Judgments nº T-112/18 of Tribunal General de la Unión Europea, September 24, 2019

• Resolution Date: September 24, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-112/18

(Plant varieties - Nullity proceedings - Cripps Pink apple variety- Articles 10 and 116 of Regulation (EC) No 2100/94 - Novelty - Derogative grace period - Definition of exploitation of the variety - Commercial evaluation - Article 76 of Regulation (EC) No 874/2009 - Late submission of evidence before the Board of Appeal - Evidence submitted for the first time before the General Court)

In Case T-112/18,

Pink Lady America LLC, established in Yakima, Washington (United States), represented initially by R. Manno and S. Travaglio, and subsequently by R. Manno, lawyer,

applicant,

v

Community Plant Variety Office (CPVO), represented by M. Ekvad, F. Mattina and M. Garcia Monco-Fuente, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of the CPVO and intervener before the General Court, being

Western Australian Agriculture Authority (WAAA), established in South Perth (Australia), represented by T. Bouvet and L. Romestant, lawyers,

ACTION brought against the decision of the Board of Appeal of the CPVO of 14 September 2017 (Case A 007/2016), relating to nullity proceedings between the WAAA and Pink Lady America LLC,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, I.S. Forrester (Rapporteur) and E. Perillo, Judges,

Registrar: I. Dragan, Administrator,

having regard to the application lodged at the Court Registry on 23 February 2018,

having regard to the response of the CPVO lodged at the Court Registry on 24 May 2018,

having regard to the response of the intervener lodged at the Court Registry on 28 May 2018,

further to the hearing of 14 May 2019,

gives the following

Judgment

Background to the dispute

1 On 29 August 1995, the predecessor in title of the Western Australian Agriculture Authority (‘the WAAA’ or ‘the intervener’), the Department of Agriculture and Food Western Australia (‘the Department’), filed an application for a Community plant variety right at the Community Plant Variety Office (CPVO) pursuant to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1, ‘the Basic Regulation’). The plant variety in respect of which the right was sought is ‘Cripps Pink’, a variety of apple belonging to the species Malus Domestica Borkh. The variety in question was developed by Mr John Cripps (‘the breeder’), a researcher in the Plant Industries division of the Department, by crossing the Golden Delicious and Lady Williams varieties.

2 The application form for a Community plant variety right stated that the Cripps Pink apple trees were first marketed within the European Union in 1994 in France and first marketed outside the European Union, more specifically in Australia, in 1988.

3 On 12 March 1996, the CPVO informed the representative of the Department that the Cripps Pink variety did not fulfil the novelty requirement under Article 10 of the Basic Regulation.

4 In July 1996, the Department explained that 1988 should have been considered to be the date of the ‘first plantings in Australia for experimental purposes’. The Department went on to state that the relevant date for the purposes of Article 10 of the Basic Regulation was July 1992, being the date when Cripps Pink apple trees were marketed in the United Kingdom under the trade name ‘Pink Lady’.

5 On 15 January 1997, the CPVO granted Community plant variety right No 1640 to the Cripps Pink variety.

6 On 26 June 2014, the applicant, Pink Lady America LLC (‘the applicant’ or ‘PLA’), lodged an application for nullity in relation to the Cripps Pink Community plant variety right under Article 20 of the Basic Regulation, arguing that the Community plant variety right at issue did not fulfil the novelty conditions laid down in Article 10 of that regulation. On 19 September 2016, by Decision No NN 17, the CPVO dismissed the applicant’s nullity application.

7 On 18 November 2016, the applicant lodged an appeal with the Board of Appeal of the CPVO, claiming that the CPVO had erred in its assessment of the facts and the evidence and therefore requesting the Board of Appeal to rectify Decision No NN 17 of 19 September 2016 and to declare the Community plant variety right at issue null and void for lack of novelty pursuant to Article 10(1) of the Basic Regulation. In the alternative, the applicant requested that the Community plant variety right be declared null and void for lack of novelty pursuant to Article 10(1)(b), read in conjunction with Article 116 of that regulation.

8 By decision A 007/2016 of 14 September 2017 (‘the contested decision’), the Board of Appeal dismissed the applicant’s appeal as unfounded, stating, inter alia, that it had not provided evidence of sales or disposals of the Cripps Pink variety to third parties outside the European Union, by the breeder or with his consent, for purposes of exploitation of the variety prior to 29 August 1989.

