OPINION OF ADVOCATE GENERAL

delivered on 17 February 2004(1)

Saatgut-Treuhandverwaltungs GmbH

(Reference for a preliminary ruling from the Landgericht Düsseldorf)

(Plant variety rights – System of protection – Article 14(3) of Regulation (EC) No 2100/94 and Article 9 of Regulation (EC) No 1768/95 – Use by a farmer for propagating purposes, on his own holding, of the product of the harvest of a protected variety – Seed-processing undertakings – Obligation to provide information to the holder of the right)

The Landgericht seeks to ascertain whether the holder of a plant variety right is entitled to request information from a seed-processing undertaking for the purpose of monitoring the identities of farmers who rely on the derogation laid down in Article 14(1) of Regulation No 2100/94, 4 –Under which farmers are entitled to plant on their own holdings, without the need for authorisation, the product of the harvest obtained by planting propagating material of a protected variety, on condition that they pay equitable compensation. regardless of whether there is any evidence that material from a protected variety of the holder has been processed. In the event that evidence is required, the Landgericht also asks whether the request for information from the processor concerned extends to all the farmers who have used seed of a particular variety or whether it is limited to those for whom there is some evidence that they have carried out processing.

I – The facts of the main proceedings

The information requested is for the 1997/98 marketing year in respect of 492 plant variety rights; the 1998/99 marketing year in respect of 517 plant variety rights; and the 1999/2000 marketing year in respect of a further 574 plant variety rights. In each case, the varieties concerned are protected under national or Community law.

II – The questions referred for a preliminary ruling

1) Are [the sixth indent of Article 14(3) of Council Regulation No 2100/94 and Article 9 of Commission Regulation No 1768/95] to be interpreted as meaning that the holder of a variety protected under Regulation No 2100/94 can request the supplier of processing services to provide the information specified in those provisions, regardless of whether there is any indication that the supplier has processed the protected variety concerned?

2) If there have to be indications …:

Must the supplier of processing services … provide information pursuant to the sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 with regard to all the farmers for whom he has processed the protection variety concerned, or only with regard to those farmers in respect of whom the holder of the plant variety right has some indication that the supplier of processing services … has processed the protected variety concerned?

III – Community legislation

‘Derogation from Community plant variety right

(a) Fodder plants: …

(b) Cereals: …

(c) Potatoes: …

(d) Oil and fibre plants: …

– relevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services; …’

‘Information by the processor

(a) the name of the processor, the place of his domicile and the name and address registered for his business;

(b) the fact whether the processor has supplied a service of processing the product of the harvest belonging to one or more varieties of the holder for planting, where the variety or varieties were declared or otherwise known to the processor;

(c) if the processor has supplied such service, the amount of the product of the harvest belonging to the variety or varieties concerned, which has been processed for planting, by the processor, and the total amount resulting from that processing;

(d) the dates and places of the processing referred to in (c); and

(e) the name and address of the person or persons to whom he has supplied the service of processing referred to in (c), and the respective amounts.

…’

IV – The proceedings before the Court of Justice

At the hearing, which was held on 8 January 2004, oral argument was presented by the representatives of the plaintiff and the defendant and by the agent of the Commission.

V – The first question

A – The observations submitted

STV takes the view that the duty to provide information is in keeping with the principle of proportionality, since it relates only to the quantity processed and to the individuals and undertakings on whose behalf the work has been carried out, details which are known to and used by the undertakings when they invoice for their services.

11. Brangewitz is of the opinion that a request for information must be addressed to the person who actually processes the seeds, in his capacity as a supplier of services, where there is evidence that he has processed propagating material of a protected plant variety. Breeders may only contact such processors in order to obtain specific information when they intend to carry out a probability check and have established that the processor concerned has a legal relationship with a particular farmer. Brangewitz asserts that its establishment should not be classified as a supplier of processing services in respect of propagating material because it does not carry out the work directly. Rather, it owns two special agricultural machines for cleaning and sorting seeds, which it hires out to farmers who carry out those operations on their own behalf and at their own risk. Invoicing is done on the basis of the quantity of cereals processed.

