Judgment of the Court (First Chamber) of 14 October 2004.Saatgut

Arrêt de la Cour

Case C-336/02

Saatgut-Treuhandverwaltungsgesellschaft mbH

v

Brangewitz GmbH

(Reference for a preliminary ruling from the Landgericht Düsseldorf)

(Plant varieties – System of protection – Article 14(3) of Regulation (EC) No 2100/94 and Article 9 of Regulation (EC) No 1768/95 – Use by farmers of the product of the harvest – Suppliers of processing services – Obligation to provide information to the holder of the Community right)

Summary of the Judgment

Agriculture – Uniform legislation – Protection of plant varieties – Article 14(3) of Regulation No 2100/94 and Article 9 of Regulation No 1768/95 – Possibility for the holder of a Community right to request information where there is some indication that a supplier of processing services is processing the protected product

(Council Regulation No 2100/94, Art. 14(2) and (3); Council Regulation No 1768/95, Art. 9)

The sixth indent of Article 14(3) of Regulation No 2100/94 on Community plant variety rights in conjunction with Article 9 of Regulation No 1768/95 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 allows the holder of a Community plant variety right to request a supplier of processing services to provide the relevant information which he has obtained through ordinary performance of his tasks, without additional burden or costs, where the holder has some indication that the latter has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety belonging to the holder, other than a hybrid or synthetic variety, which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94, for planting.

In such a case, the processor is required to provide the holder with the relevant information relating not only to the farmers for whom the holder has some indication that the processor has provided or intends to provide such services but also to all other farmers for whom he has processed or intends to process the product of the harvest obtained by planting propagating material of the variety concerned, where that variety has been declared or is otherwise known to him.

(see paras 54, 66, operative part 1-2)

JUDGMENT OF THE COURT (First Chamber)
14 October 2004(1)

(Plant varieties – System of protection – Article 14(3) of Regulation (EC) No 2100/94 and Article 9 of Regulation (EC) No 1768/95 – Use by farmers of the product of the harvest – Suppliers of processing services – Obligation to provide information to the holder of the Community right)

In Case C-336/02REFERENCE for a preliminary ruling under Article 234 ECfrom the Landgericht Düsseldorf (Germany), made by decision of 8 August 2002, received at the Court on 23 September 2002, in the proceedings

Saatgut-Treuhandverwaltungsgesellschaft mbH

v

Brangewitz GmbH,

THE COURT (First Chamber),,

composed of: P. Jann, President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and S. von Bahr (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: M. Múgica Arzamendi, Principal Administrator,

having regard to the written procedure and further to the hearing on 8 January 2004,after considering the observations submitted on behalf of:

– Saatgut-Treuhandverwaltungsgesellschaft mbH, by K. von Gierke, Rechtsanwalt,

– Brangewitz GmbH, by M. Miersch, Rechtsanwalt, assisted by R. Wilhems, Patentanwalt, and M. Timmermann, Rechtsanwalt,

– the German Government, by W.-D. Plessing and A. Tiemann, acting as Agents,

– the Netherlands Government, by S. Terstal, acting as Agent,

– the Commission of the European Communities, by G. Braun, acting as Agent, assisted by R. Bierwagen, Rechtsanwalt,

after hearing the Opinion of the Advocate General at the sitting on 17 February 2004,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of the sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) and Article 9 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 (OJ 1995 L 173, p. 14).

2 The reference was made in the course of proceedings between Saatgut-Treuhandverwaltungsgesellschaft mbH (‘STV’) and Brangewitz GmbH (‘Brangewitz’) concerning the information which Brangewitz, as a supplier of processing services, is required to provide on request to STV relating to the operations it effected on the product of the harvest of plant varieties protected by Regulation No 2100/94 and/or by national legislation.

Legal background

Community legislation

3 Article 1 of Regulation No 2100/94 states that it establishes a system of Community plant variety rights as the sole and exclusive form of Community industrial property rights for plant varieties.

4 Under Article 11(1) of that regulation, the person, described as ‘the breeder’, who is entitled to the Community plant variety right is the one who ‘bred, or discovered and developed the variety, or his successor in title’.

