Romagnoli Fratelli SpA v Community Plant Variety Office.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2024:247
• Date: 17 April 2024
• Docket Number: T-2/23
• Celex Number: 62023TJ0002
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

17 April 2024 ( *1 )

(Plant varieties – Grant of a Community plant variety right for the potato variety Melrose – Failure to pay the annual fee on time – Cancellation of right – Application for restitutio in integrum – Conditions for notification of decisions and communications of the CPVO)

In Case T‑2/23,

Romagnoli Fratelli SpA, established in Bologna (Italy), represented by E. Truffo and A. Iurato, lawyers,

applicant,

v

Community Plant Variety Office (CPVO), represented by M. García-Moncó Fuente and Á. Martínez López, acting as Agents,

defendant,

THE GENERAL COURT (Third Chamber),

composed of F. Schalin, President, I. Nõmm (Rapporteur) and G. Steinfatt, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Romagnoli Fratelli SpA, seeks annulment of the decision of the Community Plant Variety Office (CPVO) of 7 November 2022 (‘the contested decision’).

Background to the dispute

2 On 10 December 2009, the applicant applied to the 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 2009/2240.

3 The plant variety in respect of which the Community plant variety right was sought is the potato variety Melrose, belonging to the species Solanum tuberosum L.

4 By decision of the CPVO of 20 February 2012, the Community plant variety right was granted for the plant variety at issue.

5 On 27 October 2021, a debit note relating to payment of the annual fee for the Community plant variety right at issue was issued and sent to the applicant by the CPVO in its user area, known as ‘MyPVR’.

6 As the debit note had not been paid within the time limit set, a formal reminder was sent to the applicant on 10 January 2022, in accordance with Article 83(2) of Regulation No 2100/94, via the MyPVR user area. In the context of that reminder, the CPVO invited the applicant to pay the amount due in respect of the annual fee within one month in order to avoid the cancellation of the Community plant variety right in question pursuant to Article 21(2)(c) of that regulation.

7 On 16 February 2022, as the documents relating to the annual fee had not been downloaded by the applicant from the MyPVR user area, the CPVO sent the applicant another reminder by email, without however extending the time limit for payment.

8 On 21 March 2022, as the annual fee had not been paid within the period prescribed, the CPVO cancelled the Community plant variety right at issue. The decision on that cancellation was served on the applicant on 22 March 2022.

9 On 6 May 2022, the applicant filed an application for restitutio in integrum, pursuant to Article 80 of Regulation No 2100/94, in relation to the time limit for payment of the annual fee referred to above.

10 That same day, the applicant paid the annual fee that had not yet been paid.

11 By the contested decision, the CPVO did not grant the applicant’s application for restitutio in integrum. That application was dismissed on the ground that, first, it did not satisfy the conditions laid down in Article 80(2) of Regulation No 2100/94 and, second, the applicant had not shown that it had faced unforeseeable circumstances and had taken all due care required for the conditions laid down in Article 80(1) of that regulation to be satisfied.

Forms of order sought

12 The applicant claims, in essence, that the Court should: – annul the contested decision; – order the CPVO to pay the costs.

13 The CPVO contends, in essence, that the Court should: – dismiss the action; – order the applicant to pay the costs.

Admissibility

14 The CPVO contends that the action should be dismissed in its entirety as inadmissible, since no legal basis exists for the present action either in Regulation No 2100/94 or in Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the CPVO (OJ 2009 L 251, p. 3). In addition, in view of the absence of legal basis in those regulations, it also challenges the applicability of the fourth paragraph of Article 263 TFEU.

15 The applicant disputes the CPVO’s arguments.

16 According to the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures.

17 The fifth paragraph of Article 263 TFEU provides that acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of those bodies, offices or agencies intended to produce legal effects in relation to them.

18 According to settled case-law, any provision or measure adopted by EU institutions, bodies, offices and agencies, whatever form they might take, the legal effects of which are binding on, and capable of affecting the interests of, a natural or legal person by bringing about a distinct change in their legal position may be the subject of an action for annulment (see judgment of 31 January 2019, International Management Group v Commission, C‑183/17 P and C‑184/17 P, EU:C:2019:78, paragraph 51 and the case-law cited).

19 In that regard, suffice it to note that, in the first place, the applicant is the addressee of the contested decision and, in the second place, by that decision, the CPVO unequivocally stated its final position on the application for restitutio in integrum at issue, thereby producing binding legal effects capable of affecting the applicant’s interests.

20 However, the CPVO contends that the fifth paragraph of Article 263 TFEU legitimises its ability to rule on applications for restitutio in integrum without the possibility of an appeal before the Board of Appeal of the CPVO or before the Court, since such an action is not provided for either by Regulation No 2100/94 or by Regulation No 874/2009, which constitute the ‘specific conditions and arrangements’ within the meaning of the fifth paragraph of that article. Therefore, it submits that the contested decision cannot be the subject of an action before the Court under the fourth paragraph of Article 263 TFEU.

21 In that regard, it must be recalled that it follows from Article 2 TEU that the European Union is founded, inter alia, on the values of equality and the rule of law. The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (see judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 58 and the case-law cited).

22 Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and effective judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court of Justice of the European Union, while the Court of Justice has exclusive jurisdiction to give the definitive interpretation of that law (see judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 59 and the case-law cited).

23 Moreover, as provided in the first sentence of Article 256(1) TFEU, the General Court is to have jurisdiction to hear and determine at first instance actions or proceedings referred to in Articles 263, 265, 268, 270 and 272 TFEU, with the exception of those assigned to a specialised court set up under Article 257 TFEU and those reserved in the Statute of the Court of Justice of the European Union for the Court of Justice.

24 Thus, the judicial system of the European Union is a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions, bodies, offices and agencies of the European Union (see judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 60 and the case-law cited).

25 Therefore, although the ‘specific conditions and arrangements’ mentioned in the fifth paragraph of Article 263 TFEU do indeed allow a body, office or agency of the European Union to draw up internal terms and conditions which are prerequisites to legal proceedings and govern, inter alia, the operation of a self-monitoring mechanism or the course of an out-of-court settlement, those conditions and arrangements cannot be interpreted as allowing an institution of the European Union to shield disputes involving the interpretation or application of EU law from the jurisdiction of the EU Courts (see judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 62 and the...