12.The German Government contends that the only formal condition laid down by the Community legislation for an undertaking to be required to provide information is that the breeder must request that information. The rules whose interpretation is requested in these proceedings do not provide for the submission of proof or evidence. The farmer is linked to the breeder by a legal relationship which comes into being when the seeds are purchased, but the person who processes the product of the harvest does not have such a connection; his duty to provide information is independent of that of the farmer. If the duty to provide information were conditional on the existence of evidence, it would mean that, in the first instance, the breeder would have to contact the farmers concerned, on whose good will the obtaining of proof would be dependent. In the opinion of the German Government, it is not disproportionate for the holder of the right to request the relevant information from all seed-processing undertakings, regardless of whether there are indications that they have processed the product of the harvest of any of his protected varieties, because it is to be assumed that, in the exercise of their professional activity, they regularly process material from protected varieties.

13.The Netherlands Government and the Commission claim that the holder of the right must cite the evidence concerned.

B – The reply to the first question

14.With a view to promoting the development of new plant varieties, in 1994 the Community legislature decided to improve protection for breeders by introducing, as a matter of priority, a system of industrial property protection for the whole territory of the Union.

15.Article 1 of Regulation No 2100/94 provides: ‘A system of Community plant variety rights is hereby established as the sole and exclusive form of Community industrial property rights for plant varieties.’ Since the entry into force of the regulation, Member States have been authorised to confer national property rights, although Article 92 prohibits cumulative protection meaning that any variety which benefits from Community protection cannot be the subject of a national plant variety right or of any patent. Varieties of all botanic genera and species, including, inter alia, hybrids, are covered by the Community protection.

16.In order to be protectable, varieties must be distinct, uniform, stable and new, and they must have their own denomination. Entitlement to Community plant variety rights is vested in the breeder, who is the person who bred, or discovered and developed, the variety, or his successors in title.

17.Under Article 13 of Regulation No 2100/94, the holder of a Community plant variety right is entitled to effect certain acts in respect of the variety concerned, which are listed in paragraph 2: (a) production or reproduction (multiplication); (b) conditioning for the purpose of propagation; (c) offering for sale; (d) selling or other marketing; (e) exporting from the Community; (f) importing to the Community; and (g) stocking for any of the aforementioned purposes. The holder may grant authorisation to carry out those acts. In addition, the holder may make his authorisation subject to conditions and limitations.

18.For the purposes of safeguarding agricultural production, Article 14(1) contains a derogation from the rights of the holder, under which farmers are permitted to use for propagating purposes in the field, on their own holding, the product of the harvest obtained by planting propagating material of a variety, other than a hybrid or synthetic variety, which is covered by a Community plant variety right. The farmers’ privilege applies only to certain agricultural plant species which are listed in paragraph 2 and classified under four groups: fodder plants, oil and fibre plants, cereals, and potatoes.

19.As the majority of those who submitted observations in these proceedings have pointed out, this is the third time that a German court has sought guidance from the Court on the scope of the right of a breeder to receive information about use by farmers, for propagating purposes, of the product of a harvest obtained by planting a protected variety of the breeder. The desire of the breeder to receive the information concerned stems from the fact that, where a farmer relies on the derogation, he must pay equitable remuneration to the breeder as consideration for the fact that he will not require seeds for the new growing season.

20.That remuneration is appreciably lower than the price of propagating material of the same variety. That is why the regulations at issue in these proceedings place on the direct recipient of the service, and on the person who is professionally engaged in processing the product of a harvest for subsequent planting, the duty to provide information to the holder about the quantities used and processed, details which will enable the holder to calculate the amount which it is appropriate for him to charge. As the Court observed in paragraph 71 of its judgment in Schulin, a farmer who relies on the derogation but does not pay equitable remuneration to the holder has undertaken, without authorisation, one of the acts referred to in Article 13(2) of Regulation No 2100/94, from which it follows that he can have an action brought against him for an injunction in respect of the infringement or for payment of remuneration. Furthermore, if the infringement is intentional or negligent, the farmer is also obliged to pay damages to make good the loss suffered by the holder.

21.In Schulin, which was the first case in the series, STV brought an action against a farmer for refusing to fill in a form it had sent to him in order to ascertain whether, in the 1997/98 growing season, the farmer had planted 525 plant varieties, 180 of which were protected under Community legislation. STV contended that, under Article 14(3), sixth indent, of Regulation No 2100/94 in conjunction with Article 8 of Regulation No 1768/95, it was entitled to request such information from all farmers, simply because they were farmers, without needing to provide evidence that a protected variety had been planted. In the Opinion I delivered in Schulin, I stated that the obligation to supply the relevant information to the holder in respect of the use of the privilege, affects all farmers who have acquired licensed propagating material of a protected variety, but that that burden could not be extended to farmers who have never purchased such material because it is technically impossible for them to have used the product of the harvest.

