13.6.2016

EN

Official Journal of the European Union

C 211/64

(Case T-177/16)

(2016/C 211/79)

Language of the case: German

Parties

Applicant: Mema GmbH l.G. (Terlan, Italy) (represented by: B. Breitinger and S. Kirschstein-Freund, lawyers)

Defendant: Community Plant Variety Office (CPVO)

Details of the proceedings before the CPVO

Community plant variety right at issue: Braeburn 78 (11078) — Plant variety Application No 2009/0954

Contested decision: Decision of the Board of Appeal of the CPVO of 12 February 2016 in Case A001/2015

Form of order sought

The applicant claims that the Court should:

—annul the contested decision and refer the case back to the Board of Appeal for further decision with the direction to annul the contested decision and order the CPVO to carry out a complementary examination pursuant to Article 57(3) of Regulation No 2100/94;

—in the alternative, annul the decision of the Board of Appeal of the CPVO of 12 February 2016 (Case A 001/2015);

—in the alternative, in the event that an order is not granted in the form of the first and second points, stay these proceedings pursuant to Article 69(d) of the Rules of Procedure of the General Court in force from 1 July 2015 (‘the Rules of Procedure’) until a final decision has been made in the proceedings in accordance with Article 21(1) of Regulation No 2100/94 on the cancellation of plant variety rights for reference variety ‘Royal Braeburn’ (Application No 1998/1082; Plant variety No 11960). That decision is preliminary since, depending on the result, the reference variety will disappear or it will follow that Angers-Beaucouzé was and is unsuitable as a test location (see point 12) and therefore whether a complementary examination was necessary or not;

—order the CPVO to pay the costs.

Pleas in law

—Misuse of discretion — Infringement of Article 57(3) of Regulation No 2100/94;

—Infringement of a provision to be applied in implementing Regulation No 2100/94;

—Infringement of Point 57 of the CPVO apple test protocol;

—Infringement of Part IV of the CPVO apple test protocol;

—Infringement of the second sentence of Article 75 of Regulation No 2100/94 — Right to a hearing;

—Infringement of the first sentence of Article 75 of Regulation No 2100/94 — Incomplete statement of reasons.