14 July 2021 (<a href="#Footnote*" name="Footref*">*</a>)

(Plant varieties – Application for a Community plant variety right for the Stark Gugger apple variety – Technical examination – Testing location – Equal treatment – Rights of the defence – Obligation to state reasons)

In Case T‑181/20,

Griba Baumschulgenossenschaft landwirtschaftliche Gesellschaft,

established in Terlano (Italy), represented by G. Würtenberger, lawyer,

applicant,

Community Plant Variety Office (CPVO),

represented by M. Ekvad, O. Lamberti and F. Mattina, acting as Agents, and by A. von Mühlendahl and H. Hartwig, lawyers,

defendant,

ACTION brought against the decision of the Board of Appeal of the CPVO of 24 January 2020 (Case A 008/2018) concerning an application for a Community plant variety right for the Stark Gugger apple variety,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, U. Öberg (Rapporteur) and R. Mastroianni, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 31 March 2020,

having regard to the response lodged at the Court Registry on 30 September 2020,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Legal context

1Under Article 6 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (‘the basic regulation’), Community plant variety rights are to be granted by the Community Plant Variety Office (CPVO) for varieties that are distinct, uniform, stable and new.

2Pursuant to Article 7(1) of the basic regulation, a variety is deemed to be distinct if it is clearly distinguishable, by reference to the expression of the characteristics that result from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application for the granting of a Community plant variety right.

3The question whether the criteria of distinctness, uniformity and stability are fulfilled in a particular case is to be examined in a technical examination conducted in accordance with Articles 55 and 56 of the basic regulation (‘the technical examination’).

4Article 55(1) of the basic regulation provides as follows:

‘1. Where the [CPVO] has not discovered any impediment to the grant of a Community plant variety right on the basis of the examination [of the procedural and substantive conditions laid down by] Articles 53 and 54, it shall arrange for the technical examination relating to [fulfilment of the criteria of distinctness, uniformity and stability] to be carried out by the competent office or offices in at least one of the Member States entrusted with responsibility for the technical examination of varieties of the species concerned by the Administrative Council [of the CPVO], hereafter referred to as the “Examination Office or Offices”.’

5Under Article 56 of the basic regulation, technical examinations are to be conducted in accordance with test guidelines issued by the Administrative Council and any instructions given by the CPVO. Those test guidelines describe, inter alia, the plant material required for the technical examination, how the tests are to be performed, the methods to be applied, the observations to be made, the grouping of the varieties included in the test and the table of characteristics to be examined. In the technical examination, plants of the variety concerned are to be cultivated alongside those of the varieties which the CPVO and the designated Examination Office deem to be those which the candidate variety most closely resembles, according to the description of the candidate variety in the technical description forming part of the application for the granting of a Community plant variety right.

6Article 57(1) to (3) of the basic regulation provides as follows:

‘1. The Examination Office shall, at the request of the [CPVO] or if it deems the results of the technical examination to be adequate to evaluate the variety, send the [CPVO] an examination report, and, where it considers that the conditions laid down in Articles 7 to 9 are complied with, a description of the variety.

3. Where the [CPVO] does not consider the examination report to constitute a sufficient basis for decision, it may provide of its own motion, after consultation of the applicant, or on request of the applicant for complementary examination. For the purposes of assessment of the results, any complementary examination carried out until a decision taken pursuant to Articles 61 and 62 becomes final shall be considered to be part of the examination referred to in Article 56(1).’

7Point I of Protocol TP/14/2 final of the CPVO of 14 March 2006 for distinctness, uniformity and stability tests (Apple) provides as follows:

‘The protocol describes the technical procedures to be followed in order to meet [the basic regulation]. The technical procedures have been agreed by the Administrative Council and are based on general [International Union for the Protection of New Varieties of Plants] Document TG/1/3 and [International Union for the Protection of New Varieties of Plants] Guideline TG/14/9 dated 6 April 2005 for the conduct of tests for Distinctness, Uniformity and Stability. This protocol applies to fruit varieties of Malus domestica Borkh.’

