C-182/01

Its activities include the monitoring of the rights of holders of plant variety rights nationally and internationally, in particular 1 — Original language: Spanish. 2 — Council Regulation of 27 July 1994 (OJ 1994 L 227, p. 1), the conduct of checks, in undertakings amended by Council Regulation of 25 October 1995 (OJ which propagate and distribute seeds, in 1995 L 258, p. 3). The amendments do not affect the content of the provisions whose interpretation is requested respect of the rights of shareholders or third in these preliminary reference proceedings. parties, the collection of licence fees in 3 — Commission Regulation of 24 July 1995 (OJ 1995 L 173, p. 14). The Commission has adopted implementing rules on respect of plant variety rights, and the two other occasions: in Regulation (EC) No 1238/95 of 31 May 1995 establishing implementing rules for the applica- implementation of general measures which tion of Regulation No 2100/94 as regards the fees payable to serve to promote production, guarantee the Community Plant Variety Office (OJ 1995 L 121, p. 31) and in Regulation (EC) No 1239/95 of 31 May 1995 sales, and supply faultless, top-quality seed establishing implementing rules for the application of Regulation (EC) No 2100/94 as regards proceedings before to consumers. However, it does not pur- that Office (OJ 1995 L 121, p. 37). chase or sell seeds.

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3. As the Oberlandesgericht Düsseldorf persons who have merely mandated the states in its order for reference, the appel- appellant, for a consideration, to invoke lant's shareholders include holders and their plant variety rights against the use by exclusive licensees of plant variety rights farmers for propagating purposes, on their under the Sortenschutzgesetz (German Law own holding, of the product of the harvest on the Protection of Plant Varieties), under which they have obtained by planting Regulation No 2100/94 and under both propagating material of a protected variety. provisions. The appellant's shareholders are also said to include the Bundesverband Deutscher Pflanzenschützer e. V., a civil association of which a large number of holders and exclusive licensees of plant variety rights, amongst others, are mem- bers.

An initial group of persons whose rights it is invoking are shareholders in the appel- lant; a second group consists of members The appellant claims that the farmer must, which belong to an association which is a by virtue of being a farmer, provide it with shareholder in Saatgut-Treuhandverwal- that information, but does not assume the tung; and a third group is made up of obligation of showing that, in each case, the respondent has cultivated a specific variety or the extent to which he has done so. Mr Jäger opposes the claim because, amongst 4 — In reply to the question I put to hint during the hearing, the representative of the appellant company in the main other reasons, the other party has adduced proceedings informed the Court of Justice that its own no evidence that he has used any of the shareholders and those of the Bundesverband Deutscher Pflanzenschutzer are holders of a plant variety right. protected plant varieties.

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I I — The questions referred for a pre- 2. Must the sixth indent of Article 14(3) liminary ruling of ... Regulation No 2100/94, read in conjunction with Article 8 of ... Regulation No 1768/95, be interpreted as meaning that the holder of a plant variety right protected 6. The claim was dismissed at first under Regulation No 2100/94 can require instance. The Oberlandesgericht Düssel- the information referred to in the above- dorf, which is hearing the appeal, decided mentioned provisions from any farmer, to stay proceedings and refer the following irrespective of whether or not there is any two questions to the Court of Justice for a indication that he has carried out a specific preliminary ruling: act of use in respect of the variety in question under Article 13(2) of Regulation No 2100/94, or at least otherwise used the variety in question on his holding?'

8. In order to be protectable, varieties must be distinct, uniform, stable, new and designated by a denomination. The person who bred, or discovered and developed the variety, or his successor in title, shall be The national court is interested in the entitled to the Community plant variety interpretation of the sixth indent of Art- right. icle 14(3), which provides:

'Conditions to give effect to the derogation provided for in paragraph 1 and to safe- guard the legitimate interests of the breeder and of the farmer, shall be established, ... , in implementing rules, ... , on the basis of the following criteria: 9. Under Article 13 of Regulation No 2100/94, only the holder of a Community plant variety right shall be entitled to effect certain acts, which are set out in paragraph 2, namely: (a) production or reproduction (multiplication); (b) conditioning for the purpose of propagation; (c) offering for sale; (d) selling or other marketing; (e) exporting from the Community; (f) import- ing to the Community; and (g) stocking for any of the purposes mentioned in (a) to (f). The holder may give authorisation for those — relevant information shall be provided acts to be carried out. He may also make his to the holders on their request, by authorisation subject to conditions and farmers and by suppliers of processing limitations. services; ...'.

