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”

Mondaq Advice Centre (MACs)
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.