22.The Court agreed with that proposition in its judgment, holding that the provisions concerned do not authorise holders to seek relevant information from all farmers. The Court went on to state that there must be some indication that the individual from whom the information is requested has relied on, or is liable to rely on, the derogation, in which regard it will be sufficient if that individual has purchased propagating material. The Court also accepted that it should be possible for holders to make arrangements to obtain, from their distributors, the names and addresses of purchasers of their protected varieties.

23.In Jäger, the second case on this matter to come before the Court, STV brought an action against another farmer for refusing to complete the form it sent him in order to ascertain whether, during the 1997/98 growing season, he had used for propagating purposes, on his own holding, the product of the harvest obtained by planting more than 500 plant varieties. The case turns solely on the definition of the concept of an ‘organisation of holders’ authorised to invoke the latter’s rights, which is contained in Article 3(2) of Regulation No 1768/95, because the other question is identical to the one referred in Schulin. In fact, that was an ingenious ruse designed to sidestep the barrier to responding to the Opinion of the Advocate General, who, according to the Emesa Sugar case-law, takes part publicly and individually in the process by which the Court of Justice reaches its judgment and brings to an end the procedure between the parties, so that, in view of the judicial nature of his contribution, his acts are not subject to an adversarial procedure. Since the hearing in Jäger was held (on 3 October 2002) after the Opinion in Schulin was delivered (on 22 March 2002), but before the judgment in that case was handed down (on 10 April 2003), Saatgut-Treuhandverwaltungs succeeded in criticising in open court the content of an Opinion which did not agree with its claims.

24.It is still necessary, therefore, to define the right of breeders to obtain from seed-processing undertakings information for the purpose of identifying farmers who, in return for having relied on the derogation in a particular growing season, are obliged to pay them remuneration.

25.In order to specify the conditions to give effect to the farmers’ exemption, safeguarding the legitimate interests concerned, Article 14(3) of Regulation No 2100/94 established the criteria to be applied by the Commission when adopting implementing rules, in particular Regulation No 1768/95. In accordance with the sixth indent of Article 14(3), both farmers and suppliers of processing services have a duty to provide the holder with the relevant information. That requirement is set out in more detail in Article 8 of Regulation No 1768/95, with regard to farmers, and in Article 9 of the same regulation, which refers to processing establishments. The two articles have a similar wording, adapted as appropriate, and that similarity has led some of the participants in these proceedings to advocate an interpretation of Article 9 which is the same as the one given in Schulin for Article 8, an approach with which I wholeheartedly disagree.

26.The second indent of Article 14(3) of Regulation No 2100/94 authorises the farmer, either himself or through services supplied to him, to submit the product of the harvest for processing, without prejudice to certain restrictions imposed in order to ensure identity of the material entered for processing with that resulting from processing.

27.That provision was supplemented by Article 13 of Regulation No 1768/95, pursuant to which the product of the harvest of a variety which is covered by a Community plant variety right cannot, without the prior consent of the holder, be moved from the holding on which it was harvested in order to be processed with a view to planting. However, such action is permitted where a farmer takes the measures necessary to ensure that the product entered for processing and the product resulting from processing are identical, and that the service is carried out by a registered processor or by one who has notified his activity to the official competent body for inclusion in the lists of processors, a person who in turn undertakes to the farmer to guarantee the return of the same material. The lists referred to, which must have been established by 1 July 1997, together with the registers, are published or made available to organisations of holders, farmers and processors. Member States can exercise the right conferred on them by the provision to stipulate the requirements of qualification which undertakings must meet in order to be included in the lists.

28.That is the scope of the duty to provide information to a breeder, which is incumbent on seed-processing undertakings to the extent that Article 13 of Regulation No 1768/95 requires that processing be carried out by a specialised establishment which ensures the identity between the product received for processing and the product delivered. Those conditions may be satisfied by undertakings which carry out processing at their own facilities and by those which transport the necessary machinery, equipment and staff and carry out the activity on a farmer’s holding. However, an undertaking which merely hires out machines to farmers so that they can carry out processing on their own holdings is not in a position to guarantee the product processed, notwithstanding that it invoices per tonne of cereal. The relationship which links such an undertaking to a farmer is one not for the leasing of services but for the leasing of goods, which is why they do not have at their disposal the information which, under Article 9 of Regulation No 1768/95, processors are required to supply to holders. It would, therefore, be pointless for holders to contact such undertakings for the purposes of verifying the information, pursuant to Article 15 of Regulation No 1768/95.