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'Rights referred to in paragraph 1 may be invoked by individual holders, collectively by several holders or by an organisation of holders which is established in the Com- munity at Community, national, regional or That information is to refer to the current local level. An organisation of holders may marketing year, and to one or more of the act only for its members, and only for those three preceding marketing years for which thereof which have given the respective the holder has not previously requested mandate in writing to the organisation. It information.

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IV — The proceedings before the Court of A — The views of those who have presented Justice observations

14. By this question, which it has set out in 16. Mr Jäger considers that a limited three paragraphs, the national court wishes company is not composed of members to know whether a limited company, within the meaning of Article 3(2) of governed by German law, constitutes an Regulation No 1768/95. In the light of the ‘organisation of holders' within the mean- terminology used, the legislature had in ing of Article 3(2) of Regulation mind a group with a common professional No 1768/95 and whether, as such, it may interest adopting the legal form of an also invoke the rights conferred by Article 3 association or similar structure, not an (1) on holders of plant variety rights who, undertaking with independent legal status although not shareholders, belong to an and organisation which is disassociated association which is a shareholder, or who, from the individual interests of the holders. although neither shareholders nor members In his view, the appellant is merely a fee- of an association which is a shareholder, collecting undertaking motivated by purely entrust it with that task for a consideration. financial interests.

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17. The Italian Government considers that 1768/95. The meaning of organisation of an organisation of holders should not adopt holders within that provision is so broad the form of a company with legal person- that the Community legislature seems to ality. If it did so, it would have third party have wanted it to encompass all the types of status in relation to each holder of a plant association existing in the Member States. variety right and therefore could not be the However, irrespective of the legal form it transferee of the benefits granted to holders adopts, it must comply with the conditions by Article 14 of Regulation No 2100/94. laid down by the provision for its oper- ation.

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holders or by an organisation of holders only for their members, who must be which is situated in the Community, at holders of a plant variety right. That Community, national, regional or local condition precludes them acting for them- level. selves or for third parties, as in the case of the appellant company in the main proceed- ings. Likewise, it prevents licencees, whether or not exclusive, of the exploita- tion of protected plant varieties from belonging to such organisations, since they are not holders and therefore do not have the rights which Article 14 of Regulation I do not agree with the Italian Govern- No 2100/94 confers on holders when laying ment's line of argument. Provided that all down the provisions governing the agricul- the company's members are holders of a tural exemption. plant variety right and that its company object is to invoke the rights arising under Article 14 of Regulation No 2100/94, the fact that it has its own legal personality does not infringe Article 3(2) of Regulation No 1768/95, since that provision, as I have pointed out, does not require the organisa- tion to adopt a specific legal form.

Second, it is a prerequisite that a holder be a member of the organisation or a share- holder; however, that is not enough, since an organisation may represent him only if he has given it his mandate in writing. The I also disagree that the holder assigns his holder is required to comply with that rights to the company. Acquiring the status formality in the deed of incorporation or of member of an organisation which adopts subsequently. the form of a limited company does not involve transferring rights, particularly as Article 3(1) establishes that, other than the right on an already quantifiable payment, the other rights which the organisation may invoke may not be transferred to third parties, unless they are transferred together with a Community plant variety right.