5 Under Article 13(1) and (2) of the regulation:

‘1.     A Community plant variety right shall have the effect that the holder or holders of the Community plant variety right, hereinafter referred to as “the holder”, shall be entitled to effect the acts set out in paragraph 2.

2.       Without prejudice to the provisions of Articles 15 and 16, the following acts in respect of variety constituents, or harvested material of the protected variety, both referred to hereinafter as “material”, shall require the authorisation of the holder:

(a) production or reproduction (multiplication);

(b) conditioning for the purpose of propagation;

(c) offering for sale;

(d) selling or other marketing;

(e) exporting from the Community;

(f) importing to the Community;

(g) stocking for any of the purposes mentioned in (a) to (f).

The holder may make his authorisation subject to conditions and limitations.’

6 However, Article 14(1) of Regulation No 2100/94 provides:

‘Notwithstanding Article 13(2), and for the purposes of safeguarding agricultural production, farmers are authorised to use for propagating purposes in the field, on their own holding the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety, which is covered by a Community plant variety right.’

7 Article 14(2) of that regulation specifies that that authorisation, known as the ‘agricultural exemption’, applies only to the agricultural plant species listed there. Those species are divided into four categories: fodder plants, cereals, potatoes, and oil and fibre plants.

8 Under Article 14(3) of that regulation, ‘[c]onditions to give effect to the derogation provided for in paragraph 1 and to safeguard the legitimate interests of the breeder and of the farmer, shall be established, before the entry into force of this Regulation, in implementing rules pursuant to Article 114, on the basis of [certain] criteria’. Those criteria include the absence of quantitative restrictions of the level of the farmer’s holding, the farmer’s right himself or through services supplied to him to process the product of the harvest for planting, the obligation of farmers other than small farmers to pay an equitable remuneration to the holder which is to be sensibly lower than the amount charged for the licensed production of propagating material of the same variety in the same area, and the exclusive responsibility of holders for monitoring compliance with Article 14.

9 The sixth indent of Article 14(3) of Regulation No 2100/94 also provides, as one of those criteria, for an obligation of farmers and suppliers of processing services to provide information, as follows:

‘[R]elevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services; relevant information may equally be provided by official bodies involved in the monitoring of agricultural production, if such information has been obtained through ordinary performance of their tasks, without additional burden or costs. These provisions are without prejudice, in respect of personal data, to Community and national legislation on the protection of individuals with regard to the processing and free movement of personal data.’

10 According to the 17th and 18th recitals in the preamble to Regulation No 2100/94, ‘the exercise of Community plant variety rights must be subjected to restrictions laid down in provisions adopted in the public interest’, ‘this includes safeguarding agricultural production’, and ‘that purpose requires an authorisation for farmers to use the product of the harvest for propagation under certain conditions’.

11 Article 1 of Regulation No 1768/95 states that that regulation establishes the implementing rules on the conditions to give effect to the derogation provided for in Article 14(1) of Regulation No 2100/94.

12 Article 2 of Regulation No 1768/95 provides:

‘1.     The conditions referred to in Article 1 shall be implemented both by the holder, representing the breeder, and by the farmer in such a way as to safeguard the legitimate interests of each other.

2.       The legitimate interests shall not be considered to be safeguarded if one or more of these interests are adversely affected without account being taken of the need to maintain a reasonable balance between all of them, or of the need for proportionality between the purpose of the relevant condition and the actual effect of the implementation thereof.’

13 Article 9(1) and (2) of that regulation prescribes:

‘1.     The details of the relevant information to be provided by the processor to the holder pursuant to Article 14(3), sixth indent of the basic Regulation may form the object of a contract between the holder and the processor concerned.

