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4-Patents: European Court of Justice disapproved German licencesystem on plant varieties



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TITLE:  Judgment of the Court in Case C-305/00
SOURCE: European Court of Justice, Press Release No 32/02
        http://europa.eu.int/cj/en/actu/communiques/index.htm
DATE:   Apr 10, 2003

------------------ archive: http://www.gene.ch/genet.html ------------------


Judgment of the Court in Case C-305/00

Christian Schulin and Saatgut-Treuhandverwaltungsgesellschaft mbH

THE HOLDER OF A COMMUNITY PLANT VARIETY RIGHT CAN ASK A FARMER TO PROVIDE
INFORMATION IF THERE IS SOME INDICATION THAT THE FARMER HAS MADE USE OF
THE "AGRICULTURAL EXEMPTION"

The fact of having bought seed from the holder must be held to be such an
indication.

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.

Decision:
http://europa.eu.int/jurisp/cgi-bin/f
orm.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=C-
305%2F00&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100