MS v Saatgut-Treuhandverwaltungs GmbH.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Docket NumberC-522/21
Celex Number62021CJ0522
Date16 March 2023

Provisional text


16 March 2023 (*)

(Reference for a preliminary ruling – Intellectual property – Protection of plant varieties – Regulation (EC) No 2100/94 – Derogation provided for in Article 14(3) – Article 94(2) – Infringement – Right to compensation – Regulation (EC) No 1768/95 – Article 18(2) – Compensation for damage – Minimum lump sum calculated on the basis of quadruple the licence fee – Competence of the European Commission – Invalidity)

In Case C‑522/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Pfälzisches Oberlandesgericht Zweibrücken (Palatine Higher Regional Court, Zweibrücken, Germany), made by decision of 18 August 2021, received at the Court on 24 August 2021, in the proceedings



Saatgut-Treuhandverwaltungs GmbH,

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, L.S. Rossi, J.-C. Bonichot, S. Rodin and O. Spineanu-Matei (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: S. Beer, Administrator,

having regard to the written procedure and further to the hearing on 14 July 2022,

after considering the observations submitted on behalf of:

– MS, by N. Küster, Rechtsanwalt,

– Saatgut-Treuhandverwaltungs GmbH, by E. Trauernicht and K. von Gierke, Rechtsanwälte,

– the European Commission, by A.C. Becker, B. Eggers and G. Koleva, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 27 October 2022,

gives the following


1 This request for a preliminary ruling concerns the validity of Article 18(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights (OJ 1995 L 173, p. 14), as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998 (OJ 1998 L 328, p. 6) (‘Regulation No 1768/95’), in the light of the first sentence of Article 94(2) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).

2 The request has been made in proceedings between MS and Saatgut Treuhandverwaltungs GmbH (‘STV’) concerning the calculation of the amount of compensation for damage suffered by STV as a result of the illegal planting by MS of the KWS Meridian winter barley variety.

Legal context

Regulation No 2100/94

3 Article 11 of Regulation No 2100/94, entitled ‘Entitlement to Community plant variety rights’, provides, in paragraph 1:

‘The person who bred, or discovered and developed the variety, or his successor in title, both – the person and his successor – referred to hereinafter as “the breeder”, shall be entitled to the Community plant variety right.’

4 Article 13 of Regulation No 2100/94, entitled ‘Rights of the holder of a Community plant variety right and prohibited acts’, provides, in paragraphs 1 to 3:

‘1. A Community plant variety right shall have the effect that the holder or holders of the Community plant variety right, hereinafter referred to as “the holder”, shall be entitled to effect the acts set out in paragraph 2.

2. Without prejudice to the provisions of Articles 15 and 16, the following acts in respect of variety constituents, or harvested material of the protected variety, both referred to hereinafter as “material”, shall require the authorisation of the holder:

(a) production or reproduction (multiplication);

The holder may make his authorisation subject to conditions and limitations.

3. The provisions of paragraph 2 shall apply in respect of harvested material only if this was obtained through the unauthorised use of variety constituents of the protected variety, and unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents.’

5 Article 14 of the regulation, entitled ‘Derogation from Community plant variety right’, is worded as follows:

‘1. Notwithstanding Article 13(2), and for the purposes of safeguarding agricultural production, farmers are authorised to use for propagating purposes in the field, on their own holding, the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety, which is covered by a Community plant variety right.

2. The provisions of paragraph 1 shall only apply to agricultural plant species of:

(b) Cereals:

Hordeum vulgare L. – Barley

3. Conditions to give effect to the derogation provided for in paragraph 1 and to safeguard the legitimate interests of the breeder and of the farmer shall be established, before the entry into force of this Regulation, in implementing rules pursuant to Article 114, on the basis of the following criteria:

– there shall be no quantitative restriction of the level of the farmer’s holding to the extent necessary for the requirements of the holding,

– the product of the harvest may be processed for planting, either by the farmer himself or through services supplied to him, without prejudice to certain restrictions which Member States may establish regarding the organisation of the processing of the said product of the harvest, in particular in order to ensure identity of the product entered for processing with that resulting from processing,

– small farmers shall not be required to pay any remuneration to the holder; …

– other farmers shall be required to pay an equitable remuneration to the holder, which shall be sensibly lower than the amount charged for the licensed production of propagating material of the same variety in the same area; the actual level of this equitable remuneration may be subject to variation over time, taking into account the extent to which use will be made of the derogation provided for in paragraph 1 in respect of the variety concerned,

– monitoring compliance with the provisions of this Article or the provisions adopted pursuant to this Article shall be a matter of exclusive responsibility of holders; in organising that monitoring, they may not provide for assistance from official bodies,

– relevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services; relevant information may equally be provided by official bodies involved in the monitoring of agricultural production, if such information has been obtained through ordinary performance of their tasks, without additional burden or costs. …’

6 Article 94 of the regulation, entitled ‘Infringement’, is worded as follows:

‘1. Whosoever:

(a) effects one of the acts set out in Article 13(2) without being entitled to do so, in respect of a variety for which a Community plant variety right has been granted; …

may be sued by the holder to enjoin such infringement or to pay reasonable compensation or both.

2. Whosoever acts intentionally or negligently shall moreover be liable to compensate the holder for any further damage resulting from the act in question. In cases of slight negligence, such claims may be reduced according to the degree of such slight negligence, but not however to the extent that they are less than the advantage derived therefrom by the person who committed the infringement.’

7 Article 114 of Directive No 2100/94, under the heading ‘Other implementing rules’, provides, in paragraph 1:

‘Detailed implementing rules shall be adopted for the purpose of applying this Regulation. …’

Regulation No 1768/95

8 Regulation No 1768/95 was adopted on the basis of Article 114 of Regulation No 2100/94.

9 Article 5 of Regulation No 1768/95, entitled ‘Level of remuneration’, provides:

‘1. The level of the equitable remuneration to be paid to the holder pursuant to Article 14(3), fourth indent of [Regulation No 2100/94] may form the object of a contract between the holder and the farmer concerned.

2. Where such contract has not been concluded or does not apply, the level of remuneration shall be sensibly lower than the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the same area.

4. Where in the case of paragraph 2 the level of remuneration is the subject of agreements between organisations of holders and of farmers, … the agreed levels shall be used as guidelines for the determination of the remuneration to be paid in the area and for the species concerned, if these levels and the conditions thereof have been notified to the Commission in writing by authorised representatives of the relevant organisations and if on that basis the agreed levels and conditions thereof have been published …

5. Where in the case of paragraph 2 an agreement as referred to in paragraph 4 does not apply, the remuneration to be paid shall be 50% of the amounts charged for the licensed production of propagating material as specified in paragraph 2.

However, if a Member State has notified the Commission before 1 January 1999 of the imminent conclusion of an agreement as referred to in paragraph 4 between the relevant organisations established at national or regional level, the remuneration to be paid in the area and for the species concerned shall be 40% instead of 50% as specified above, but only in respect of the use of the agricultural exemption made prior to the implementation of such agreement and not later than 1 April 1999.



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