On 8 June 2017 the Court of Justice of the European Union (CJEU) published its decision in case C-625/15 P “Gala Schnitzer”(here) on the competence of the President of the Community Plant Variety Office (CPVO). The question was whether the President has the power, following the technical examination of a candidate variety and before the Technical Division takes a decision to grant protection for the candidate variety, to add an additional characteristic that had been observed in the course of the technical examination, although such an additional characteristic is not (yet) mentioned in the relevant technical protocol to be observed in the assessment of distinctness of the candidate variety.
Article 22 of Commission Regulation (EC) No. 874/2009 on Community Plant Variety Rights (Implementing Regulation) establishing implementing rules for the application of Council Regulation (EC) No. 2100/94 provides that the Administrative Council (AC) decides on test guidelines to be proposed by the President of the CPVO. According to Article 23 of the Implementing Regulation such a decision of the AC shall include a power whereby the President of the CPVO may insert additional characteristics and their expressions in respect of a variety.
The question to be clarified by the Court was the time when the President may decide to take into account an additional characteristic in an individual case which makes the candidate variety distinct from all other known varieties of the same species. In the case of “Gala Schnitzer” it turned out in the course of the technical examination that it showed differences from the comparison varieties in a characteristic which, at that time, was discussed on the UPOV level as a possible further characteristic to be included in the technical protocol, but was at the very end not included on the UPOV level. The reason not to include it in the technical guidelines and protocol of “Malus Borkh.” was that there were already sufficient characteristics to be tested with regard to apple varieties.
The objections filed by two interveners were based, inter alia, on the plea that the candidate variety was not distinct from a reference variety according to Article 7 of the Basic Regulation. Insofar, the Interveners relied on the relevant UPOV Protocol as at that time the CPVO Protocol for Apple Examination has not yet been passed. According to a decision of the President of the CPVO, the relevant UPOV Protocol in existence at that time was the basis for the technical examination for candidate varieties. This possibility is provided in Article 22 of the Basic Regulation in cases in which the Administrative Council has not yet made a decision regarding test guidelines.
The Interveners contested the decision of the CPVO to grant protection to the applicant variety as in their opinion the President did not have the authority to consider an additional characteristic at the end of the technical examination but only prior to the technical examination. The Board of Appeal shared the opinion of the Interveners and decided that the candidate variety could not be held to be legally distinct from the reference variety.
The Applicant appealed the decision of the Board of Appeal by an action filed with the General Court of the European Union, which confirmed the correctness of the decision of the Board of Appeal. Upon a further appeal to the CJEU, it annulled the decisions of the Board of Appeal and the CPVO and set aside the judgment of the General Court of the European Union (T-91/14 and T-92/14 – here). The Court confirms that in any event the President of the CPVO is empowered to insert a new characteristic for the examination of the candidate variety. With reference to the Advocate General’s opinion in point 97, the assessment of the characteristics of a plant variety necessarily contains a particular uncertainty due to the nature of the object itself to which the technical examination relates, namely a plant variety, as well as the length of time required to conduct such an examination. This requires a flexibility that allows the recognised power of the President of the CPVO to insert additional characteristics. An application for a Community plant variety right may not be rejected solely on the ground that the characteristic of an examined variety found during the technical examination that is decisive for assessing the distinctiveness of that variety in comparison to other varieties was not referred to, inter alia, in the relevant test guidelines and protocols.
In this context the Court again refers to the broad discretion conferred on the CPVO as outlined in the “first round” of this case in its preceding decision (Brookfield New Zealand Ltd. and Elaris SNC v. CPVO and Schniga GmbH, C-534/10 P, EU:C:2012:813, para. 50 – here).
As regards the time when the President of the CPVO may exercise his power under Article 23(1)(1) of the Implementing Regulation, the Court emphasizes that none of the provisions of the Implementing Regulation or the Basic Regulation preclude the insertion of a new characteristic after completion of the technical examination, given that such a characteristic may be found when conducting a technical examination.
This decision is of elementary importance for the functioning of the Community plant variety protection system. It allows the President of the CPVO to add at any time during the course of the application process up until a decision has been made whether to grant the applied-for right a characteristic that is not mentioned in the technical protocol, if that characteristic is, due to the genotype or a combination of genotypes, insufficiently consistent and repeatedly in a particular environment, exhibits sufficient variations between varieties to be able to establish distinctness and is capable of precise definition and recognition.