In the underlying legal action that led to this CJEU reference, Saatgut-Treuhandverwaltungs GmbH (STV), a German company which brings together different plant variety right holders, was asserting the rights of the holder of the winter barley variety ‘Finita’, which is protected at EU level under the Basic Regulation. STV's website lists all the protected plant varieties administered by it and the fees payable for planting those varieties. STV asks farmers annually, to provide general information on any planting of one of those varieties and, for that purpose, sends them declaration forms together with a guide listing all the protected varieties administered by it in the relevant marketing year and the identity of the corresponding right holders and persons enjoying rights of exploitation.
The Vogels, who had no contractual relations with STV, did not respond to those requests for information. However, in December 2011, STV received information that, in the marketing year 2010/2011, the Vogels had been processing ‘Finita’ seeds. In May 2012, STV wrote to ask the Vogels to verify that information, which indicated undisclosed use of propagating material of that variety obtained by planting the variety, asking them to reply by 20 June 2012 at the latest. The Vogels did not comply with that request.
In July 2012, STV asked the Vogels to pay EUR 262.50, this being the full fee that would be due for licensed use of ‘Finita’ seeds (STV;s "C- Licence fee") as compensation for the damage suffered as a result of the undisclosed planting of that protected variety. No payment being received, STV sued the Vogels for it before a local court in Euskirchen. In September 2013 that court declined jurisdiction and referred the case to the Landgericht (Regional Court), Mannheim.
|Vogels among the barley|
No, said the Vogels:at the very most, they only owed the reduced fee for ‘authorised’ planting under the derogation laid down in Article 14(1) of the Regulation. What's more, for the conditions governing entitlement to compensation to be satisfied, there would have to be an infringement of the obligation to provide information to the right holder, as laid down in EU law, which was not proven here. At this point the Landgericht Mannheim decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Is a farmer who has planted propagating material obtained from a protected plant variety without having concluded a contract for so doing with the plant variety right holder required to pay reasonable compensation, as provided for in Article 94(1) ..., and — if he has acted intentionally or negligently — to compensate the holder for any further damage resulting from the infringement of the plant variety right in accordance with Article 94(2) ..., where he has not yet fulfilled his obligation under Article 14(3), fourth indent, of that regulation, in conjunction with Articles 5 and 6 of [the Implementing Regulation], to pay an equitable remuneration (planting fee) at the time when he actually made use of the product of the harvest for propagating purposes in the field?This morning the Advocate General proposed that the Court answer the questions as follows:
2. If the first question is to be answered to the effect that the farmer can still fulfil his obligation to pay an equitable planting fee even after he has actually made use of the product of the harvest for propagating purposes in the field, are the aforementioned provisions to be interpreted as fixing a period within which a farmer who has planted propagating material obtained from a protected plant variety must fulfil his obligation to pay an equitable planting fee in order for the planting to be capable of being regarded as “authorised” for the purposes of Article 94(1) of [the Basic Regulation] in conjunction with Article 14 of that regulation?’
The Opinion highlights some of the elements of the Regulation that lack clarity, but seems to make sense of them, balancing the public interest with the farmer's right and the concerns of right holders.
Once again this case is an example of the increased speed with which the CJEU is processing intellectual property cases. The reference for a preliminary ruling was received only in May of last year and we have already got as far as the Advocate General's opinion. According to the IPKat's calculations, we should be sure of a final ruling this summer.