24. The situation in which an association a shareholder: if a holder asks the company of holders is a shareholder of a limited to assert his rights for a consideration, that company which protects the rights arising does not amount to acquiring the status of a for holders of plant variety rights from the shareholder. farmer's privilege is treated in the same way. Indeed, provided that the association as such is composed of holders, the company may act in their name as well, on condition that they have given it an express mandate to do so. This is a formula likely to encourage an organisation of 26. For the reasons stated, I consider that a holders established in one Member State limited company governed by German law to invoke, in that country, the rights of may constitute an 'organisation of holders' holders situated in another Member State, within the meaning of Article 3(2) of who have formed an organisation in order Regulation No 1768/95 and, as such, to protect their rights collectively. invoke, on behalf of holders of plant variety rights, the rights referred to in Article 3(1), on condition that they are shareholders, that they have given it their mandate in writing and that it acts on their behalf. The company is also authorised to invoke those rights on behalf of holders of plant variety 25. However, compliance with these rights who are members of an association requirements precludes an organisation of which is a shareholder, provided that they holders within the meaning of Article 3(2) have given it their mandate in writing. On of Regulation No 1768/95 from enforcing the other hand, it does not represent the rights of persons who are not members, persons who are neither shareholders nor as in the case of those who, although members of an association which is a neither shareholders nor members of an shareholder. association which is a shareholder of Saatgut-Treuhandverwaltung, have given it their mandate to assert, for a consider- ation, their rights in respect of the farmer's privilege.

28. This question is identical to that posed by the Oberlandesgericht Frankfurt am Main in August 2000, which gave rise to Case C-305/00 Schalin, in which I delivered my Opinion on 21 March 2002 and which Aware, from the decision in Emesa Sugar, 5 is pending judgment. The facts of that case that the Advocate General participates are very similar to those which have led to publicly and personally in the process of the proceedings against Mr Jäger; the preparing the judgment of the Court of difference lies in the fact that then Saat- Justice putting an end to the dispute gut-Treuhandverwaltgung was the respond- between the parties, so that, in view of the ent, whereas it is now the appellant. judicial nature of his contribution, his acts are not subject to an adversarial procedure, the appellant in the main proceedings organised an ingenious ruse. Since in earlier proceedings, in which the same question had been referred for a preliminary ruling, 6 the reply proposed by this Advocate Gen- eral did not take the direction sought by the company in its claims, nor were the 29. In July 2002, the European Seed circumstances those required by case-law 7 Association wrote me a letter in which, for declaring, pursuant to Article 61 of the after saying that, at the request of the Rules of Procedure, that the oral stage be Directorate-General for Agriculture of the reopened, it decided to discontinue the Commission of the European Communities, action it had brought in order to prevent it had assisted in defining the agricultural the Court of Justice giving a ruling without exemption contained in Regulation No 2100/94 and in Regulation No 1768/95, it explained to me the aim of the legislature in 5 — Case C-17/98 Emesa Sugar (2000| ECR 1-665. establishing rules to govern this situation, 6 — Schuim, cited above. and asked me to reconsider the reply which 7 — See mv Opinion in Case C-466/00 Kaba, delivered on 11 July 2Ó02 (iiidgmcnl of 6 March 2003, |2003] ECR 1-2219, I had proposed that the Court of Justice 1-2222), points 108 and 109,

