Review of Community plant varieties decisions: the ECJ speaks

Author: Gert Würtenberger (Wuesthoff & Wuesthoff, Munich)

Ralf Schräder v Community Plant Variety Office (CPVO), Case C-38/09 P, Court of Justice of the European Union, 15 April 2010

Citation: Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpq088

The European Court of Justice (ECJ) upheld the rejection of an application by the Community Plant Variety Office (CPVO), confirmed by the Board of Appeal of the Office and the Court of First Instance due to lack of distinctness of the candidate variety compared to a reference variety, while sustaining the General Court's opinion of the wide discretion of the CPVO. Finally, the ECJ discussed the extent to which the General Court may review decisions by the Office and its Board of Appeal and the scope of review of the ECJ concerning judgments of the General Court in plant variety matters.

Legal context

In the framework of the examination of whether a plant variety fulfils the protection requirements, distinctness, uniformity and stability, as defined in Article 6 of Council Regulation on Community Plant Variety Rights 2100/94, according to Article 76 of the Regulation the Office is obliged to conduct all necessary investigations on the facts of its motion to the extent that they fall under the examination as determined by Articles 54 and 55 of the Regulation. Moreover, the Office must disregard facts of items of evidence which have not been submitted within the time-limit set by the CPVO.


The application for a Community plant variety right for the plant variety SUMCOL 01, a plant of the species Plectranthus ornatus and the result of the crossing of a plant of this species and a plant of the species Plectranthus ssp was rejected by the CPVO for lack of distinctness. Within examination proceedings, doubts arose about whether the variety was new as there were indications that the candidate variety was a wild form originating in South Africa, which had been marketed for years in that country as well as in Germany. The Bundessortenamt, as the Examination Office of the CPVO, approached Kirstenbosch Botanical Gardens (South Africa) with a request for cuttings or seeds of Plectranthus comoses or Plectranthus ornatus. Following this request, a gentleman from Kirstenbosch Botanical Gardens provided cuttings, which, however, originated from the private garden of the sender, a plant expert working with Kirstenbosch. In order to exclude the possibility that any differences between the candidate variety and the plant material from South Africa, used as the reference variety, were due to environmental factors, cuttings had been made from the reference variety. As a result of the comparison trials, the Examiner responsible for the technical examination regarded differences between the candidate variety and the variety obtained from South Africa as minimal although, according to an email from the Examiner, the differences were ‘significant’ but barely visible. Following an exchange of communications between the applicant and CPVO, the Office refused the application for a Community plant variety for lack of distinctness of the SUMCOL 01 variety in accordance with Article 7 of Regulation 2100/94.

The Board of Appeal, following a hearing, was not entirely convinced that the reference variety was a matter of common knowledge. For this reason, it ordered the taking of evidence, however making it dependent upon an advance payment of fees by the appellant of 6.000 under Article 62 of Regulation 1239/95. The appellant claimed that he was not required to provide evidence and had not sought the taking of evidence which had been ordered as it was the CPVO's duty to determine distinctness. For this reason, the appellant refused to pay the fees.

The Board of Appeal dismissed the appeal, concluding that the evidence at hand sufficed and that the requested taking of evidence was no longer necessary to enable it to decide on the question of distinctness of the candidate variety. As the Board considered SUMCOL 01 as not clearly distinguishable from a reference variety which was a matter of common knowledge at the time the applications were filed, the protection requirement ‘distinctness’ was not given.

The applicant appealed this decision to the General Court. Before dealing with the plea that the Board of Appeal had erred in the application of the criterion of distinctness, the General Court pointed to ‘preliminary considerations as to the scope of the Court's power of judicial review’. In that context, it referred to longstanding ECJ case law in other fields of Community law in which wide discretion of the Community authority had been confirmed when complex scientific or technical issues must be decided upon. The Court confirmed that case law might be generally applicable in cases in which administrative decisions are based upon complex appraisals in other scientific domains, such as botany or genetics. In these cases, the exercise of discretion is subject to a very limited judicial review, restricted to examination of the accuracy of the findings of fact and law and control of the Authority's activities; the exercise of this discretion must be neither excessive nor represent misuse of its powers. As the Court recognised the examination of distinctness as being of a complex scientific and technical nature, leading to limited possibility for reconsideration by the Court, the Court confirmed the correctness of the decisions of the CPVO and the BOA.