29.Furthermore, only processors who process seeds of one of the species listed in Article 14(2) of Regulation No 2100/94 are required to provide information to the breeder, because the derogation applies to those seeds alone, all other material being excluded from the concept of processing for propagating purposes.

30.Aside from situations where a farmer processes seeds directly on his holding using hired machinery, which are doubtless few in number owing to the need for specific technical knowledge, undertakings established in the Community, which process, for planting, the product of the harvest of the species referred to in the previous point of this Opinion, are required to respond to requests for information from breeders.

31.It is, in any event, for the national court to determine, on the basis of the guidance provided by the Court of Justice and in the light of the evidence adduced, whether the defendant is a supplier of seed-processing services subject to the provisions of Regulation No 2100/94 and Regulation No 1768/95.

32.I am aware that this interpretation of Article 14(3), sixth indent, of Regulation No 2100/94, in conjunction with Article 9 of Regulation No 1768/95, differs from the one which I proposed in my Opinion in Schulin, and which was adopted by the Court, notwithstanding that the wording of Articles 8 and 9 of Regulation No 1768/95 is very similar. There are various reasons for the different interpretation, which, moreover, differs from the surprising approach advocated by the Commission, at least in the light of the wording and objective of the provision.

33.Article 8 of Regulation No 1768/95 sets out the details of the information to be provided by farmers. As was highlighted in <i>Schulin</i>, breeders are the principal, direct beneficiaries of the Community legislation on the protection of plant rights, while farmers also benefit through advances made, because they have access to better-quality propagating material. When farmers acquire seeds of a protected variety, they enter into a legal relationship, however minor, with the holder, and that relationship intensifies where the material is from one of the four groups of species referred to in Article 14(2) of Regulation No 2100/94 and they use the product of the harvest for planting in a subsequent growing season, because, in such cases, farmers must pay remuneration to the breeder.

34.On that basis, the Court held in <i>Schulin</i> that an interpretation of the Community legislation to the effect that all farmers, merely by belonging to that profession, even those who have never acquired or planted propagating material from a protected variety belonging to one of the species listed in Article 14(2) of Regulation No 2100/94, must provide the holder with all relevant information, would go beyond what is necessary in order to safeguard the legitimate interests of both the breeder and the farmer. For that purpose, the holder must have some indication that the farmer has relied on the derogation or that he is liable to do so, and the acquisition of seeds can be taken to be such an indication. In any event, it is for the breeder to make arrangements to know the personal details of those who purchase his registered varieties. (14)

35.This case, however, turns on Article 9 of Regulation No 1768/95, which sets out the information to be notified by undertakings which process propagating material, whose position, vis-à-vis the holder, is very different from that of farmers.

36.First of all, when use is made of the farmers’ exemption laid down in the Community legislation, the breeder, in the exercise of his profession, does not enter into a relationship with the processor. Although, under Article 13(2)(b) of Regulation No 2100/94, the authorisation of the holder is required, conditioning of protected seeds for the purpose of propagation is undertaken by the processor on the farmer’s holding or at the processor’s own facility. Those two cases are governed by Article 13(1) of Regulation No 1768/95, pursuant to which both operators must take all precautions possible to ensure identity of the product entered for processing with that resulting from the operation.

37.Second, while many farmers in the Community do not grow any of the species referred to in Article 14(2) of Regulation No 2100/94, from which it follows that it would be disproportionate to require them all to fill in questionnaires sent by breeders, there is a strong likelihood that seed-processing undertakings will, in the exercise of their profession, process propagating material from a protected variety. In light of the fact that, if they have not signed a contract, the seed-processing undertaking is not connected to the breeder by any legal relationship at all, and of the fact that farmers use such undertakings when they rely on the derogation, it appears logical that holders should be entitled to seek information from both in order to assert their right to receive equitable remuneration.

38.Third, there is an important difference between the wording of Article 8 and that of Article 9 of Regulation No 1768/95, which, to my mind, would entitle the Court to refrain from applying, in the case of seed-processing undertakings, the interpretation it adopted in <i>Schulin</i> with respect to farmers and the duty to provide information. The regulation does not provide for the holder to ask farmers whether they have acquired protected material of his because, under the rule, it is assumed that the holder already knows that information, which is why the holder may ask farmers directly whether they have used the product of the harvest as propagating material.

