Just another Plectranthus, says the CFI

The Court of First Instance (CFI) of the European Communities ruled yesterday in Case T-187/06 Schräder v Community Plant Variety Office (CPVO), an application to annul the decision of the CPVO's Board of Appeal that a "candidate variety" (ie a plant for which an application for registration is made) could not be clearly distinguished from a reference variety.

Schräder applied to the CVPO for a Community plant variety right under Council Regulation 2100/94 on Community plant variety rights. The candidate variety, SUMCOL 01, was originally thought to be a Coleus but it was later agreed that it was a Plectranthus. The CPVO asked the Bundessortenamt (the German Federal Plant Variety Office) to conduct a technical examination, which it did, finding that SUMCOL 01 was not distinct from Plectranthus ornatus (pictured, right) but that the examination had to be retaken. The examiner who was responsible for the technical examination then asked the curator of the Kirstenbosch Botanical Gardens in South Africa to provide cuttings or seeds which he wished to use as reference varieties against which SUMCOL 01 could be examined. The curator replied that the species to which SUMCOL 01 belonged was commonly grown in South Africa and that he knew that species very well. The final report of the Bundessortenamt concluded that SUMCOL 01 was not distinguishable from the reference variety sent from Kirstenbosch.

In the light of this, the CPVO rejected Schräder's application for lack of distinctiveness. Schräder appealed to the CPVO Board of Appeal of the CPVO which, following further investigations and even a visit by one of its members to South Africa, for which the CPVO sought to charge Schräder an advance of 6,000 euro. Schräder refused to pay, arguing that he had not sought the field trip to South Africa and challenging the evidential basis of the Board's decision. The Board of Appeal ultimately dismissed Schräder's appeal against rejection of his application, determining that SUMCOL 01 could not be clearly distinguished from Plectranthus ornatus. Schräder then lodged an application at the Court of First Instance, seeking to annul the Board's decision.

The CFI dismissed Schräder's appeal. In its view

* it was not sufficient for Schräder, in challenging the decision of the Board of Appeal, to call into question the CPVO's assessment, based on the results of the technical examination, that SUMCOL 01 and the reference variety constituted two different varieties. The CPVO's assessment was sufficient in itself to justify the Board of Appeal's decision and the Board of Appeal was entitled to take account of the evidence on which it was established that the reference variety was a matter of common knowledge.

* as to whether the reference variety was a matter of common knowledge, the statements of the curator at Kirstenbosch had been corroborated by the South African authorities and several scientific publications and Schräder's argument to contrary effect was based on an erroneous premiss.

* In so far as a measure of inquiry might be decided on of the Board of Appeal's own motion, without it being required to discuss with the parties in advance as to whether the measure was appropriate or necessary, such a measure could also be deferred on the Board of Appeal's own motion under the same conditions if, in the course of its deliberation, the Board of Appeal made a different assessment. Such decisions were not adopted by surprise, but were merely the exercise by the Board of Appeal of the discretion conferred on it by Regulation 2100/94 to carry out an examination of the facts of its own motion by way of the means of taking evidence.

* the Board of Appeal was not entitled to make implementation of the measure in question subject to the deposit of a sum by Schräder. However, that plea had to be rejected as ineffective in the context of an application for the annulment of the Board's decision once that decision had been adopted, without the measure of inquiry in question having been implemented and without the Board of Appeal drawing any legal consequence from it which was unfavourable to Schräder. The Board's decision had indeed been based on such grounds and on evidence to which Schräder had access and on which he could have expressed his views both orally and in writing.

* the Board of Appeal was entitled to deduce from the evidence at its disposal that SUMCOL 01 could not be clearly distinguished from a reference variety which was a matter of common knowledge at the time that the application had been introduced. It was therefore in no way required to carry out a new technical examination.

The IPKat received a helpful note from Bart Kiewiet, President of the CPVO, alerting him to this decision, for which the Kat says "thanks". The President draws attention to the CFI's view as to the scope of the Court's powers of judicial review, adding:

"The Court is of the opinion that the appraisal of the distinctive character of a plant variety, a major requirement for plant variety protection, is of a scientific and technical complexity such as to justify a limit to the scope of judicial review".

The IPKat is ever conscious of the fine line that separates a review of the manner in which the law is applied and a review of the actual factual basis of a decision, agreeing that the CFI is there to see that the machinery of justice is functionally normally, not to impose its own decision in place of that of another duly constituted tribunal. He also thinks that the CFI has got it right here: do accept the opposite conclusion is to assume that the assessment of the appraisal of the distinctive character of a plant variety is a task better performed by appellate judges than by specialists in the field in question.