Apple growers get second bite at the cherry

The expression "to take a second bite at the cherry" is a well-known, indeed well-worn one in the English language.  It's also a very strange one, since no-one seems to know where it comes from and, in the case of most cherries, it's quite difficult to get even a single bite out of this diminutive fruit, let alone a second one.  A recent decision of the Court of Justice of the European involves a second bite at the cherry -- though the cherry in question is, anomalously, an apple.  The decision in question is Case C‑534/10 P Brookfield New Zealand Ltd, Elaris SNC v Community Plant Variety Office (CPVO), Schniga GmbH. an appeal under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 November 2010. The ruling itself was delivered on 19 December 2012.

Gala Schnitzer

So what happened in this case? In January 1999 Konsortium Südtiroler Baumschuler (‘KSB’), the legal predecessor of Schniga, applied for a Community plant variety right in respect of the apple variety (Malus Mill) Gala Schnitzer. The CPVO asked the Bundessortenamt (this being the Federal Plant Variety Office, Germany) to carry out the technical examination referred to in Article 55(1) of Regulation 2100/94 (the Community Plant Variety Rights Regulation).  The CPVO also asked KSB to submit both to it and to the Bundessortenamt the plant material necessary for the technical examination, telling KSB that it was responsible for complying with all phytosanitary and customs requirements applicable to the delivery of the material.

KSB submitted the requested material and the CPVO acknowledged receipt -- but said it was not accompanied by a phytosanitary certificate and asked KSB to make sure that this keyl document was provided ‘as soon as possible’. KSB sent a European plant passport to the Bundessortenamt and told it that the authority which had issued the passport – the Plant Protection Service of Bolzano (Italy) – had stated that that document served as a phytosanitary certificate. The Bundessortenamt informed KSB that the material had arrived in due time and said that it was appropriate; it added that the European plant passport was sufficient for the purposes of carrying out the technical examination and determining whether the substantive conditions for the grant of a Community plant variety right had been met. The Bundessortenamt did however request a copy of an official certificate confirming that the material sent was virus-free.

Sadly, it was not possible to do this and, in 2001, KSB told the Bundessortenamt that no such certificate could be sent since the material sent back in March 1999 for the purposes of the technical examination was not virus-free. The Bundessortenamt then told the CPVO that it intended to uproot the infected material iso as to stop the virus spreading to other plants.

In June 2001 the CPVO informed KSB that, in consultation with the Bundessortenamt, it had decided to let KSB provide new, virus-free plant material in order to resume the examination of the application. Could this be done? Yes, said the CPVO: it wasn't KSB's fault but its own, since its instructions regarding the phytosanitary state of the material weren't clear enough -- they didn't specify that the material should be virus-free.

A Baigent

In May 2006 Elaris and Brookfield (the licensee and the holder of the plant variety right relating to the Baigent variety of apple), lodged objections to the grant of a right for the Gala Schnitzer variety with the CPVO, basing their objections on the earlier right in respect of the apple variety (Malus Mill) Baigent. Said Brookfield, Gala Schnitzers weren't sufficiently distinct from their own. What's more, KSB had been given the right to submit new, virus-free plant material when, according to Brookfield, the CPVO should have refused KSB’s initial application. In February 2007 the competent CPVO committee granted a Community plant variety right for the Gala Schnitzer variety, finding that it was sufficiently distinct from the reference variety Baigent. It also dismissed Brookfield’s objections.  The Board of Appeal however annulled the committee's decisions and refused the application for a Community plant variety right for Gala Schnitzer. Article 61(1)(b) of Regulation 2100/94 did not empower the CPVO to authorise KSB to submit new material, since KSB had not complied with the terms of the original request.

Schniga, taking over from KSB, then appealed to the General Court, which reversed the decision of the Board of Appeal and reinstated the Community plant variety right for Gala Schnitzer.   This time it was the turn of Brookfield and Elaris to appeal, which they duly did.  In their appeal they relied on two grounds of appeal.  First, they claimed that, by re-appraising the facts when considering one of the pleas in law that had been raised before it, the General Court exceeded its jurisdiction to review legality. Since the General Court has jurisdiction only to verify that decisions of the Board of Appeal are lawful, that Court exceeded its jurisdiction.  Secondly, they objected that the Court had held that, under Article 55(4) of the Regulation, the CPVO may make a request in an individual case, relating to the submission of documents attesting to health status, that was  distinct from the request for submission of the plant material necessary for the technical examination.

The first ground of appeal was speedily dismissed: said the Court of Justice, in appeals lodged against decisions of the CPVO or of its Boards of Appeal, the General Court enjoys the same jurisdiction to make appraisals -- which is what it did -- and it cannot be claimed that, in doing so, the General Court erred in law.

As for the  second ground of appeal, the General Court held that the CPVO had the right to define conditions which must be met if an application for a Community plant variety right is to be examined, so long as the period within which the applicant for that right must respond to the request made to him in the individual case has not expired. The Court could not be faulted for drawing that conclusion.

What is interesting, says the IPKat, is the Court of Justice's statement of general principle regarding the functioning of the CPVO:

Cherries (not real size ...)

"51 ... the CPVO – as a body of the European Union – is subject to the principle of sound administration, in accordance with which it must examine all the relevant particulars of a case with care and impartiality and gather all the factual and legal information necessary to exercise its discretion. Moreover, it must ... ensure the proper conduct and effectiveness of proceedings which it sets in motion.

52 ... the CPVO is to determine, through general rules or through requests in individual cases, when, where and in what quantities and qualities the material for the technical examination and reference samples are to be submitted.

53 In view of the discretion which the CPVO enjoys, Article 55(4) of Regulation No 2100/94 cannot be interpreted as preventing it from making a separate request for plant material to be examined and for documentary evidence relating to that material. ...".

It is heartening to see that the need for the CPVO -- an IP right-granting office -- to exercise discretion in the name of common sense, is so clearly recognised.  One wonders what greater public good would be served by not allowing the fresh virus-free material to be submitted.

Merpel, who like most cats does not eat apples, wondered whether Gala Schnitzer was a woman's name or the designation of a person who schnitzes at galas.