Amendment of Council Regulation (EC) No. 874/2009 establishing Implementing Rules for the application of Council Regulation (EC) 2100/94 as regards proceedings before the Community Plant Variety Office
On 2 September 2016 certain amendments of the Rule for Procedure before the Community Plant Variety Office entered into force. The most significant changes are briefly summarized below.
Besides amendments which should increase efficient administration and clarity of the proceedings before the Office, one of the amendments refers to the language regime. It is now provided that the successor in title of a Community plant variety right may choose another official language of the European Union than the one that has been chosen by the applicant. Moreover, it is now provided that the Office or the Board of Appeal, with the agreement of all parties to the proceedings, should be able to use only one of the official languages of the European Union during those proceedings. So far, the Office or the Board of Appeal was obliged to translate all documents of the proceedings into the language of further parties that are involved therein besides the applicant.
Substantial amendments have been provided in relation to Articles 13 and 14 (designation of an examination office) and Article 15 (procedure for designation) for reasons of clarity and transparency.
The scope of information to be forwarded in the application form in order to establish a date of application has been extended (Art. 19).
A significant amendment refers to Article 22 which deals with decisions on Test Guidelines. For the purpose of clarity and in order to avoid any gaps or overlaps, Article 22 now provides that, as to test guidelines, the UPOV Guidelines per genera and species apply where there is no decision of the Administrative Council or no provisional decision of the President of the Office. Where the former guidelines are not available, the national guidelines which have been developed by the competent authority in charge of the technical examination of the plant variety right should apply, provided that the President of the Office agrees thereto. The deletion of Article 23 (2) of Regulation (EC) No. 874/2009 now reflects that the decision of the President of the Office, when exercising the power to insert additional characteristics in their expressions in respect of a candidate variety, is not provisional but can by exercised at any time. In a judgement of 10 September 2015 regarding the joint cases T91/14, T92/14, the General Court expressed its opinion that the authorization of the President as provided in Article 23 of Regulation (EC) No. 874/2009 empowers the President of the CPVO to include additional characteristics and their expressions only at the beginning of the technical examination. As, due to the nature of plant material, it is not possible to determine further characteristics that would allow one to establish distinctness in the sense of Article 7 of Regulation (EC) 2100/94 prior the technical trial, the provided amendment safeguards that the President can include any additional characteristics through any phase of the technical examination until the decision to grant or not to grant the applied for CPVR will be rendered.
Significant amendments also have been provided in Article 27 (examination reports issued by offices of the Member States of the European Union will have to be considered by the CPVO as sufficient bases for a decision). A new Article 51a has been included which deals with several appeals allowing the Board of Appeal to deal with the same in the same or joint proceedings.
A new Article 51a allowing the Board of Appeal to consider several appeals in the same proceeding has been included.
In light of decisions of the Court of First Instance and the Court of Justice of the European Union regarding annulment and cancellation proceedings, a new Article 53 a (proceedings for annulment and cancellation) has also been inserted (see here).
 The decision of the General Court is under appeal with the CJEU case C-625/15P.
At its fiftieth ordinary session, held in Geneva on October 28, 2016, the Council of the International Union for the Protection of New Varieties of Plants (UPOV) agreed the answer to the following “Frequently Asked Question (FAQ)”:
- Is it possible to obtain protection of a variety on the basis of its DNA-profile?
This and other FAQs are available on the UPOV website here.