When can a CPVR holder request information from a supplier?

What is the interpretation of the sixth indent of Art. 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights and of Art. 9(2) and (3) of Commission Regulation (EC) No 1768/95 implementing rules on the agriculture exemption provided for in Art. 14(3) Council Regulation (EC) No 2100/94? In other words, what is the obligation of the supplier of processing services to provide information to the holder of a Community plant variety right and what requirements regarding the time and content of an application for information are capable of forming the basis of the obligation to provide information?

The General Court gave its answer to those questions last Thursday (15th November) in Case C-56/11 Raiffeisen-Waren-Zentrale Rhein-Main eG v Saatgut-Treuhandverwaltungs GmbH. Although Advocate General Jaaskinen's Opinion, covered by the IPKat here, was not directly referred to, the Court broadly followed his recommendations. The facts are laid out there, but here's a recap.

Plant variety right holders, represented by STV, entered into planting contracts with RWZ, a farming cooperative supplying processing services, providing for the propagation of certified seeds for the purpose of marketing. RWZ services included the conditioning of harvester material for storage and future planting for both plant variety right holders and farmers. STV sought information from RWZ for marketing years 2005/2006 and 2006/2007 concerning its processing operations provided to farmers in connection with the growing of crops from certified seed belonging to plant variety right holders represented by STV.

RWZ refused, broadly on grounds relating to the formal and evidential sufficiency of the information requests themselves: first, STV were out of time: information requests could only be made during the marketing year for which the information was sought (Art. 9(3), Reg. 1768/95); secondly, it was a necessary requirement that each information request contain indications that processing operations were carried out that were subject to the obligation to provide information (sixth indent, Art. 14(3), Reg. 2100/94) and; thirdly, it was not possible to derive indications of the possible planting of certified seeds simply from the carrying out of processing operations in connection with the growing of crops under contract for the rights holder.

The court at first instance found in STV's favour. Following an appeal by RWZ, the Oberlandesgericht Düsseldorf decided to stay proceedings and sought a preliminary ruling. Three questions were referred to the Court of Justice of the European Union (CJEU), which were interpreted and answered as follows:

Question 1 Essence [available in all good perfumeries soon]:

'Whether Article 9(3) of Regulation No 1768/95 is to be interpreted as meaning that the obligation of the supplier of processing services to provide information on the protected varieties in question is extinguished if the request for information from the holder of the variety rights is received by the supplier of processing services after the expiry of the marketing year concerned by that request.'

Discussion and Answer: The farmer's obligation to provide information expressly limits the holder's right to make a request for information to, at most, three preceding marketing years (Art. 8(3)). As that obligation is virtually identical to the supplier's, it was not necessary to make a distinction between the period covered by the  holder's requests depending on who the request was addressed to. Such an interpretation supported the objective of Reg. No 1768/95, which seeks to safeguard the interests of the breeder and the farmer by maintaining a reasonable balance between all legitimate interests. The holder's interests in controlling the use of variety constituents or harvested material were guaranteed by providing a degree of flexibility when submitting requests of information. The interests of the supplier of processing services were guaranteed as they only have to keep the information for a limited period of time, after having been given prior warning. As such, a request for information by a right holder referring to a given marketing year received by the supplier of processing services after the expiry of that marketing year cannot give rise to an obligation on the part of the supplier to provide information. However, Art. 9(3) means that the holder of the plant variety right may make a request for information to the supplier with regard to one or more of the three marketing years preceding the current marketing year, in so far as the first request and the processor concerned was made during the first of the preceding marketing years.

Questions 2 & 3 Essence [composed by the finest CJEU chemists]:

'Whether the sixth indent of Article 14(3) of Regulation No 2100/94 read in conjunction with Article 9 of Regulation No 1768/95 is to be interpreted as meaning, on the one hand, that the fact that a farmer has planted under contract a protected plant variety for the benefit of its holder is capable of constituting an indication which gives rise to the information obligation on the supplier who has processed the consumption-related seed of that variety and, on the other hand, that the holder’s request for information must contain evidence of the indications with which he justifies his right to information.'

Discussion and Answer: As regards a farmer's planting under contract and the supplier's obligation to provide information, although such a contract constitutes an indication, it did not follow that a right to obtain information from the supplier was automatically established. A CPVR holder's right to information was established against a supplier only where the holder had some indication that the supplier has processed or intends to process the product of the harvest of the variety (per Case C‑336/02 Brangewitz [2004] ECR I‑9801). As such, the fact that a farmer has planted under contract cannot, by itself, constitute an indication that a supplier will process or intends to process the product of the variety. Such a situation was just one of several elements that a national court would need to consider when assessing, on the particular facts of the case, whether there is an indication and therefore a supplier's obligation to provide information.  

As regards the question of evidence, the court emphasised that the formal requirements for an information request (Arts. 8(4) and 9(4)) do not require that a request contain evidence to support the indications. Further, not only could such a request be made orally, but the CJEU had also found in Case C‑305/00 Schulin [2003] ECR I‑3525 that a farmer's acquisition of propagating material alone was an indication capable of giving rise to a farmer's obligation to provide information. As such, it did not follow that evidence was necessary.

This Kat thinks the court got this one right. It balanced the needs of rights holders, suppliers and farmers. Having no limitation period for an information request would be far too onerous on farmers and/or suppliers; while placing an evidential burden on a rights holder when making a request would limit the central feature of a CPVR, which is to protect and authorise the use of protected varieties. But, she adds the caveat that she is no CPVR expert, and asks IPKat reading CPVR enthusiasts to share their views on what this ruling on information request procedure will mean in practice.