39.By contrast, where a holder requests information from a processor with whom he has not previously entered into a legal relationship, the holder must ascertain, first of all, whether the processor has processed seeds belonging to any of his varieties, and, if that is the case, the holder may then go on to enquire about quantities, dates, places and recipients of the service. If, for the purpose of contacting a supplier of processing services, the legislature had intended that a holder must have an indication that the supplier concerned had processed protected material at his facility (for example, using the information which farmers are required to provide under Article 8(2)(d) of Regulation No 1768/95), Article 9 would have been worded to the effect that the processor was merely required to confirm information of which the holder was already aware. However, as is clear from Article 9(2)(b) and (e), that is not the case.

40.Fourth, even if the processor generally carries out work for farmers under a contract for the supply of services, Article 9(2)(b) of Regulation No 1768/95 provides for the possibility that he does not know to which variety the propagating material processed belongs and wishes to find out so that he can discharge the relevant obligations. Accordingly, once it is admitted that he is unaware whether the material in question belongs to a protected species, it becomes unreasonable to require from the holder some indication that protected material of his has been processed in the operation concerned in order for him to seek confirmation of his suspicions.

41.Finally, Article 8(5) of Regulation No 1768/95 provides that, where it has been so agreed, a request for information may, instead of being sent directly to the farmer, be sent to a cooperative of which he is a member, to a processor who has provided a processing service to him in recent marketing years, or to a seed supplier. In accordance with Article 8(6), the said persons must supply the information, provided that they have been authorised to do so by the farmer. I do not agree with the approach of Brangewitz, which relies on the aforementioned provision in support of its contention that the holder must have the agreement of the farmer in order to contact the processor. The rule fulfils only a residual purpose in the scheme of the directive, which is to enable other establishments with which a farmer communicates in the course of his professional activity to provide the information on his behalf.

42.Accordingly, Article 14(3), sixth indent, of Regulation No 2100/94, in conjunction with Article 9 of Regulation No 1768/95, must be interpreted as meaning that the holder of a protected variety can request the relevant information from an undertaking which supplies processing services in respect of seeds belonging to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94, regardless of whether there is any indication that it has processed propagating material resulting from planting a protected variety of the holder.

43.In view of the reply I have proposed for the first question, there is no need to analyse the second question because it was referred in the alternative, and was to be answered only in the event that evidence of the processing of protected seeds of the breeder was found to be necessary.

44.In the light of the foregoing considerations, I propose that the Court of Justice should reply as follows to the questions referred for a preliminary ruling by the Landgericht Düsseldorf:

The sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights in conjunction with Article 9 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 must be interpreted as meaning that the holder of a protected variety can request the relevant information from an undertaking which supplies processing services in respect of seeds belonging to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94, regardless of whether there is any indication that it has processed propagating material resulting from planting a protected variety of the holder.

1 – Original language: Spanish.

2 – Council Regulation of 27 July 1994 (OJ 1994 L 227, p. 1).

3 – Commission Regulation of 24 July 1995 (OJ 1995 L 173, p.14).

4 – Under which farmers are entitled to plant on their own holdings, without the need for authorisation, the product of the harvest obtained by planting propagating material of a protected variety, on condition that they pay equitable compensation.

5 – The background and nature of the Community system of legal protection for plant variety rights are set out in points 7 to 18 of the Opinion I delivered in Case C-305/00 <i>Schulin</i> [2003] ECR I‑3525.

6 – Van der Kooij, P.A.C.E., ‘Introduction to the EC Regulation on Plant Variety Protection’, <i>Kluwer Law International</i>, 1997, p. 36: ‘It only applies in relation to farmers who use the product of their <i>own</i> harvest for propagating purposes on their <i>own</i> holding.’

7 – Cited above, footnote 5.

8 – Paragraphs 62 to 68.

9 – Case C-182/01, in which judgment is pending. See my Opinion dated 7 November 2002.

10 – Order of the Court of 4 February 2000 in Case C-17/98 [2000] ECR I-665.

11 – There is a lengthy explanation of this incident at points 28 to 30 of the Opinion I delivered on 7 November 2002 in the <i>Jäger</i> case.

12 – Defined as a contract where one of the parties undertakes to allow the other to enjoy or use an item for a fixed time at a specified price. Article 1543 of the Spanish Civil Code.

13 – Paragraphs 57, 63 and 66.

14 – Paragraphs 57, 63 and 66.

15 – Original language: Spanish.