2.       Where such contract has not been concluded or does not apply, the processor shall, without prejudice to information requirements under other Community legislation or under legislation of Member States, on request of the holder, be required to provide a statement of relevant information to the holder. The following items shall be considered to be relevant:

(a) the name of the processor, the place of his domicile and the name and address registered for his business;

(b) the fact whether the processor has supplied a service of processing the product of the harvest belonging to one or more varieties of the holder for planting, where the variety or varieties were declared or otherwise known to the processor;

(c) if the processor has supplied such service, the amount of the product of the harvest belonging to the variety or varieties concerned, which has been processed for planting, by the processor, and the total amount resulting from that processing;

(d) the dates and places of the processing referred to in (c); and

(e) the name and address of the person or persons to whom he has supplied the service of processing referred to in (c), and the respective amounts.’

National legislation

14 Paragraph 10a(6) of the Sortenschutzgesetz 1985 (1985 Law on the protection of plant varieties) in the version of 25 July 1997 (BGBl. 1997 I, p. 3165), which lays down an obligation to provide information concerning plant varieties protected under German law, provides:

‘Farmers who make use of the possibility of planting harvested material and suppliers of processing services acting under their instructions are required to inform holders of plant variety rights of the extent of the planting’.

The main proceedings and the questions referred for a preliminary ruling

15 The national court states that STV is an organisation of holders of plant variety rights.

16 STV sent Brangewitz requests for information, for the trading years 1997/1998 to 1999/2000, concerning the processing operations it was said to have effected on the product of the harvest of some 500 plant varieties, some of which were protected by Regulation No 2100/94 and the others by national legislation, with a view to planting.

17 Not having received the information requested, STV brought proceedings against Brangewitz in the Landgericht Düsseldorf (Regional Court, Düsseldorf).

18 The order for reference states that STV produced in support of its application a large number of statements by customers of Brangewitz that they had planted the product of the harvest, as well as ‘invoices’ and ‘delivery notes’ issued by Brangewitz. In the invoices, the cleaning, sorting and disinfecting were reckoned according to the quantity of each kind of cereal mentioned. Some of the invoices also contained information on the plant varieties treated.

19 According to the national court, STV claims that it is apparent from those statements of planting the product of the harvest, invoices and delivery notes that Bringewitz processed, for planting, seed of the product of the harvest of at least 71 plant varieties which are protected in favour of holders or exclusive licensees who have mandated STV to enforce their rights. It follows that Brangewitz is obliged to provide information on the processing operations it effected on the seeds from the product of the harvest for planting.

20 Brangewitz submits that STV does not have a general right to information.

21 The national court observes that STV’s submissions show that during the trading years 1997/1998 to 1999/2000 Brangewitz operated as a supplier of processing services for at least 71 protected plant varieties. Those submissions do not, however, show that Brangewitz processed all the plant varieties in respect of which STV asked for information.

22 However, according to the national court, STV submits that, by virtue of the provisions of the sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95, it is not necessary for its submissions to show that Brangewitz processed all the plant varieties in respect of which the information was sought.

23 In this respect, first, the national court, referring to the Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-305/00 Schulin [2003] ECR I-3525, considers it possible that the supplier of processing services should be regarded as obliged to provide information only if there is some indication that he has processed the protected plant varieties in question.

24 Second, if only the suppliers of processing services who have processed propagating material of a protected plant variety are obliged to inform the holder as to the processing of the product of the harvest of that variety for planting, the national court is uncertain as to whether that obligation to provide information extends to all farmers for whom the supplier of processing services has processed the variety in question, rather than solely to the farmers who are known to the holder and in respect of whom the holder has shown that they had the protected varieties processed by the supplier of processing services.

25 In those circumstances, the Landgericht Düsseldorf decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘1. Are [the sixth indent of Article 14(3) of Regulation No 2100/94 and Article 9 of Regulation No 1768/95] to be interpreted as meaning that the holder of a variety protected under Regulation No 2100/94 can request the supplier of processing services … to provide the information specified in those provisions, regardless of whether there is any indication that the supplier of processing services … has processed the protected variety concerned?

2. If there have to be indications of the facts in Question 1: Must the supplier of processing services … provide information pursuant to the sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 with regard to all the farmers … for whom he has processed the protected variety concerned, or only with regard to those farmers in respect of whom the holder has some indication that the supplier of processing services … has processed the protected variety concerned?’

