Judgments nº T-737/18 of Tribunal General de la Unión Europea, June 25, 2020

• Resolution Date: June 25, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-737/18

(Plant variety rights - Application for amendment of the date of expiry of the Community protection of plant variety rights in respect of the Siberia variety of the species Lilium L. - Appeal before the Board of Appeal of the CPVO - Inadmissibility - Obligation to state reasons - Article 75 of Regulation (EC) No 2100/94 - Effective judicial protection - Article 67(1) and Article 87 of Regulation No 2100/94 - Correction of patent mistakes - Article 53(4) of Regulation (EC) No 874/2009) In Case T-737/18,

Siberia Oriental BV, established in ’t Zand (Netherlands), represented by T. Overdijk, lawyer,

applicant,

v

Community Plant Variety Office (CPVO), represented by M. Ekvad, F. Mattina and O. Lamberti, acting as Agents,

defendant,

ACTION brought against the decision of the Board of Appeal of the CPVO of 15 October 2018 (Case A 009/2017), concerning an application for amendment of the date of expiry of Community protection of plant variety rights in respect of the Siberia variety of the species Lilium L.,

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli, President, C. Iliopoulos (Rapporteur) and R. Norkus, Judges,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the application lodged at the Registry of the General Court on 17 December 2018,

having regard to the response lodged at the Court Registry on 1 April 2019,

further to the hearing on 23 January 2020,

gives the following

Judgment

Background to the dispute

1 On 28 July 1995, the applicant, Siberia Oriental BV, 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). That application was registered under number 1995/0101.

2 The plant variety right for which Community protection was sought is the Siberia variety of the species Lilium L.

3 In its application for a Community plant variety right, the applicant stated that that variety had been sold for the first time on the territory of the European Union in January 1993. The first certificate of plant variety protection was issued on 8 April 1993 in the Netherlands, before Regulation No 2100/94 entered into force.

4 In its decision of 2 August 1996 (‘the decision granting a plant variety right’), the CPVO granted a Community plant variety right for the variety ‘Siberia’, and set the date of expiry thereof at 1 February 2018. That expiry date was entered on the Register of Applications for Community Plant Variety Rights (‘the Register’) referred to in Article 87 of Regulation No 2100/94.

5 By email of 24 October 2011, the applicant requested that the CPVO provide clarifications as to the method that it had adopted in 1996 to calculate the duration of the Community plant variety right in respect of the Siberia variety. By email sent the next day, the CPVO supplied the applicant with the information requested.

6 From 2015 to 2017, the CPVO and the applicant continued their exchanges with regard to the calculation method for the duration of the plant variety right in respect of the Siberia variety.

7 On 24 August 2017, the applicant reiterated its view that the duration of the plant variety right in respect of the Siberia variety ought to have been calculated, first, on the basis of Article 19 of Regulation No 2100/94. Furthermore, according to the applicant, the CPVO ought, next, to have reduced the duration of the plant variety right in accordance with Article 116(4) of that regulation, by deducting the period between the time when the Siberia variety was first placed on the market and the entry into force of that regulation. Accordingly, the applicant requested that the CPVO amend the date of expiry of the plant variety right granted for the Siberia variety by replacing the date of 1 February 2018 with that of 30 April 2020.

8 In its decision of 23 October 2017, the CPVO declared inadmissible the application for amendment of the date of expiry of the plant variety right entered on the Register in respect of the Siberia variety. It considered, first, that the two-month time limit for bringing an appeal against the decision, provided for in Article 69 of Regulation No 2100/94, had already expired. It found, second, that Article 53(4) and (5) of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Council Regulation No 2100/94 as regards proceedings before the CPVO (OJ 2009 L 251, p. 3) did not apply in the case in point in so far as the decision of the CPVO was not vitiated by any linguistic errors, errors of transcription and patent mistakes. The CPVO held, third, that there was no legal basis for amending the date of entry of the Community plant variety right in the Register.

9 On 23 November 2017, on the basis of Article 67 of Regulation No 2100/94, the applicant brought an appeal before the Board of Appeal of the CPVO against the decision of 23 October 2017. That appeal also comprised an application for interlocutory revision in accordance with Article 70 of Regulation No 2100/94.

10 By decision of 8 December 2017, the CPVO refused the application for interlocutory revision under Article 70 of Regulation No 2100/94.

11 The oral proceedings before the Board of Appeal were held on 24 September 2018. At the hearing, the applicant claimed, inter alia, that its appeal was admissible in so far as it was based on Articles 67 and 87 of Regulation No 2100/94. As the legal basis of its appeal, the applicant also relied on Article 53(4) of Regulation No 874/2009 and the CPVO’s obligation to correct, of its own motion, any mistakes contained in the Register.

12 By decision of 15 October 2018 (‘the contested decision’), the Board of Appeal of the CPVO dismissed the appeal as inadmissible.

13 In the first place, the Board of Appeal found that the appeal could not be based on Article 67 of Regulation No 2100/94, read in conjunction with Article 87 thereof, as, in its view, those provisions relate to the initial entry in the Register of the date of expiry of the Community plant variety right granted and not to the amendment of that entry.

14 In the second place, it found that nor could the appeal be based on Article 53(4) of Regulation No 874/2009. According to the Board of Appeal, the decision of the CPVO of 23 October 2017, whereby it rejected the application for amendment of the date of expiry, is not a decision open to appeal pursuant to Article 67(1) of Regulation No 2100/94. It is not, in particular, a decision relating to the entry or deletion of data on the Register, within the meaning of Article 87 of Regulation No 2100/94. The Board of Appeal stated that the same applied to the alleged refusal of the CPVO to exercise its power to correct, of its own motion, any mistakes in the Register.

15 In the third place, the Board of Appeal, endorsing the grounds of the decision of 23 October 2017, stated that a supposed error in the calculation of the date of expiry of the Community plant variety right cannot be considered a patent mistake, within the meaning of Article 53(4) of Regulation No 874/2009. It added that the fourth indent of Article 116(4) of Regulation No 2100/94 could, prima facie, be interpreted in several ways.

16 In the fourth and last place, the Board of Appeal found that the appeal was inadmissible on the ground that it had been lodged after the expiry of the two-month time limit laid down in Article 69 of Regulation No 2100/94. Having found the appeal to be inadmissible, the Board of Appeal did not rule on the interpretation of Article 116 of Regulation No 2100/94.

Forms of order sought

17 The applicant claims that the Court should:

- annul the contested decision;

- order the CPVO to enter the date of 30 April 2020 in the Register instead of the date of expiry currently set out therein.

18 The CPVO contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs incurred by the CPVO.

Law

Admissibility

Admissibility of the applicant’s second head of claim

19 In its second head of claim, the applicant is asking the Court to order the CPVO to enter the date of 30 April 2020 in the Register instead of the date of expiry currently set out therein.

20 In its defence, the CPVO argues that this second head of claim is inadmissible.

21 It is settled case-law that, in an action brought before the Courts of the European Union against the decision of the Board of Appeal of the CPVO, the CPVO is required, under Article 73(6) of Regulation No 2100/94, to take the measures necessary to...