A 1994 regulation established a single exclusive system of Community plant variety rights
A person who bred or discovered and developed a variety is entitled to
a Community plant variety right. The regulation provides for a derogation from the
general principle of protection of the holder's rights, known as the "agricultural exemption".
Farmers can use, on their holding, the product of the harvest of a
protected variety without obtaining the authorisation of the holder. That exception was adopted
on the basis of the public interest in safeguarding agricultural production.
A 1995 regulation established the conditions to give effect to the derogation and
provided that farmers who made use of that possibility were to pay remuneration
to the holder of the right. That regulation also imposes an obligation on
farmers to provide the holder with certain information.
Mr Schulin, a German farmer, refused to provide information to Saatgut-Treuhandverwaltungsgesellschaft mbH (a
German seed company engaged in trust management authorised by holders to assert their
rights to remuneration) and to let it know whether he had made use
of the agricultural exemption in the 1997/1998 marketing year.
He was ordered by the Landgericht Frankfurt am Main to provide the information
requested. In the course of the appeal to the Oberlandesgericht Frankfurt am Main,
that court asked the Court of Justice whether the holder of a Community
protected plant variety right can request information from any farmer with a view
to claiming payment of the remuneration due for use of the exemption even
where there is no indication that he has used that variety on his
holding.
The Court of Justice held, first, that it is clear from the relevant
provisions of the 1994 regulation and their structure that they do not refer
to any farmer. It also held that to interpret that regulation as meaning
that all farmers, simply by belonging to that profession, even those who have
never planted propagating material of a protected plant variety, must on request supply
holders with all relevant information is not proportionate with the objective of safeguarding
the legitimate interests of both breeders and farmers.
However, given, on the one hand, the difficulty the holder has in asserting
his right to information, (in practice, examination of a plant does not reveal
whether it was obtained by the use of the product of the harvest
or by the purchase of seed), and, on the other hand, the obligation
to safeguard the legitimate interests of both the breeder and the farmer, the
holder must be authorised to request information from a farmer where he has
some indication that the latter has relied or will rely on the "agricultural
exemption".
The Court has held that the fact of having bought seed from the
holder must be considered to be such an indication.
Available in French, English, German, Spanish, Dutch and Italian. For the full text of the Judgment, consult our Internet page www.curia.eu.int at approximately 3 pm today. For further information, contact Christopher Fretwell phone: (352) 4303 3355 fax: (352) 4303 2034 |