The first question

26 By its first question, the national court asks essentially whether the sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 must be interpreted as allowing the holder of a Community plant variety right to request a supplier of processing services to provide the information specified in those provisions where the holder has no indication that the latter has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety belonging to the holder, other than a hybrid or synthetic variety, which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94.

Observations submitted to the Court

27 STV and the German Government submit that holders enjoy, as against suppliers of processing services, an extensive right to information as regards their plant varieties. In support of that submission, they rely on the wording and scheme of the provisions of the sixth indent of Article 14(3) of Regulation No 2100/94 and Article 9 of Regulation No 1768/95, and on their object and purpose and the principle of proportionality.

28 According to STV and the German Government, it is apparent from the wording and scheme of Regulations No 2100/94 and No 1768/95 that the supplier of processing services is obliged to provide information on his processing of seeds from the product of the harvest for planting, on the sole condition that the holder asks him for the information.

29 As regards the interpretation of the provisions at issue, STV submits that the duty of the supplier of processing services to provide information has the object and purpose of monitoring the information supplied by farmers. If the holder’s right to information as against the supplier of processing services were limited to farmers who have acquired propagating material, it would not be possible to monitor a farmer who does not state whether he has planted the product of the harvest or has had seed from the harvest processed, or if so, by what undertaking.

30 As regards the purpose of the provisions at issue, the German Government observes that the right to information enjoyed by the holder as against the supplier of processing services is not a right that is ancillary to a right to remuneration but the sole and original legal relationship between the holder and the supplier. If that right to information of the holder depended on his producing evidence of specific processing operations effected on protected plant varieties belonging to him, the sole object of that right would be to confirm information which was already known, and it would not be an autonomous right to information as against the supplier of processing services.

31 As to the principle of proportionality, STV observes that, as a result of the possibility allowed by Regulation No 2100/94 of processing, without authorisation, seed from the harvest obtained by planting protected plant varieties, the services supplied by suppliers of processing services constitute a remunerative activity from which substantial profits may be made. The request for information does not involve special costs or disproportionate expense for the suppliers. The holders, on the other hand, are in a much weaker position, since without obtaining the remuneration for licences and for planting the product of the harvest, they cannot pursue their activity.

32 Brangewitz takes the view that it is disproportionate to take into consideration only the status of supplier of processing services. It submits that the supplier is under a duty to provide information only if the holder shows that his protected variety has been processed in that supplier’s business. If it were otherwise, every supplier of processing operations could find himself receiving a limitless number of requests for information from the various holders.

33 The Netherlands Government submits that the general principle underlying Regulation No 2100/94 is to achieve a balance between the legitimate interests of the farmer and the supplier of processing services on the one hand and those of the holder on the other. It concludes that the holder should be able to obtain information from the farmer or processor where he has some indication that propagating material of a protected variety has been used or processed.

34 The Commission observes that suppliers of processing services do not come into contact with the holder either as purchasers of seeds or as persons liable to pay remuneration. They carry on their activity as suppliers of services within the meaning of the regulations in question only in relation to the farmers. In that sense, the group of suppliers of processing services referred to in the sixth indent of Article 14(3) of Regulation No 2100/94 should not be more extensive than the group of farmers referred to in that provision for which they carry on their activities.

35 The Commission submits that it is apparent from the sixth indent of Article 14(3) of Regulation No 2100/94 and Article 9(2) of Regulation No 1768/95, in particular indent (b) of the latter provision, that suppliers of processing services are obliged to provide information only if they have processed protected plant varieties and know or may know this. It is therefore for the person who wishes to obtain information to show that there are real indications that the processor in question has supplied such services with a view to processing protected seed.

Findings of the Court

36 It should be recalled, as a preliminary point, that under Article 13(2) of Regulation No 2100/94 the authorisation of the holder of the Community plant variety right is required, in respect of variety constituents or harvested material of the protected variety, inter alia for production or reproduction (multiplication) and conditioning for the purpose of propagation.

37 The provisions of Article 14 of that regulation, which, as is clear from the 17th and 18th recitals in its preamble, were adopted on the basis of the public interest in safeguarding agricultural production, constitute an exception to that rule (see Schulin, paragraph 47).