Background to the dispute

8On 4 August 2011, the applicant, Griba Baumschulgenossenschaft landwirtschaftliche Gesellschaft, filed an application for a Community plant variety right with the CPVO, pursuant to the basic regulation. The plant variety for which the right was sought is the Stark Gugger variety belonging to the fruit of the Malus domestica Borkh species (‘the candidate variety’).

9The Administrative Council of the CPVO entrusted the French Variety and Seed Study and Control Group (GEVES), an examination site of the French National Institute for Agricultural Research (INRA) in Angers-Beaucouzé (France), with responsibility for carrying out the technical examination of the candidate variety, in accordance with Article 55(1) of the basic regulation.

10In January 2012, following a request from the CPVO, the applicant submitted trees of the candidate variety and the comparison variety Stark Delicious to GEVES.

11At the beginning of 2013, due to a mislabelling of the Stark Delicious variety, the CPVO requested, in an interim report, that additional trees of the candidate variety and Stark Delicious variety be submitted, as well as trees of the Jeromine apple variety.

12During an on-site visit in August 2014, a representative of the applicant informed the GEVES technical examiner that the pruning method applied to the candidate variety was not appropriate and notified him of the resulting consequences, in particular as regards the ripening and colour of the varieties.

13According to the 2015, 2016 and 2017 interim reports relating to the 2014, 2015 and 2016 observation years, no significant differences were observed between the candidate variety and the Jeromine reference variety.

14According to the examination report prepared by GEVES on 4 April 2017, the candidate variety was not clearly distinct from the Jeromine reference variety, which was used to assess the distinctness of the candidate variety for the purposes of Article 6 and Article 7(1) of the basic regulation.

15That report was sent to the applicant. After receiving the applicant’s comments, the CPVO rejected the application for the granting of a Community plant variety right by decision of 2 July 2018 (‘the decision of 2 July 2018’).

16The applicant filed a notice of appeal against the decision of 2 July 2018. It claimed that, as the Examination Office had used a different pruning method from that applied in the creation process of the candidate variety, the candidate variety was not able to develop its fruit characteristics, which are different from those of the Jeromine variety. Moreover, according to the applicant, the fact that the trees of the candidate variety and those of the comparison variety were different in age led to inaccurate test results. Lastly, testing the candidate variety in a maritime climate whereas it had been developed in a continental climate meant that the technical examination led to the development of relevant characteristics that did not reflect those encoded in its genetic structure.

17That appeal against the decision of 2 July 2018 was dismissed by the Board of Appeal of the CPVO as unfounded by decision of 24 January 2020 (‘the contested decision’).

18In the contested decision, the Board of Appeal found, in essence, that neither the location of the site chosen nor the pruning method applied prevented the candidate variety from being distinguishable from the commonly known Jeromine variety. It added that the genetic difference between the two varieties is very small and generally not measurable by DNA fingerprinting. The Board of Appeal also found that differences in fruit colour in mutants from the same initial parent variety are difficult to distinguish and that sometimes those mutants are even identical in terms of their phenotypes. Furthermore, it noted that the testing location contested by the applicant, namely Angers-Beaucouzé, is the site where the technical examination has to be carried out. Lastly, the Board of Appeal found that the pruning method applied by GEVES enables a good expression of the genotype and is in accordance with the applicable protocol.

Forms of order sought

19The applicant claims that the Court should:

–annul the contested decision;

–order the CPVO to pay the costs.

20The CPVO contends that the Court should:

–dismiss the action;

–order the applicant to pay the costs.

Law

21The applicant raises, in essence, four pleas in support of its action, relating to (i) the allegation that the technical examination is vitiated by errors; (ii) the determination of the testing location and the resulting infringement of the principle of equal treatment; (iii) infringement of the right to be heard; and (iv) an alleged failure to state reasons. Furthermore, in so far as the applicant’s complaints raised in the fourth plea, alleging that the statement of reasons for the contested decision was inadequate, relate to considerations that are relevant to some of the other pleas, it is appropriate to examine them in the context of each of the pleas concerned.

