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The Spanish Supreme Court has requested a preliminary ruling from the Court of Justice of the European Union (CJEU) which will enable the highest court in the Union to rule for the first time on the main rights held by owners of plant varieties (similar to patents). The conclusions by the Advocate General are expected on September 18. The court must subsequently hand down a decision which, in a high percentage of cases, tends to coincide with the conclusions of the Advocate General.

In this case, Garrigues is defending the rights of the breeder or owner plant variety. The judgment by the CJEU will establish case law for any complaint based on the infringement of rights in plant varieties, and will define the scope and limits of the rights of the breeder. The decision that the European court hands down, must be applied by the remaining courts of the EU member states when handling similar cases.

Three questions referred for a preliminary ruling

The case commenced following the decision issued by the Spanish Supreme Court on March 7, 2018 to submit three questions to the CJEU for a preliminary ruling regarding the interpretation of articles 13.2 and 13.3 of European Union Regulation (EC) no. 2100/1994, regarding the scope of the breeder’s right (Case C-176/18- Club de Variedades Vegetales Protegidas v Adolfo Juan Martínez Sanchís). The backdrop is a legal proceeding filed due to the infringement of the exclusive rights in the protected plant variety Nadorcott.

The questions that were referred to the CJEU for a preliminary ruling were the following:

1.  In the first question referred, the Supreme Court asks whether collecting successive tree harvests is conduct that comes under article 13.2 of Regulation 2100/94 (acts totally covered by the plant breeder’s exclusive rights) or if, conversely, it is an act that forms part of harvested material that requires compliance with article 13.3 of Regulation 2100/94 (the protection of which is subject to more conditions).
2. The second question submitted by the Supreme Court is aimed at determining which acts of those listed in 13.2 of Regulation 2100/94 refer to the harvested material for the purposes of article 13.3 of that Regulation.
3. The third question—of considerable practical importance—refers to the condition regarding the unauthorized use of components of the variety from which the harvested material is obtained, which is necessary to activate article 13.3 of Regulation 2100/94. In particular, the Supreme Court asks whether that condition (absence of authorization) can be applied in a case in which the acts of reproduction of the trees from which the harvested material was obtained took place during the period of provisional protection (i.e., before the grant of the plant variety, when there was therefore no right to prohibit or permit).

In the opinion of Pedro Tent, partner of Garrigues Litigation and Arbitration Department  and head of Intellectual Property for the Levante area, who is representing Club de Variedades Vegetales Protegidas in this lawsuit, the legal analysis of the case provides a solid basis to hold that (i)  the act of collecting the harvest concerns reproductive plant material, and also that (ii) the condition regarding the absence of authorization under article 13.3 of the Regulation, is also applicable during the period of provisional protection.