First published in BARDEHLE PAGENBERG IP Report 2008-V at

For the first time, the Court of First Instance (CFI) has ruled on the requirements for granting a Community plant variety right. The Court confirmed the rejection of the application by the Board of Appeal of the Community Plant Variety Office (CPVO) due to lack of distinctness of the candidate variety compared to a reference variety. The Court also stated that the appraisal of determining distinctness leaves a wide discretion due to the scientific and technical complexity which is subject to a limited scope of legal review.

The claimant filed a Community plant variety right application pursuant to Regulation No. 2100/94 on Community plant variety rights (Regulation No. 2100/94) with the CPVO for his candidate variety called SUMCOL 01 which belongs to the species Plectranthus ornatus. An example of this species is depicted below:

The claimant indicated in his application that the candidate variety had already been marketed within but not outside the European Union under the name "Verpiss Dich" ('Piss Off'; which refers to its effect to keep off cats and dogs). The technical examination pursuant to Article 55 (1) Regulation No 2100/94 was conducted by Germany's Federal Plant Variety Office (FPVO) ("Bundessortenamt") upon request of the CPVO.

Competitors opposed the grant of the right arguing that the candidate variety was not a new plant variety but a wild variety originating in South Africa which had been marketed for years there as well as in Germany. As marketing the reference variety in Germany was not proven and the candidate variety was not distinct from the reference variety, the FPVO concluded that the examination needs to be retaken in the following year. For this purpose, the examiner asked the curator of the Kirstenbosch Botanical Gardens in South Africa to provide cuttings or seeds for use as reference varieties against which the candidate variety could be examined and to tell whether they were available on the market in South Africa. The curator confirmed that the species to which the candidate variety belonged was commonly grown, still used a lot and sold by nurseries in South Africa, and provided the FPVO with cuttings from his private garden. The CPVO rejected the claimant's application for lack of distinctness in the light of the reference variety from South Africa following the final report of FPVO.

Against this decision the claimant appealed to CPVO's Board of Appeal. The Board came to the conclusion that the evidence at hand was sufficient and refused the appeal against the former decision rejecting his application, determining that the candidate variety could not be clearly distinguished from the reference variety of South Africa.

The claimant challenged the decision of Board of Appeal by various pleas. According to the first plea, the claimant alleged an infringement of Article 7 (1) and (2) Regulation No. 2100/94 concerning the criterion of distinctness, one of the key requirements for granting a Community plant variety right (the other requirements being uniformity, stability and novelty). Interestingly, before dealing with the aforementioned plea, the CFI started with "preliminary considerations as to the scope of the Court's powers of judicial review". This part of the present decision is most remarkable, because it defines to which extent decisions of the CPVO and its Board of Appeal will be examined by the CFI in the future.

The CFI stated that its own long-year case law established in other fields of Community law where a Community authority has to make complex assessments (e.g., in agricultural law regarding emergency measures and monetary compensation as well as officials law regarding promotion of officials), may be transposed to cases in which the administrative decision is the result of complex appraisals in other scientific domains, such as botany or genetics.

According to this case law, Community authorities enjoy a wide measure of discretion, the exercise of which is subject to limited judicial review in the course of which the Community judicature may not substitute its assessment of the facts for the assessment made by the authority concerned. The judicial review is restricted to examining the accuracy of the findings of fact and law, and to verifying, in particular, that the action taken by the authority is not vitiated by a manifest error or misuse of powers and that it did not exceed the bounds of its discretion.

Therefore, the CFI found that the appraisal of the distinctness of a plant variety as ruled by Article 7 (1) Regulation No. 2100/94 – i.e., whether it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge – is of a scientific and technical complexity such as to justify a limit to the scope of judicial review. Contrary, the appraisal of whether another variety is a matter of common knowledge pursuant to Article 7 (2) Regulation 2100/94 is not subject of a limited scope of judicial review, because it does not require expertise or special technical knowledge.

Applying these principles to the present case, the CFI rejected the plea for infringement of Article 7 (1) Regulation No. 2100/94 (after having discussed the arguments brought forward by the claimant concerning alleged mistakes in the examination proceedings as well as the plea for infringement of Article 7 [2] Regulation No. 2100/94), because the facts and evidence, in particular the statements of the curator whose genuine expertise on the reference variety was confirmed by the South African Ministry of Agriculture, was held to be sufficient to assess common knowledge of the reference variety.

Also the other pleas of the claimant that claimed infringement of procedural provisions, e.g., prohibition of decisions by surprise, summons to the hearing and exceeded time-limit, were rejected by the CFI and, therefore, the action was dismissed in its entirety.

Furthermore, it is noteworthy that the CFI did not allow any new evidence of other reference varieties presented by the CPVO that were not part of the examination proceedings.

As a result, the limited scope of judicial review established by the CFI for the granting procedure of a Community plant variety right makes it difficult for applicants to challenge a negative decision of the CPVO, respectively its Board of Appeal, by challenging the result of the technical examination. Hence, applicants are well advised to present all favourable arguments and evidence already in the examination proceedings.


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