On 18 January 2017 the Court of Justice of the European Union (CJEU) published an opinion of Advocate General Campos Sánchez-Bordona in Case C-625/15 P Schniga GmbH v. Community Plant Variety Office (CPVO) with regard to an apple variety which had been applied for Union protection more than 17 years ago.
This is the second “round” in a case in which, first of all, the issue had to be clarified whether the CPVO may allow the Applicant to submit new testing material of the candidate variety if it turns out that the material sent by the Applicant to the testing station appointed by the CPVO was virus infected, whereas in the submission request of the CPVO the information about the condition of the testing material as to the virus status of the candidate variety was imprecise. In its judgement (here) the CJEU confirmed that the CPVO may request submission of new plant material under certain conditions.
In this second “round”, in essence, the issue of this case relates to the scope of discretion of the CPVO’s President to include an additional characteristic in DUS examination, if it turns out in the course of the examination of a candidate variety that the same is clearly distinct from known varieties in a characteristic and that the characteristic is not mentioned in the list of characteristics in the technical protocol applicable for the technical examination of the candidate variety.
Article 23 of Regulation No. 2100/94 on Community Plant Variety Rights authorizes the President of the CPVO to insert additional characteristics and their expression in respect of the variety, even if test guidelines have been passed by the Administrative Council which do not mention this additional characteristic. The General Court confirmed the position of the Board of Appeal that any additional characteristics must be identified and inserted by the President prior to the commencement of the technical examination. The CPVO and Schniga argued that an additional characteristic with regard to which the candidate variety is clearly distinct can be identified in many cases only during the technical examination. Thus, the President must have the possibility to decide at any time that new characteristics have to be considered. In essence, the Advocate General shares the opinion of the CPVO and Schniga that the President may include an additional characteristic at any time while an application is processed until a decision to grant or not to grant protection has been rendered.
The CJEU is not bound by the opinion of the Advocate General. However, in more than 50% of the cases the Court follows the opinion of the Advocate General. In a few months’ time we will know the position of the CJEU.