Protection of plant varieties and farm seeds: the CJEU intervenes

Protection of plant varieties and farm seeds: the ECJ intervenes

The introductory photo of the site of the SICASOV – very nice formula

The plant variety protection system (plant varieties) of the European Union (regulation 2100/94) provides for a three-tier mechanism for the production (reproduction or multiplication) of seeds and plants of a protected variety:

  1. Any production (other than for non-commercial purposes in a private setting) is subject to the authorization of the holder of the right (breeder) – which implies in particular the payment of a royalty;

  2. Farmers are allowed to produce their own seed (farm seed) in the case of two dozen species (the most agriculturally important autogamous), on payment of a ” equitable remuneration, which must be significantly lower than the amount received for the licensed production of propagating material of the same variety in the same region » ;

  3. THE ” small farmers » are exempted from the payment of this remuneration.

Failure to observe these provisions entails the risk of being sued for infringement. The regulation – very eloquent, since it is European – provides in particular:

« Any person who acts deliberately or negligently is also required to compensate the damage suffered by the holder. In the event of slight fault, the holder’s right to compensation may be reduced accordingly, without however being less than the advantage acquired by the author of the infringement as a result of this infringement. »

And, of course, this provision is subject to a implementing regulation (n° 1768/95). In its relevant part here (article 18), it provides:

« 2. If, repeatedly and intentionally, [un producteur de semences de ferme] did not fulfill its obligation [de payer une rémunération]compensation for the damage suffered by the holder, […] will represent at least a lump sum which will be calculated on the basis of four times the average amount received for the production under license of propagating material of protected varieties of the plant species concerned in the same region, without prejudice to compensation for any other damage most important. »

A German farmer was caught in the nets of the Saatgut-Treuhandverwaltungs GmbHanalogous to the French SICASOVa group of breeders charged by its members with defending their rights and, in particular, with presenting requests for information and requests for payment in its own name.

And the case went to the Court of Justice of the European Union on the basis of a preliminary question (stop – affaire C-522/21, Saatgut-Treuhandverwaltung (KWS Meridian)).

here is the Press releasewhich has the merit of clarity:

« Protection of plant varieties: no fixing of a minimum lump sum compensation

The provision providing for a minimum lump sum calculated on the basis of four times the license fee as compensation for repeated and intentional infringement is invalid

STV is a group of holders of protected plant varieties, charged by its members to defend their rights and, in particular, to submit in its own name requests for information as well as requests for payment.

He is asking the German courts for damages from a farmer who, without authorisation, cultivated a protected plant variety, KWS Meridian winter barley.

The court hearing the case has doubts as to the validity of a provision contained in an implementing regulation adopted by the Commission. This provides that the holder may claim, in the event of repeated and intentional violation, a minimum lump sum calculated on the basis of four times the license fee 1 . It then questioned the Court of Justice in this regard.

In its judgment delivered on March 16, 2023, the Court found that the contested provision is invalid.

This provision sets a minimum lump sum calculated by reference to the average amount of the license feewhile the amount of the latter cannot in itself serve as a basis for the assessment of the harm since it does not present not necessarily link with the latter.

In addition, the establishment of a minimum lump sum for compensation for the damage suffered by the holder is contrary to duty of the last to prove the extent of the damage suffered. Indeed, the provision is content to presuppose proof of the existence of a repeated and intentional infringement of the holder’s rights.

Furthermore, this provision is contrary to the prohibition of a punitive sentence provided for by Union law. However, by setting the level of compensation at a minimum lump sum calculated on the basis of four times the average amount of the license fee, it is likely to lead to the award of damages of a punitive nature.

Finally, she impermissibly limits the judge’s discretion seized, by establishing an irrebuttable presumption as to the minimum extent of the damage suffered by the holder.

For these reasons, the Court finds that the Commission exceeded the limits of its implementing powers.

_____________

1 Article 18(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 laying down detailed rules for the application of the derogation provided for in Article 14(3) of Regulation (EC) No ° 2100/94 of the Council establishing a Community plant variety right system (OJ 1995, L 173, p. 14), as amended by Regulation (EC) Noo 2605/98 of the Commission, of 3 December 1998 (OJ 1998, L 328, p. 6).

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