5.7.2008

EN

Official Journal of the European Union

C 171/45

(Case T-177/08)

(2008/C 171/85)

Language in which the application was lodged: German

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter and W.-A. Schmidt, lawyers)

Defendant: Community Plant Variety Office

Other party to the proceedings before the Board of Appeal: Jørn Hansson (Søndersø, Denmark)

Form of order sought

—Annul the decision of the Board of Appeal of the Community Plant Variety Office of 4 December 2007 (Ref. A 005/2007);

—Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for Community plant variety rights: Ralf Schräder.

Community plant variety right at issue: ‘Sumost 01’ (Variety application No 2001/1758).

Proprietor of the opposing Community plant variety right: Jørn Hansson.

Opposing Community plant variety right: ‘Lemon Symphony’.

Decision of the Community Plant Variety Office, appealed against before the Board of Appeal: Rejection of the application for Community plant variety rights.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law:

—Infringement of Article 59(2) of Regulation (EC) No 1239/95 (1), in that the applicant was not duly summoned to the oral proceedings;

—Infringement of Article 75 of Regulation (EC) No 2100/94 (2), in that the appealed decision was based on grounds and evidence on which the applicant had no opportunity to present his comments;

—Infringement of Article 81(2) and Article 48 of Regulation No 2100/94 on account of the alleged partiality of an employee of the defendant, whose evidence was relied on in the decision;

—Infringement of Article 60 of Regulation No 1239/95, in that no formal decision was issued concerning hearing the oral evidence of an employee of the defendant;

—Infringement of Article 62 of Regulation No 2100/94 by reason of an insufficient and flawed assessment of the facts as regards distinctiveness;

—Infringement of Article 48 of Regulation No 2100/94 on account of alleged partiality on the part of one of the members of the Board of Appeal.

* * *

(1) Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 1995 L 121, p. 37).

(2) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).