having dealt with its observations on the circumstances in which the judicial function Advocate General's Opinion. It would is currently exercised in the western world, therefore be able to reinforce its arguments those limits are reflected in the fact that, in the following case, in which the same since the courts have a finite time in which disagreement was raised. to settle the claims brought before them, each person has to assert his claims with no loss of safeguards but without adversely affecting his fellow citizens' right of access to the courts, by avoiding bringing actions which are unnecessary or untimely, exces- sively complicated or confused in form, or too lengthy, and by not bringing multiple actions in order to give full rein to his To strengthen its position, it contacted the exclusive interests. 8 Secretariat of the Court of Justice and requested that the Schulin case be discon- tinued and, in the alternative, that judgment should not be given in that case before the hearing was held in the present case. Although the German court, the Oberlan- desgericht Frankfurt am Main, did not agree to discontinue the action, and per- A — The views of those who have sub- sisted with its reference for a preliminary mitted observations ruling, the delay in the administration of justice, an inherent consequence of the high number of cases to be decided, ran in the company's favour, so that it has had the opportunity to submit its oral pleadings in 31. Saatgut-Treuhandverwaltung main- this case before the Court of Justice has tains that the sixth indent of Article 14(3) given a ruling on the merits in the earlier of Regulation No 2100/94, in conjunction one. That is all very well if it helps to with Article 8(2) of Regulation No improve the quality of judicial protection, 1768/95, allows the holder of a plant but we must remember the principle of the variety right to require any farmer to duty to act fairly in proceedings which the inform him whether he has exercised the parties owe to judicial bodies, in this case privilege and to let him know the extent of not only to the Court of Justice but also to the operation, even if the holder has no the German courts, and also the principle of evidence that a protected variety has been solidarity with and respect for the other used on his holding in the past. In support litigants which, owing to the complexity of of this interpretation it cites no fewer than and constant increase in legal proceedings 10 recent judgments of German courts of on all fronts, requires that a person who first instance which have adopted the same brings an action must — subject always to position. its right to take all the steps necessary for protecting its rights — do so in a reasonable manner, so as not to affect the duration or 8 — In reply to the question I put to him during the hearing, the depth of analysis of claims made by others. representative of Saatgut-Treuhandverwaltung admitted That is to say, the right to effective judicial that bringing one action, subsequently attempting to discontinue it, and raising similar actions in other proceed- protection also has its limits. In the ings was part of a planned strategy to reply to the Advocate General's Opinion.

The Commission adds that the exercise of the farmers' privilege presupposes, by any reckoning, the existence of a relationship with the holder since, before the product of the harvest of the protected variety is 32. At the hearing, the United Kingdom resown, they must have concluded some Government's agent advocated that Article agreement for the first use, either directly, 14(3), sixth indent, of Regulation No or indirectly by means of the purchase of 2100/94 and Article 8 of Regulation No seeds from a supplier. It submits that, as a 1768/95 should be interpreted literally. general rule, the holder has access to the Since those provisions do not distinguish information relating to the transactions between farmers in general and farmers involving his protected varieties. Otherwise, who have already sown a protected plant the best thing to do would be to contact the variety on their holding, they cannot be seed wholesalers or other suppliers who taken to mean that only the latter are market his products, before trying to required to reply to a request for informa- impose on all farmers an enforceable tion made by a holder. Furthermore, if the obligation to supply information.

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B — Reply to the question referred for a species listed in Article 14(2) as covered by preliminary ruling the exemption, there are some which are very extensively and commonly grown, such as barley, wheat and potatoes.

34. After studying closely the written and oral statements made before the Court of Justice in these proceedings, I have found no grounds for amending the view I expressed in the Opinion delivered in Case C-305/00, cited above.

Article 13 specifically defines the commer- cial transactions requiring the holder's authorisation; these include transactions made with components of a variety and also with the material harvested (flowers and fruit, for example) from reproduction to storage. 37. As I have already pointed out in the Opinion I delivered in Case C-305/00 (Schulin) some farmers seem to feel that they are adversely affected by these regula- tions, because they consider that they limit the practice, carried on in the sector from 36. The exercise of Community plant time immemorial, of keeping part of the variety rights is subject to restrictions laid product of one harvest in order to make down in provisions adopted in the public free use of it as propagating material in the interest. Since that includes safeguarding next. However, the fact is that, as a result of agricultural production, Article 14 of the the work of breeders, significant advances Regulation authorised farmers, under cer- have been made in the development of new tain conditions, to use the product of their plant varieties which increase and improve harvest for reproduction. Of the 20 or so agricultural production.

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Since the obligation to remunerate the Furthermore, as seen in the section devoted breeder for the use of the product of the to the reply to the first question, Article 3(2) harvest for propagating purposes affects of Regulation No 1768/95 provides holders only those who sow a protected variety on with the opportunity of forming an organ- their holding, farmers who use uncertified isation in order to invoke, collectively, their seed are exempt from the obligation to rights arising as a result of the agricultural supply information and pay remuneration. exemption.