The applicant contested the judgement of the General Court by way of an action filed with the European Court of Justice.


The applicant raised two main pleas, the first of which discussed procedural defects whereas, at first sight, the second dealt with material deficiencies.

With the first plea, the applicant pointed to procedural deficiencies leading to the finding that SUMCOL 01 was not distinct from the variety from which the plant material was obtained from South Africa. In proceedings before the CPVO the applicant alleged that the material provided from South Africa and used as a reference variety was plant material from SUMCOL 01. This was, however, refuted by the Office as well as by the Board of Appeal due to the differences between the candidate variety and the reference variety revealed during the technical examination. In addition, the applicant raised arguments before the CPVO and the Board of Appeal against the holding that the reference variety was of common knowledge. Before the Board of Appeal, reference was made, inter alia, to the discussion of Plectranthus ornatus in various scientific publications which, in the Board's opinion, confirmed the statements of the gentleman of Kirstenbosch about the common availability in South Africa of the plants of the variety supplied by him. As the applicant did not substantiate and offer proof of his argument that the varieties discussed in the scientific publications were not the same as those supplied from South Africa and used for the technical examination, the Court confirmed that the Board of Appeal was in a position to regard the variety supplied as the same as that discussed in scientific literature. As the Board of Appeal did not base its assessment that the candidate variety is of common knowledge on the description in scientific literature, but made reference to it only in support of its opinion that common knowledge was proven by the plant material supplied from South Africa, there were no deficiencies in the Board of Appeal's conclusion that the reference variety was of common knowledge. In proceedings before the Court, the applicant argued that this holding was based on incomplete recording of statements made before the Board of Appeal, rendering of the minutes of the hearing in breach of Article 63(2) of Regulation 1239/95 and the General Court's reliance on items of evidence not in the case file, resulting in findings based on mere speculation as far as a certain communication was made by the Examiner during the technical examination.

The ECJ emphasized that pleading that the General Court could not reasonably conclude that the facts and circumstances referred to were not sufficient to refute conclusions by the Examination Division, and confirmed by the Board of Appeal, was formally a plea on an error of law, but called into question the factual assessment carried out by the General Court and, in particular, it disputed the probative value it attached to those facts. Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice limit an appeal only to points of law. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. Consequently, the Court regarded the submitted pleas as inadmissible.

As regards the appellant's argument that the General Court distorted the facts and evidence when it assessed the argument on questions of the distinctness of the candidate variety, the ECJ made it clear that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. It emphasised that the General Court is the sole authority in judging whether the evidence before it is sufficient and thus is not subject to review by the Court of Justice on appeal, unless the evidence available has been distorted or the inaccuracy of the findings of the General Court becomes apparent from the documents in the case file. In this context, the Court also stressed that facts not submitted by the parties before the departments of the CPVO cannot be submitted at the stage of the action brought before the General Court, as the General Court is called upon to assess the legality of the decision of the Board of Appeal on the basis of facts submitted to the Office and the Board of Appeal.

Further, the appellant claimed infringement of principles governing the taking of evidence, by stating that the General Court imposed excessive demands upon the Applicant and that the General Court's decision was finally based on distortion of facts and evidence. This lead to the incorrect appraisal of the probative value of the statements made by the South African person, Mr van Jaarsveld, who supplied the material of the candidate variety. This gentleman elucidated in detail to the Bundessortenamt the origin of the plant material in his garden, leaving the Board of Appeal no doubt that the variety was commonly known long before the application for SUMCOL 01. The Court found, however, that the appeal judgement was not marred by an error of law.

The second plea alleged contradictions, errors and breach of Community law concerning the account taken of scientific publications in order to establish that the reference variety was a matter of common knowledge, that the General Court erred in law in failing to take account of the Applicant's arguments concerning the infringement of Article 62 of the Regulation and finally alleging errors in law in assessing the Examiner's participation in the hearing.

The General Court accepted in the appeal decision that the detailed description of a variety appearing in a scientific publication can be taken into account as evidence that a variety is a matter of common knowledge within the meaning of Article 7(2) of Regulation 2100/94. Apart from the fact that scientific literature was referred to merely as confirmation of Mr van Jaarveld's statement, the General Court included the reference purely for the sake of completeness. According to settled case law, the complaint directed against grounds of a judgement of the General Court included purely for the sake of completeness will be rejected outright since it cannot lead to the judgement being set aside and is therefore nugatory.

