Orders nº T-278/19 of Tribunal General de la Unión Europea, March 13, 2020

• Resolution Date: March 13, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-278/19

(Action for annulment - Plant varieties - Nullity proceedings - Sugar beet variety M 02205 - Decision to remit the case to the competent body of the CPVO for further action - Article 72 of Regulation (EC) No 2100/94 - No interest in bringing proceedings - Power to alter decisions - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

In Case T-278/19,

Aurora Srl, established in Padua (Italy), represented by L.-B. Buchman, lawyer,

applicant,

v

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

defendant,

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

SESVanderhave NV, established in Tienen (Belgium), represented by P. de Jong, lawyer,

ACTION brought against the decision of the Board of Appeal of the CPVO of 27 February 2019 (Case A 10/2013-RENV), concerning nullity proceedings between Aurora and SESVanderhave,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov, President, J. Passer and G. Hesse (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 26 April 2019,

having regard to the plea of inadmissibility raised by the intervener by document lodged at the Court Registry on 19 July 2019,

having regard to the plea of inadmissibility raised by the CPVO by document lodged at the Court Registry on 24 July 2019,

having regard to the applicant’s observations on the pleas of inadmissibility raised by the CPVO and by the intervener, lodged at the Court Registry on 4 September 2019,

makes the following

Order

Background to the dispute

Facts preceding Case T-140/15

Procedure for the grant of a Community plant variety right

1 On 29 November 2002, the intervener, SESVanderhave NV, applied to the Community Plant Variety Office (CPVO) for a Community plant variety right pursuant to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1). The Community plant variety right was sought for variety M 02205, a sugar beet variety of the species Beta vulgaris L. ssp. Vulgaris var. altissima Döll.

2 The CPVO entrusted the Statens utsädeskontroll (Seed Testing and Certification Institute, Sweden; ‘the Examination Office’) with responsibility for carrying out the technical examination of the candidate variety, in accordance with Article 55(1) of Regulation No 2100/94. The Examination Office was required, inter alia, to examine whether the candidate variety was distinct from the most similar varieties whose existence was a matter of common knowledge on the date of application for a Community plant variety right within the meaning of Article 7(1) of Regulation No 2100/94. The sugar beet variety KW 043 was, inter alia, considered to be one of the varieties most similar to the candidate variety.

3 On 10 December 2004, the Examination Office sent to the CPVO the final technical report, along with the variety description and a document entitled ‘Distinctness Information’ (‘the comparative distinctness report’).

4 On the basis of the final technical report of the Examination Office, on 18 April 2005 the CPVO granted the intervener the Community plant variety right applied for, under Registration No EU 15118, for variety M 02205. Annexed to that decision were the documents supplied by the Examination Office, including the variety description and the comparative distinctness report.

5 On 20 April 2012, the applicant, Aurora Srl, informed the CPVO that an inconsistency had come to light in the certificate of registration for variety M 02205, namely that the states of expression relating to the characteristics ‘leaf blade colour’ and ‘leaf blade: undulation of the margin’, as included in the variety description, did not correspond to the states of expression in the comparative distinctness report.

6 Following a request for clarification from the CPVO on 23 April 2012, the Examination Office confirmed that the comparative distinctness report did contain an error. However, the Examination Office considered that that error did not affect the finding of distinctness as regards the candidate variety.

7 On 4 May 2012, the CPVO forwarded a corrected version of the comparative distinctness report to the applicant, indicating that there had been, in fact, an error in the transcription of the information taken from the official variety description.

8 Subsequently, the applicant informed the CPVO that other errors had come to light in the corrected version of the comparative distinctness report, namely that, in the corrected version of the document, the note corresponding to the ‘leaf blade colour’ characteristic had not been rectified. In that respect, the CPVO confirmed, on 11 May 2012, that the state of expression of variety M 02205 relating to that characteristic was not 5 but 4 - a number identical to that of variety KW 043. The ‘leaf blade colour’ characteristic was removed from the comparative distinctness report since, following the latter correction, that characteristic was no longer relevant for the purpose of distinguishing the candidate variety from variety KW 043, given that their respective states of expression were now identical.