The first plea, alleging errors in the technical examination

22The first plea is divided into two parts. According to the first part, the Board of Appeal erred in concluding that the genetic differences between the candidate variety and the Jeromine variety, as varieties derived from the Red Delicious initial variety, are very small and generally not even measurable by DNA fingerprinting, since that assessment is not supported by scientific evidence; nor is any explanation given as to the conclusions to be drawn from it in respect of the varieties in question. The second part concerns the pruning method applied.

23As a preliminary point, it should be borne in mind that the General Court, which has jurisdiction only within the limits set by Article 73(2) of the basic regulation, is not required to carry out a complete review in order to determine whether or not the candidate variety lacked distinctness, as compared with the Jeromine reference variety, for the purposes of Article 7(1) of the basic regulation. In the light of the scientific and technical complexity of that condition, compliance with which must be verified by means of a technical examination which, as is clear from Article 55 of the basic regulation, is to be entrusted by the CPVO to one of the competent national offices, the General Court is entitled to limit itself to a review of manifest errors of assessment (see, to that effect, judgment of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 77).

Genetic proximity between the varieties in question and the alleged failure to state reasons in that regard

24The applicant argues that the Board of Appeal’s assertion that the genetic proximity between the varieties in question is very strong is not supported by any corresponding examinations carried out by the CPVO or any other scientific source. There is no proof that that genetic proximity results in a lack of distinctness in all cases. According to the applicant, this constitutes a failure by the CPVO to fulfil its obligation under Article 75 of the basic regulation to substantiate its findings and observations. In addition, the Board of Appeal provided no explanation of the conclusions to be drawn as regards the varieties in question.

25The CPVO disputes the applicant’s arguments.

26The Court considers, as the CPVO has rightly argued, that this part of the first plea could be understood as a challenge to the use of the Jeromine variety as reference variety or as a substantive challenge as regards the relevance of the references made to genetic proximity in the contested decision. In addition, it could be understood as relating to a failure to state reasons in the contested decision in that regard.

27Concerning the hypothesis that this part of the first plea could be understood as a challenge to the use of the Jeromine variety as reference variety, it should be pointed out that the applicant did not challenge such use of the Jeromine variety either during the technical examination procedure or during the proceedings before the Board of Appeal.

28It should be borne in mind that the purpose of actions brought before the General Court is to secure review of the legality of decisions of the Boards of Appeal of the CPVO for the purposes of Article 73 of Regulation No 2100/94 and that Article 188 of the Rules of Procedure of the General Court provides that the parties’ pleadings may not change the subject matter of the proceedings before the Board of Appeal. Accordingly, claims made by the parties which change the subject matter of the dispute must be rejected as inadmissible by virtue of Article 73(2) of the basic regulation, in conjunction with Article 188 of the Rules of Procedure (see judgment of 23 February 2018, Schniga v CPVO (Gala Schnico), T‑445/16, EU:T:2018:95, paragraph 46 (not published and the case-law cited)).

29Accordingly, it must be concluded that, in so far as this part of the first plea concerns the use of the Jeromine variety as reference variety, it is inadmissible.

30As to the other two hypotheses referred to in paragraph 26 above, which will be considered together, it should be borne in mind, first of all, that the obligation to state reasons laid down in the first sentence of Article 75 of the basic regulation has the same scope as that laid down in Article 296 TFEU and has the dual purpose of enabling interested parties to know the reasons for the measure taken so as to be able to defend their rights and of enabling the Courts of the European Union to exercise their jurisdiction to review the legality of the decision (see, to that effect and by analogy, judgments of 10 May 2012, Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 111, and of 27 March 2014, Intesa Sanpaolo v OHIM – equinet Bank (EQUITER), T‑47/12, EU:T:2014:159, paragraph 24).