In order to facilitate monitoring, which would be practically impossible under those 40. I should like to highlight a point which, conditions, Article 14(3), sixth indent, of although it is obvious, seems to have Regulation No 2100/94 and Article 8 of escaped the attention of the representative Regulation No 1768/95 require the farmer of Saatgut-Treuhandverwaltung and the to provide the holder, under contract or on agent of the United Kingdom Government: request, with the relevant information for the aim of Regulation No 2100/94 is not to him to determine whether it is appropriate regulate any agricultural production sector to seek remuneration, and also the amount in the Community, but to establish Com- of any remuneration. That requirement to munity plant variety rights. Consequently, provide information at the request of the when its provisions mention the 'farmer' holder extends to processors. they are not referring to any agricultural

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operator who carries out his activity within limited aim of that legislation, I have all the the territory of the Union, but only to one more reason to consider that the 'farmer' on who falls within the persons covered by the whom it imposes certain obligations cannot regulation, who are those who use pro- be any farm worker within the European tected plant varieties on their holdings. Union; it can only be an operator to whom the legislation applies, that is to say, some- one who has acquired propagating material from one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94.

42. The sole objective of Regulation No 1768/95 is to implement Article 14(3) of Regulation No 2100/94, the provision which lays down the conditions for giving effect to the agricultural exemption, by 43. Article 8 of Regulation No 1768/95 protecting the legitimate interests of the lays down detailed rules relating to the farmer and those of the holder. Given the content of the information which must be supplied by a farmer who is in a position to use the product harvested with propagating 9 — In the circumstances, if the legislature had wished to refer to material of a protected variety. Under all the farmers in the Community it should have said so Article 8(1), the farmer and the holder specifically, indicating that they were all affected by the duty to provide information to the holders, irrespective of may specify, in a contract, the details to be whether they had planted on their holdings certified seed supplied by the former to the latter. That of one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94. In any event, there are more all- contract is additional to the main contract, encompassing expressions than 'farmers' which the legisla- ture could have used, like, for example, 'todos los in which the holder or his representative agricultores', 'cualquier agricultor', 'tous les agriculteurs', authorises the farmer to carry out one of 'l'ensemble des agriculteurs', 'chaque agriculteur', 'all farm- ers', 'every farmer', 'alle Landwirte' or 'jeder Landwirt'. the acts listed in Article 13(2) of Regulation

44. In the absence of an additional contract 46. I do not agree with this view. Admit- concerning the details of the information tedly, under Article 27 of Regulation No which has to be provided, a legal relation- 2100/94, Community plant variety rights ship exists between, on the one hand, the may form, in full or in part, the subject of holder, his representative or the traders contractually granted exploitation rights, authorised to sell the propagating material exclusive or non-exclusive. However, when of his protected variety and, on the other, a holder grants a licence, there is nothing to the farmer who purchases it. prevent him imposing any conditions and limitations appropriate to his right. In any event, the provision allows him to invoke the rights conferred by the Community plant variety right against a licensee who contravenes the clauses of the contract. Since it is for the holder to monitor compliance with his rights by farmers and other economic operators, he is the person with the greatest interest in there being a record of the transactions relating to the propagating material of his protected plant varieties and, more particularly, of the 47. It should be added that it is impossible species in respect of which farmers may to assess in the abstract whether the exercise their privilege of using the product conditions which holders are able to impose of the harvest for a subsequent sowing or on licensees, in order to ensure compliance planting. with their rights in respect of the agricul- tural exemption, may be contrary to Article 81 EC. It is necessary to consider, in each case, whether it is a question of agreements, decisions or prohibited practices and, sub- sequently, to ascertain whether the excep- tions provided in Article 81(3) EC are 45. The United Kingdom and, in particu- applicable. lar, the appellant company maintain that it is practically impossible for holders to know which farmers have purchased seed of their protected varieties, since they grant licences for multiplication and are not concerned with subsequent transactions. Saatgut-Treuhandverwaltung added during 48. Article 8(2)(a) to (f) of Regulation No the hearing that the holders' attempt to 1768/95 gives the relevant details which the impose binding contracts on the economic farmer must supply to the holder if there is agents who participate in the distribution no contract; amongst these are, first, the

