Germany: European Court Of Justice (Court Of First Instance): First Decision On Application Proceedings Of A Community Plant Variety Right (Decision Of November 19, 2008 – Case T–187/06 – Schräder v Community Plant Variety Office)

Last Updated: 16 March 2009
Article by Thomas Huber

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.


Click here to read our IP Reports section from our website

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions