article 20). Rather, the General Court was entitled, in the light of the scientific and technical complexity of that issue, to limit itself to a review of manifest errors of assessment. (81)
90. The General Court was therefore entitled to reach the conclusion that the evidence on the file was sufficient to permit the Board to rule that the 1997 technical examination was not invalid on the grounds that the material used was defective and that Mr Schräder had failed to demonstrate that LEMON SYMPHONY was not clearly distinguishable from any other plant variety in 1997.
91. Furthermore, it is clear from the relevant paragraphs of the judgment under appeal (82) that in reaching its conclusions the General Court conducted a thorough review of the Board’s decision. In so doing it provided reasons for its findings which are based upon the grounds and the evidence put forward by the parties to the proceedings.
92. I therefore conclude that if (quod non) Grounds 3, 4, 5 and 6 are admissible, they are in any event unfounded.
Costs
93. If the Court agrees with my assessment that the appeal should be dismissed, then, in accordance with Articles 137, 138, 140 and 184 of the Rules of Procedure (read together), Mr Schräder, the unsuccessful party on all grounds of appeal, should be ordered to bear the costs.
Conclusion
94. I therefore consider that the Court should:
– dismiss the appeal; and
– order Mr Schräder to pay the costs.