9 In the course of the correspondence exchanged at that time between the Examination Office and the CPVO, the latter also queried whether the state of expression of varieties M 02205 and KW 043 was identical with regard to the ‘germity’ characteristic.

10 In the corrected version of the comparative distinctness report sent to the CPVO on 27 April 2012, the Examination Office maintained the reference to the ‘germity’ characteristic, while adding to its state of expression a percentage variation, namely 29% for the candidate variety as against 94% for reference variety KW 043.

Nullity proceedings before the CPVO at first instance

11 On 28 August 2012, the applicant lodged a request for a declaration that the Community plant variety right granted to the intervener was null and void, pursuant to Article 20 of Regulation No 2100/94, on the ground that the successive corrections made to the comparative distinctness report showed that variety M 02205 did not satisfy the ‘distinctness’ requirement, as defined in Article 7(1) of the regulation.

12 On 13 May 2013 - since, following the abovementioned corrections, it became apparent that the distinction between variety M 02205 and variety KW 043 lay, as submitted by the applicant, solely in the difference in percentage relating to the ‘germity’ characteristic - the CPVO contacted the Examination Office requesting that it check whether the ‘germity’ characteristic was the only distinguishing characteristic between those varieties or if other characteristics of that nature had also been observed during the technical examination.

13 On 14 May 2013, the Examination Office issued an updated version of the comparative distinctness report, including new characteristics which the Examination Office considered to be capable of establishing the distinction between the varieties concerned.

14 In the light of those characteristics, on 16 May 2013 the CPVO informed the parties to the nullity proceedings that variety M 02205 was distinct from all varieties that were a matter of common knowledge within the meaning of Article 7 of Regulation No 2100/94. In addition, the CPVO stated that the change in the characteristics that had occurred was due to the fact that the practice of the various Examination Offices varied in respect of both how they draft distinctness reports and how they choose the characteristics deemed relevant for the purpose of establishing the distinctness of a candidate variety. Moreover, according to the CPVO, it had been precisely on the basis that the practice of the various Examination Offices varied that the CPVO had justified its decision to opt for the ‘germity’ characteristic. However, as that characteristic had proved to be incapable of establishing the finding of distinctness, it had finally been removed from the list of characteristics in the final version of the comparative distinctness report, as drawn up on 9 September 2013.

15 As a result of the various corrections to the comparative distinctness report, the applicant - in oral submissions at the hearing before the CPVO - submitted additional arguments with a view to establishing that, at the time the Community plant variety right at issue was granted, variety M 02205 was not distinct from reference variety KW 043.

16 The applicant claimed, in particular, that the last and penultimate versions of the comparative distinctness report showed that the notes of expression that they contained, relating inter alia to reference variety KW 043, did not come from the comparative growing trials that took place in 2003 and 2004 but were sourced from their official variety descriptions, as established at the time a Community plant variety right was granted for each variety.

17 From 23 May 2013, the applicant made a number of requests to the CPVO to provide it with the results of the comparative growing trials carried out in 2003 and 2004. However, those requests were not successful during the administrative procedure before the CPVO, because it was claimed that such data had to be retained by the Examination Office. It was only on 2 March 2015 that the CPVO sent the results of those growing trials to the applicant.

18 By Decision NN 010 of 23 September 2013, the CPVO committee responsible for deciding on matters relating to the nullity and cancellation of Community plant variety rights (‘the committee’) rejected the applicant’s request for nullity under Article 20(1)(a) of Regulation No 2100/94, on the ground that variety M 02205 was clearly distinct from the reference varieties, including KW 043.

Proceedings before the Board of Appeal of the CPVO

19 On 4 October 2013, the applicant filed a notice...