Official Journal of the European Union

C 362/7

(Case C-140/10) (<span class="super">1</span>)

(Regulation (EC) No 2100/94, as amended by Regulation (EC) No 873/2004 - Interpretation of Articles 11(1), 13(1) to (3), 16, 27, 94 and 104 - Principle of exhaustion of Community plant variety rights - Licensing contract - Action for infringement against a third party - Infringement of the licensing contract by the person enjoying the right of exploitation in his contractual relationship with the third party)

2011/C 362/10

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: Greenstar-Kanzi Europe NV

Defendants: Jean Hustin, Jo Goossens

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Articles 11(1), 13(1)(2) and (3), 16, 27, 94 and 104 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) as amended by Regulation (EC) No 873/2004 (OJ 2004 L 162, p. 38) — Civil law actions — Proceedings brought by the holder of a Community plant variety right or a licence holder against an individual who has, in relation to harvested material of the protected variety acquired from an individual holding an exploitation right, taken certain measures in contravention of the limits prescribed in the licence agreement concluded with the holder of those rights.

Operative part of the judgment

1.In circumstances such as those at issue in the main proceedings, Article 94 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, as amended by Council Regulation (EC) No 873/2004 of 29 April 2004, read in conjunction with Articles 11(1), 13(1) to (3), 16, 27 and 104 thereof, must be interpreted as meaning that the holder or the person enjoying the right of exploitation may bring an action for infringement against a third party which has obtained material through another person enjoying the right of exploitation who has contravened the conditions or limitations set out in the licensing contract that that other person concluded at an earlier stage with the holder to the extent that the conditions or limitations in question relate directly to the essential features of the Community plant variety right concerned. It is for the referring court to make that assessment.

2.It is of no significance for the assessment of the infringement that the third party which effected the acts on the material sold or disposed of was aware or was deemed to be aware of the conditions or limitations imposed in the licensing contract.

(<span class="super">1</span>) OJ C 161, 19.6.2010.