38 Article 14(1) of that regulation authorises farmers to use for propagating purposes in the field, on their own holding the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety which is covered by a Community plant variety right in respect of one of the plant species listed in Article 14(2) (‘variety subject to the privilege’).

39 Article 14(3) of Regulation No 2100/94 states that the conditions to give effect to the derogation provided for in Article 14(1) and to safeguard the legitimate interests of the breeder and of the farmer are to be established in implementing rules on the basis of a number of criteria. Among those criteria, the fourth indent of Article 14(3) provides that, apart from small farmers, ‘other farmers shall be required to pay an equitable remuneration to the holder’, and the sixth indent provides that ‘relevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services’.

40 Contrary to STV’s claims, it is clear from the scheme of Article 14 of Regulation No 2100/94, entitled ‘Derogation from Community plant variety right’, and from the wording of Article 14(3) that the sixth indent of that paragraph does not refer to all suppliers of processing services.

41 Article 14(3) of Regulation No 2100/94, which moreover provides expressly that the conditions to give effect to the derogation provided for in paragraph 1 of that article are to be established in implementing rules, must be interpreted in the light of that paragraph 1 and cannot therefore refer to cases in which that derogation is not even capable of applying (see Schulin, paragraph 52).

42 It is clear, first, from Article 14(2) of Regulation No 2100/94 that that derogation applies only to the agricultural plant species expressly listed there. It follows that, as the Advocate General observes in paragraph 29 of his Opinion, only suppliers of processing services who have processed the product of the harvest obtained by planting plants listed in Article 14(2) are affected by the derogation, since those species are the only ones to which it applies.

43 It should be recalled, second, that under Article 14(1) of Regulation No 2100/94 the right of farmers, without the prior authorisation of the holder, to plant the product of the harvest obtained by planting propagating material of a variety subject to the privilege has as a corollary their obligation to provide, on request of that holder, the relevant information and, with the exception of small farmers, to pay him an equitable remuneration. The reciprocal legitimate interests of farmers and holders in their direct relations are thus preserved.

44 As regards suppliers of processing operations, on the other hand, the second indent of Article 14(3) of Regulation No 2100/94 specifies that the product of the harvest may be processed for planting ‘either by the farmer himself or through services supplied to him’. It is consequently the farmers who decide whether to have recourse to the services of a supplier of processing services or to process the product of the harvest themselves. The right of the supplier of processing services to provide such services is in fact derived from the farmer’s right, under Article 14(1), to plant the product of the harvest obtained by planting a variety covered by Community protection, without prior authorisation from the holder.

45 Consequently, the obligation of a supplier of processing services to provide information to the holder likewise depends on the use by a farmer of the derogation laid down in Article 14(1) of Regulation No 2100/94 and his decision to have recourse to that supplier’s services for processing the product of the harvest.

46 It follows that the holder’s right to request a supplier of processing services to provide the relevant information depends in principle on the supplier having processed the product of the harvest on behalf of a farmer making use or being about to make use for his benefit of the derogation laid down in Article 14(1) of Regulation No 2100/94, or in other words on that supplier having processed the product of the harvest obtained by farmers by planting propagating material of a variety subject to the privilege, with a view to planting.

47 In this respect, it is not relevant, as STV and the German Government maintain, whether the suppliers of processing services, in their own business interests, process, for planting, the seeds of the product of the harvest of all the varieties delivered to them by farmers, including no doubt seeds of varieties covered by Community plant variety rights, by contrast with farmers who, on the basis in particular of the geographical location of their land, the climatic conditions and sales possibilities, make a deliberate selection of varieties and choose whether or not to use the product of the harvest.

48 As regards the interpretation of Article 9(2) of Regulation No 1768/95, it suffices to note that, given that that regulation is an implementing regulation laying down conditions to give effect to the derogation provided for in Article 14(1) of Regulation No 2100/94, its provisions cannot in any event impose more extensive obligations on suppliers of processing services than those under Regulation No 2100/94 (see, with respect to farmers, Schulin, paragraph 60).

