De aanpassingen waren niet inhoudelijk

B9 11650. Gerecht EU, 18 september 2012, gevoegde zaken T-133/08, T-177/08 en T-242/09, Ralf Schräder tegen Jørn Hansson.

Kwekersrecht. Arrest van 42 pagina’s in een (gedeeltelijk procesrechtelijk) geschil over, heel kort gezegd, de stelling van Schräder dat het kwekersrecht m.b.t. het  plantenras Lemon Symphony, een margrietsoort, nietig verklaard dient te worden,” essentially on the ground that that variety had never existed in the form reproduced in the official description entered in the Register of Community Plant Variety Rights in 1997." Schräder en Hansson zijn in Duitsland betrokken in een geschil over de vraag of Schräders plantenras Sumost 01 inbreuk maakt op de Lemon Symphony.

Het onderhavige arrest ziet, eveneens kort gezegd,  o.a. op de beslissing van de kamer van beroep van het Communautair Bureau voor plantenrassen (CBP), houdende de niet-ontvankelijkverklaring van het beroep dat verzoeker Schräder had ingesteld tegen de aanpassing van de in het register opgenomen beschrijving van het plantenras  Lemon Symphony (“the CPVO took the view that such an adaptation was necessary on account, first, of the progress made in plant breeding since the examination of that variety in 1997 and, second, of the amendment of the test guidelines in 2001). 

Een  aantal procedurele grieven wordt toegewezen, maar het Gerecht  oordeelt wel dat de aanpassingen in het register niet beteken dat het plantenras is gewijzigd. “Lemon Symphony remained exactly the same between 1997 and 2005. There was no material amendment of the description affecting the identity of the variety, but merely an amendment of the terms originally chosen, which does not change the identity of the variety but merely enables it to be described more accurately, in particular by delimiting it in relation to other varieties of the species.” (…) “ The General Court takes the view that those explanations are sufficiently detailed and persuasive to resist firmly the attempted challenge to them made by the applicant in his arguments.”

In citaten:

34. By decision of 19 February 2007 (‘the refusal decision’), the CPVO upheld the objections raised by the intervener against the grant of a Community plant variety right to SUMOST 01 and refused the application for a Community plant variety right for that variety, essentially on the ground that that variety was not clearly distinguishable from LEMON SYMPHONY and that the conditions set out in Article 7 of the regulation had therefore not been met. The CPVO observed, inter alia, that it was apparent from the technical examination that SUMOST 01 differed from LEMON SYMPHONY only in one characteristic, namely the start of the flowering period, and in this by only one mark, and that that difference was too slight, in the case of the Osteospermum species varieties, to render it clearly distinct. Furthermore, the CPVO considered LEMON SYMPHONY to be stable.

35. On 11 April 2007, the applicant filed an application for annulment, pursuant to Article 20 of the regulation, of the Community plant variety right granted to LEMON SYMPHONY, essentially on the ground that that variety had never existed in the form reproduced in the official description entered in the Register of Community Plant Variety Rights in 1997.

(…) 40. By letter of 26 September 2007, the CPVO rejected the application for annulment of the Community plant variety right granted to LEMON SYMPHONY filed by the applicant under Article 20 of the regulation (‘the decision on the application for annulment’). According to the CPVO, treatment with growth regulators did not necessarily affect the results of the technical examination, given that the plant material had been grown over a period allowing the effect of the treatment to wear off. In addition, according to the CPVO, the Bundessortenamt had confirmed that the examination had progressed satisfactorily.

(…) 167. According to the Bundessortenamt, the attribution to LEMON SYMPHONY in 1997 of the level of expression ‘erect’ in respect of the description of the characteristic ‘Attitude of shoots’ follows from the comparison of that variety with the reference varieties used in the growing trials and the finding that LEMON SYMPHONY was ‘the most erect’ of the varieties on which trials were performed that year. Subsequently, the increase in the number of varieties of the Osteospermum ecklonis species and the amendment of the test guidelines led the Bundessortenamt to propose an adaptation of that description to state the level of expression as ‘semi-erect to horizontal’. However, LEMON SYMPHONY remained exactly the same between 1997 and 2005. There was no material amendment of the description affecting the identity of the variety, but merely an amendment of the terms originally chosen, which does not change the identity of the variety but merely enables it to be described more accurately, in particular by delimiting it in relation to other varieties of the species.

168. The General ourt takes the view that those explanations are sufficiently detailed and persuasive to resist firmly the attempted challenge to them made by the applicant in his arguments.

169. Moreover, the photographs used both before the German civil courts and in the proceedings before the CPVO (see paragraph 28 above) confirm, at least in the eyes of a lay observer, that the attitude of the shoots of LEMON SYMPHONY did not change appreciably between 1997 and 2005.

(…) 198. It follows from all of the foregoing that the action in Case T‑242/09 must be dismissed as unfounded.

(…) 244. The applicant thus had a legitimate and well-founded ground to object to the hearing being held on 4 December 2007. Conversely, and irrespective of the underlying reasons for her decision, the chairperson of the Board of Appeal used her powers inappropriately, if not abusively, in seeking to hold a hearing on that date notwithstanding the applicant’s reasonable and well-founded objections.

245. It follows from all of the foregoing that the plea, common to Cases T‑133/08, T‑134/08 and T‑177/08, alleging infringement of Article 59 of the implementing regulation and of the rights of the defence, is well founded.

246. The three contested decisions in Cases T‑133/08, T‑134/08 and T‑177/08 must therefore be set aside, without there being therefore any need to rule on the other pleas and arguments in the actions.

(…) 251. In the present case, as the CPVO has correctly observed, the Board of Appeal did not rule on the substantive issues concerning the legality of the decision on the adaptation of the description.

252. In those circumstances, it is not appropriate to uphold the part of the first head of claim in the action in Case T‑133/08 seeking annulment of the decision on the adaptation of the description (see, to that effect and by analogy, Edwin v OHIM, paragraph 74, confirming the judgment in Case T‑165/06 Fiorucci v OHIM – Edwin (ELIO FIORUCCI) [2009] ECR II-1375, paragraph 67].

Lees het arrest hier.