On April 15, 2010 the Court of Justice of the European Union (ECJ) in Schräder v Community Plant Variety Office (CPVO), for the first time had to decide on the protectability of a plant variety. In its judgment (Case C-38/09 P) the ECJ confirmed in last instance the decision of the CPVO which had refused an application for plant variety protection.

New breeds of plant varieties that are distinct from known varieties and are homogenous and stable may obtain plant variety protection for 25 years. Plant variety rights are of great economic importance for agricultural plants (potatoes, grain) but also for decorative garden plants such as chrysanthemum and roses. Plant variety protection is being granted either by non-harmonized national plant variety law, or for all EU Member States, by the Community Plant Variety Office (CPVO) in Angers on the Loire, France, on the basis of the European Regulation for Plant Variety Rights.

The case that has now been decided finally by the ECJ relates to an application for plant variety protection filed in 2001 for the variety SUMCOL 01, belonging to the species Plectranthus ornatus. These are garden plants which apparently have the effect of deterring animals such as cats, and were
therefore called “Piss off”, a name chosen by the grower. Pursuant to the examination results of the CPVO which were attained in cooperation with the Federal Plant Variety Office in Hannover, Germany, the given variety cannot be distinguished from known varieties. A variety common in South Africa was relied on as reference variety for comparative purposes. Appeals filed by the grower, Mr. Ralf Schräder, before the Board of Appeal of the CPVO and the General Court of the EU (formerly Court of First Instance) remained unsuccessful. Now, the ECJ has dismissed the appeal of Mr Schräder against the decision of the General Court of November 19, 2008 as unfounded.

Besides a number of procedural questions that were also decided in favour of the CPVO, the proceedings centred primarily on the question of whether the CPVO had made any legal mistakes when establishing a lack of distinctness (against known varieties of the plant). This was denied by the ECJ. Neither the General Court nor the Court of Justice undertook any new examination of the facts. Rather, the General Court limited itself to examining whether the findings of the CPVO were affected with any procedural faults or mistakes of assessment. The Court of Justice confirmed, holding as follows:

77 In addition, it must be recalled that the General Court, which has jurisdiction only within the limits set by Article 73(2) of Regulation No 2100/94, was not required to carry out a complete review in order to determine whether or not the SUMCOL 01 variety lacked distinctness for the purposes of Article 7(1) of Regulation No 2100/94 but that it was entitled, 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 Regulation No 2100/94, is to be entrusted by the CPVO to one of the competent national offices, to limit itself to a review of manifest errors of assessment.

In summary, this means that the decisions of the CPVO concerning the essential substantive points of the Regulation on Plant Variety Rights such as novelty, distinctness, homogeneity and stability, insofar as they necessitate technical knowledge and expertise, will be examined by the Community courts only with regard to plausibility and lack of any decisive procedural faults.

Attorney-at-law (Rechtsanwalt) Dr. Alexander von Mühlendahl, J.D., LL.M., represented the Community Plant Variety Office before the ECJ.