49 Moreover, Article 9(1) of Regulation No 1768/95 provides that the details of the information to be provided by the supplier of processing services to the holder under the sixth indent of Article 14(3) of Regulation No 2100/94 may form the object of a contract between ‘the holder and the processor concerned’. The first sentence of Article 9(2), which provides that, where such a contract has not been concluded or does not apply, the ‘processor’ is, at the request of the ‘holder’, to be required to provide him with a statement of relevant information, must be regarded as referring, like Article 9(1), only to the holder and the processor concerned (see, with respect to farmers, Schulin, paragraph 61).

50 Article 9(2)(b) of Regulation No 1768/95, which states that the supplier of processing services is required to inform the holder, on request, whether he has supplied a service of processing the product of the harvest belonging to one or more varieties of the holder for planting, ‘where the variety or varieties were declared or otherwise known to the processor’, is based on the same conception. That provision, by definition, can only refer to processors who have carried out such processing on the product of the harvest obtained by planting a variety belonging to the holder which is covered by a Community right.

51 It follows from all the foregoing that Article 14(3) of Regulation No 2100/94 and Article 9(2) of Regulation No 1768/95 cannot be interpreted as authorising holders to require every supplier of processing services to provide on request all relevant information.

52 However, it is apparent from Article 14(3) of Regulation No  2100/94, in particular the second and sixth indents, that the obligation of the supplier of processing services to provide the holder with information has as its objective to enable the holder to ascertain whether farmers have taken advantage of the derogation referred to in Article 14(1) as regards one of his varieties covered by Community protection, and if so in what quantities, with a view in particular to the correct determination of the remuneration due, and that that obligation is based on the fact that the supplier of processing operations assists the farmer in the latter’s exercise of the right he enjoys under Article 14(1) of Regulation No 2100/94.

53 Accordingly, given, on the one hand, the difficulty the holder has in asserting his right to information as against farmers, by reason of the fact that 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 reciprocal legitimate interests of the breeder and the farmer which follows from Article 14(3) of Regulation No 2100/94 and Article 2 of Regulation No 1768/95 (see Schulin, paragraph 63), the holder must be authorised to request information concerning one of his varieties subject to the privilege from a supplier of processing services where he has some indication that the latter has processed or intends to process the product of the harvest obtained by planting propagating material of that variety for planting. It should be pointed out that that right of the holder does not depend on whether the varieties concerned were declared or otherwise known to the supplier of processing services.

54 It follows from the foregoing that the answer to the first question must be that the sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 cannot be interpreted as allowing the holder of a Community plant variety right to request a supplier of processing services to provide the information specified in those provisions where the holder has no indication that the latter has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety of the holder subject to the privilege for planting.

The second question

55 By its second question, the national court asks essentially whether, where the holder has some indication that a supplier of processing services has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety of the holder subject to the privilege, the sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 must be interpreted as obliging the processor concerned to provide information relating to all the farmers for whom he has processed the variety in question, or only information relating to the farmers in respect of whom the holder has some indication that the processor has processed his protected variety for them.

Observations submitted to the Court

56 Brangewitz submits that, since the holder has sufficient possibilities of asserting his rights as against farmers who use his protected varieties, a request for information to the supplier of processing operations can serve only to check the accuracy and completeness of the information relating to a farmer.

57 If they were authorised to question the suppliers of processing services, holders would obtain information relating to farmers which the farmers themselves are not required to provide in the context of a general request for information and which, in accordance with Article 8(5) and (6) of Regulation No 1768/95, should be communicated to the holders by third parties only if they have been authorised to do so by the farmers.

58 STV, the German Government and the Commission take the view that a supplier of processing services who processes seed of a protected variety is obliged to provide the holder with information as regards all the farmers who have commissioned him to process that variety, not only those who are already known to the holder.

59 The Netherlands Government submits that the obligation of the supplier of processing services to provide information should extend to all farmers in respect of whom the holder of the protected variety has some indication that they have had seed of that variety processed by the supplier of processing services.