9 In essence, the Board of Appeal considered, first, that the provisions of Article 10(1)(b) of the Basic Regulation should be applied as regards the determination of the grace period for sales or disposals outside the territory of the European Union (paragraph II B 3 of the contested decision); secondly, that various items of evidence established that commercial evaluation trials had been carried out which could not, however, be regarded under Article 10(1) of the Basic Regulation as constituting an exploitation of the variety at issue within the meaning of that provision (paragraphs II B 8 to 10 of the contested decision); and thirdly, that there were invoices from the ‘Olea Nurseries’ nursery demonstrating that it had sold the Cripps Pink variety in 1985, but that there was no evidence that the breeder had consented to these sales, the evidence in fact establishing that the variety at issue had been released for testing purposes only (paragraphs II B 10 to 12 of the contested decision).

Forms of order sought

10 The applicant claims that the Court should:

- annul the contested decision;

- annul Community plant variety right No 1640 granted to the Cripps Pink variety, for lack of novelty, pursuant to Articles 10 and 20 of the Basic Regulation;

- order the CPVO and the intervener to pay the costs.

11 The CPVO contends that the Court should:

- dismiss the application;

- order the applicant to bear the costs of the CPVO.

12 The intervener contends that the Court should:

- dismiss the application;

- order the applicant to pay the costs.

Law

1. The admissibility of the application for annulment of Community plant variety right No 1640 granted to the Cripps Pink variety

   13 By its second head of claim, the applicant requests the Court to declare Community plant variety right No 1640 granted to the Cripps Pink variety null and void.

   14 In that regard, it should be borne in mind that the purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of the CVPO, as provided for in Article 73 of the Basic Regulation. It follows that the Court does not have jurisdiction to review the legality of decisions taken by the lower-ranking bodies of the CPVO nor, therefore, to annul or vary them.

   15 Consequently, the second head of claim, seeking the annulment of Community plant variety right No 1640 granted to the Cripps Pink variety, must be declared inadmissible.

2. Substance

   16 In support of the first head of claim, seeking the annulment of the contested decision, the applicant raises two pleas in law. By its first plea, the applicant submits that the Board of Appeal infringed the combined provisions of Articles 10 and 20 of the Basic Regulation and Article 116 of that regulation by concluding, in essence, that the Cripps Pink variety fulfilled the novelty requirement at the time the Community plant variety right was granted in respect of that variety. By its second plea, the applicant submits that the Board of Appeal infringed Article 76 of the Basic Regulation, the general principles of legal certainty and the sound administration of justice and Article 50(3) of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of the Basic Regulation as regards proceedings before the CPVO (OJ 2009 L 251, p. 3), by declaring inadmissible the evidence submitted out of time by the applicant during the administrative proceedings. In addition, the applicant requests the General Court to admit evidence which was not submitted during the administrative proceedings.

   1. The first plea in law

      17 In support of its first plea, the applicant submits, first, that the Board of Appeal incorrectly applied Article 10(1)(a) of the Basic Regulation. Secondly, it considers that the Board of Appeal was wrong to rely on the International Convention for the Protection of New Varieties of Plants of 2 December 1961 (the ‘UPOV Convention’) as revised on 19 March 1991 in applying the provisions of that article. Thirdly, it contests the Board of Appeal’s assessment of the novelty condition set out in Article 10(1) of the Basic Regulation.

      (a) The application of Article 10(1)(a) of the Basic Regulation

      18 The applicant submits that the Board of Appeal was wrong to apply the six-year derogative grace period laid down in Article 116 of the Basic Regulation to commercial activities within the European Union as it did not first take into account the provisions of Article 10(2) of the Basic Regulation; the applicant maintains that the derogation laid down in Article 116 of the Basic Regulation may be applied under Article 10(2) of that regulation ‘only if the breeder preserves the exclusive right of disposal of these and other variety constituents, and no further disposal is made’, which is also for the breeder to prove.

      19 The CPVO, supported by the intervener, disputes that line of argument.

      20 As a preliminary point, it should be noted that Article 6 of the Basic Regulation provides that Community plant variety rights are to be...