In proceedings before the Board of Appeal, the Board of Appeal heard the Examiner who performed the technical examination. The applicant argued that, due to lack of a decision ordering a measure to take evidence, the Examiner should not have been heard. However, the General Court regarded the Examiner as an agent of the CPVO and therefore measures to take evidence did not have to be decided upon in order to hear her. In the applicant's opinion, this holding was based on an error in law. The European Court of Justice confirmed the General Court's holding under Article 15(2) of Regulation 1239/95, that the acts performed by the Examiner of an office appointed by the CPVO as an examination office must be regarded as acts of the CPVO as far as third parties are concerned. As it is entirely for the President of the CPVO to decide upon the composition of his delegation, the Examiner had to be regarded as an agent. For this reason, her presence at the hearing did not require the adoption of a measure for taking evidence within Article 60(1) of Regulation 1239/95.

Practical significance

This case raised issues of the scope of discretion of the CPVO, of new facts in further proceedings, admissibility and the scope of judicial review of decisions of the CPVO and its Board of Appeal.

As is the case with regard to Community designs and Community trade marks, decisions taken by the CPVO are potentially subject to a three-tier review system, unless the CPVO does not change its decision appealed by an interlocutory revision. Decisions of the CPVO may be appealed to the Board of Appeal, followed by the possibility of judicial review by the General Court and, under Article 225 EC, by the Court of Justice on appeal.

The subject matter of review differs at each of those levels. While, according to Articles 71 and 72 of Regulation 2100/94, the Board of Appeal may re-examine the case and, in doing so, may itself exercise any power which lies within the competence of the CPVO, including conducting a new full examination as to the merits of the appeal in terms of both law and fact, proceedings before the General Court and the Court of Justice are much narrower. The General Court is called upon to review the lawfulness of an appeal, whereas the Court of Justice is limited to the control of legality of the decision or judgement of the General Court (Article 225 EC). Consequently the General Court considers whether a decision is, by reference to the time of its adoption by the Board of Appeal, initiated by one of the grounds mentioned in Article 73(1) of Regulation 2100/94, namely lack of competence, infringement of an essential procedural requirement, infringement of the Treaty of the Regulation on Community Plant Variety Rights, or of any rule of law related to their application or misuse of power. In contrast, the Court of Justice has no jurisdiction to review the decision taken by the Board of Appeal or the decision originally taken by the CPVO, nor is the appeals procedure intended as a general re-examination of the application brought before the General Court. In proceedings before the Court of Justice, its jurisdiction is limited to reviewing the findings of law of the General Court on the pleas argued before that court.

In this case the General Court as well as the Court of Justice declared case law applicable according to which judicial review of decisions of Community institutions is limited. These are cases where Community authorities are called upon to make complex assessments of a technical, scientific, economic or social nature. When reviewing an administrative decision based on such an appraisal, the Community adjudicator should not substitute its own assessment for that of the competent authority. Consequently, judicial review in such cases is limited to verifying that the measure in question is not vitiated by any manifest errors or misuse of power and that the authority concerned has not manifestly exceeded the limits of its discretion. In such cases, the court can only examine whether the evidence relied upon is factually accurate, reliable and consistent and whether that evidence contains all the information that must be taken into account in order to assess the complex situation concerned.

As the administrative decision in Community Plant Variety Rights is a result of complex assessment of the type referred to in that case law, as is the case when appraising the distinctive character of a plant variety in light of the criteria laid down in the Regulation, decisions of the CPVO and its Board of Appeal are subject to very limited judicial review. As this case shows, the CPVO has extremely wide discretion in the evaluation of the results of the technical examination. While it is the duty of the Office to examine ex officio all reasonable sources in order to decide upon the protection requirements – distinctness, stability and uniformity – applicants need to introduce substantiated evidence of facts in support of the protection criteria even if, in the opinion of the CPVO, they are of minor significance. Otherwise there is a risk that such facts will not be considered and followed up in greater detail ex officio, whereas – for procedural reasons – the applicant will be precluded from submitting such facts and evidence in further proceedings.

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