Findings of the Court

60 It should be recalled that, as follows from paragraph 46 above, the holder’s right to request a supplier of processing services to provide the relevant information depends in principle on the supplier having processed the product of the harvest obtained by farmers by planting propagating material of a variety of the holder subject to the privilege for planting.

61 If, therefore, as the Court found in paragraph 53 above, the holder is entitled to request information concerning one of his varieties subject to the privilege from a supplier of processing services where he has some indication that the latter has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of that variety for planting, it must in principle follow that, if that is the case, the processor is obliged to provide him with the relevant information concerning all the farmers for whom he has provided such services relating to the variety concerned.

62 As the Commission observed, while the obligation of the supplier of processing services to provide information depends on the use by a farmer of the derogation laid down in Article 14(1) of Regulation No 2100/94 and his decision to have recourse to the services of the processor, it is linked to the plant varieties which he has processed, not to his customer the farmer.

63 That interpretation is supported by Article 9(2)(b) of Regulation No 1768/95, under which the supplier of processing services is required to provide a statement of relevant information to the holder, at the latter’s request, and that information is to include whether he has processed the product of the harvest belonging to one or more varieties of the holder for planting, the amount of the product of the harvest belonging to the variety or varieties concerned which he has processed, the dates and places of the processing, and the name and address of the person or persons for whom he has supplied the processing services. Such a statement is necessary where the holder has only an indication of the fact that the supplier of processing services has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety of the holder for planting (see, to that effect, with respect to the obligation of farmers to provide information, Schulin, paragraph 64).

64 However, Regulation No 2100/94 does not impose on suppliers of processing services an obligation to find out what variety the seeds which they have processed belong to. Consequently, as regards farmers in respect of whom the holder does not have any indication that the processor has processed or intends to process the variety in question for them, the processor’s obligation to provide the relevant information to the holder applies only in the cases in which the variety was declared or otherwise known to the processor, as follows from Article 9(2)(b) of Regulation No 1768/95.

65 It follows that, once the holder has an indication that the supplier of processing services has processed or intends to process the product of the harvest obtained by the farmer by planting propagating material of a variety of the holder for planting, the supplier of processing services is required to provide him with the relevant information relating not only to the farmers for whom the holder has some indication that the processor has provided or intends to provide such services but also to all other farmers for whom he has provided or intends to provide them, where the variety in question has been declared or is otherwise known to him.

66 The answer to the second question must therefore be that the sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 must be interpreted as meaning that, where the holder has some indication that the supplier of processing services has processed or intends to process the product of the harvest obtained by the farmer by planting propagating material of a variety of the holder subject to the privilege for planting, the processor is required to provide him with the relevant information relating not only to the farmers for whom the holder has some indication that the processor has provided or intends to provide such services but also to all other farmers for whom he has processed or intends to process the product of the harvest obtained by planting propagating material of the variety concerned, where that variety has been declared or is otherwise known to him.

Costs

67 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

1. The sixth indent of Article 14(3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights in conjunction with Article 9 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 cannot be interpreted as allowing the holder of a Community plant variety right to request a supplier of processing services to provide the information specified in those provisions where the holder has no indication that the latter has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety belonging to the holder, other than a hybrid or synthetic variety, which is covered by that right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94, for planting.

2. The sixth indent of Article 14(3) of Regulation No 2100/94 in conjunction with Article 9 of Regulation No 1768/95 must be interpreted as meaning that, where the holder has some indication that the supplier of processing services has processed or intends to process the product of the harvest obtained by farmers by planting propagating material of a variety belonging to the holder, other than a hybrid or synthetic variety, which is covered by a Community plant variety right and belongs to one of the agricultural plant species listed in Article 14(2) of Regulation No 2100/94, for planting, the processor is required to provide him with the relevant information relating not only to the farmers for whom the holder has some indication that the processor has provided or intends to provide such services but also to all other farmers for whom he has processed or intends to process the product of the harvest obtained by planting propagating material of the variety concerned, where that variety has been declared or is otherwise known to him.

Signatures.

1 – Language of the case: German. Top

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