name of the farmer, the place of his 51. Fourth, if the circumstances relating to domicile and the address of his holding. the use of the product of the harvest and the amount cannot be confirmed, the farmer has to indicate the amount he has used of licensed propagating material of the holder's variety and the particulars of the supplier. In my view, there is no reason why it should be superfluous or unnecessary to request that information, even though if the holder, either directly or through the organisation to which he belongs, contacts the farmer, that means that he already has part of it. During the hearing, Saatgut-Treuhandver- The farmer's obligation to include that waltung's representative stated that the fact information in his statement may be that the farmer has, in that event, to provide explained partly by its use for identification the supplier's particulars, confirms its argu- purposes and partly by the fact that it may ment that the holder does not have that be useful to the recipient to check or information. However, I disagree with this complete it. interpretation. In my view, if a farmer acquires propagating material from a pro- tected variety but does not make use of the privilege, it may also be of interest to the holder to find out the amount used in relation to the quantity purchased and, for 49. Second, the farmer must indicate the purposes of checking, to know who has whether he has exercised the privilege in supplied it to him. respect of a variety belonging to the holder. I consider that that provision confirms that, when the holder asks for the information, he knows that the farmer is in a position to have used that product, that is to say, that he has previously purchased propagating material of the holder's protected variety. 52. As regards monitoring by the holders, Article 14 of Regulation No 1768/95 requires farmers to keep invoices and labels from at least the three marketing years preceding the current marketing year, which is as far back as the holder's request for information regarding the use of the 50. Third, if the farmer has used the product of the harvest may go. product on his holding, he has to specify, in his statement, the amount he has used, so that the remuneration payable to the holder may be calculated. In that case, he is also required to supply the particulars of the persons who have processed the product for his subsequent use, if he has used the 53. Under Article 8(5) and (6) of Regula- services of third parties. tion No 1768/95, the holder is permitted,

54. The second subparagraph of Article 8 (3) of Regulation No 1768/95, which 56. It is therefore to be concluded, from the specifies the marketing years with respect wording of the provisions whose interpret- to which the farmer is required to give the ation is requested by the German court, as information relating to the use of the well as from their context and the objectives privilege, confirms the decisive role which which they pursue, 10 that the obligation to the holder plays or is called upon to play in supply the relevant information to the the marketing chain of his protected plant holder of a protected plant variety, in variety. Under that provision, the first respect of the use of the privilege, affects marketing year must be the one in which all farmers who have acquired licensed the first request for information was made in respect of the variety and the farmer concerned, provided that the holder has 10 — Case C-301/98 KVS International [2000] ECR I-3583, made sure that, when the farmer purchased paragraph 21. See also Case 292/82 Merck [ 1983] ECR 3781, paragraph 12, and Case C-223/98 Adulas [1999] the propagating material of the protected ECR I-7081, paragraph 23.

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propagating material of that variety, and who purchases the propagating material. those are the only circumstances in which With that information, he may more the holder is entitled to ask for that accurately send his requests for information information. to farmers who are required to give it to him.

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VII — Conclusion

59. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the questions submitted by the Oberlandesgericht Düsseldorf:

(1) A limited company governed by German law may constitute an 'organisation of holders' within the meaning of Article 3(2) of Regulation No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation (EC) No 2100/94 on Community plant variety rights and, as such, invoke, on behalf of holders of plant variety rights, the rights provided for in Article 3(1), on condition that they are shareholders, that they have given it their mandate in writing and that it acts on their behalf. The company is also authorised to invoke those rights on behalf of the holders of plant variety rights who are members of an association which is a shareholder, provided that they have given it their mandate in writing. On the other hand, it does not represent persons who are neither shareholders nor members of an association which is a shareholder.

(2) Article 14(3), sixth indent, of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, read in conjunction with Article 8 of Regulation (EC) No 1768/95, must be construed as meaning that the obligation to give the holder of a protected plant variety right information concerning the planting on their holdings of the product of the harvest obtained using propagating material of that variety, applies only to farmers who have purchased that material in the past and who are therefore in a position to have planted it, irrespective of whether they have done so or not.