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The Board of Appeal of the CPVO

Contents

Legal basis

In accordance with Article 67 of Council Regulation (EC) n° 2100/94, an Appeal shall lie against the  decisions of the Office relating to the following :
  • Nullification/cancellation of a Community Plant Variety Right (Articles 20 and 21)
  • Compulsory exploitation rights (Articles 29 and 100(2))
  • Objections (Article 59)
  • Refusal/grant of a CPVR (Articles 61 and 62)
  • Acceptability/amendment of variety denominations (Articles 63 and 66)
  • Fees (Article 83)
  • Apportionment of costs (Article 85)
  • Maintenance/inspection of Registers (Articles 87 and 88)

A direct action may be brought before the European Court of Justice against decisions on compulsory exploitation rights.

The appellant may be the addressee of the decision or someone directly and individually concerned. The parties to proceedings are entitled to participate and the Office is obliged to do so (Article 68).

An Appeal has suspensory effect in relation to the decision unless the Office decides otherwise (Article 67(2) of Council Regulation (EC) n° 2100/94).

Composition of the Board of Appeal

Presidency

Council Decision of 17 December 2007 appointed the Chairman of the Board of Appeal of the Community Plant Variety Office and his alternate.

Chairman of the Board of Appeal : M. Paul VAN DER KOOIJ

Alternate to the chairman of the Board of Appeal : M. Timothy MILLETT

Terms of office : 5 years from the date on which they took up their duties.

Qualified member

In accordance with Article 47(2) of Council Regulation (EC) n° 2100/94 on Community plant variety rights, the Administrative Council of the CPVO, during its 14th and 15th March session, adopted following list of qualified members for a period of five years from 23rd February 2006.

 

1. ANDERSEN, Preben Veilstrup
2. BALZANELLI, Sergio
3. BARENDRECHT, Cornelis Joost
4. BESLIER, Stéphane
5. BIANCHI, Pier Giacomo
6. BIANCHI, Richard
7. BLOUET, Françoise
8. BONNE, Sophia
9. BORRINI, Stefano
10. BOULD, Aubrey
11. BRA, Maria
12. BRAND, Richard
13. CALVACHE QUESADA, David
14. CHANZÁ JORDÁN, Dionisio
15. CHARTIER, Philippe
16. CSURÖS, Zoltán
17. DEL RIO PASCUAL, Amparo
18. GRESTA, Fabio
19. GUIARD, Joël
20. GUISSART, Alain
21. KÖLLER, Michael
22. KRALIK, Andrej
23. LAURENS, François
24. LÓPEZ-ARANDA, José Manuel
25. MARGELLOS, Théophile M.
26. MENNE, Andrea
27. MIJS, Jan Willem
28. MILLETT, Timothy

29. OLIVIUSSON, Peter
30. PATACHO, Rosa Hermelinda Vieira Martins
31. PAUSE, Christof Frank
32. PERRACINO, Mauro
33. PETIT-PIGEARD, Roland
34. PINHEIRO DE CARVALHO, Miguel Ângelo Almeida
35. REHEUL, Dirk
36. RIECHENBERG, Kurt
37. ROBERTS, Timothy Wace
38. ROSA-PEREZ, José-Manuel
39. ROYON, René
40. RÜCKER, Beate
41. RUSSO, Pietro
42. SANTANGELO, Enrico
43. SCOTT, Elizabeth
44. SIBONI, Eugenio
45. TURRISI, Rosario Ennio
46. ULLRICH, Hanns
47. VAN DER KOOIJ, Paul A.C.E
48. VAN MARREWIJK, Nico P.A.
49. VAN OVERWALLE, Geertrui
50. VEIGA DA CRUZ DE SOUSA, Pedro António
51. WIESNER, Ivo

Guidance notes

1.  Notice of Appeal
A Notice of Appeal must be lodged in writing at the Office within two months of the service (where appellant is the addressee) or publication of the decision (Article 69 of Council Regulation (EC) n° 2100/94).

Contents of the Notice of Appeal – 

  • Designation of appellant as a party to Appeal proceedings
  • File number of the decision against which the Appeal is lodged
  • Statement as to what is sought (ie; amendment/quashing of the decision)


A Written Statement setting out the grounds of Appeal must be filed within four months of service/publication.

On receipt of the Notice of Appeal, the Secretariat of the Board of Appeal will send a standard form asking for grounds of Appeal and to be signed by appellant together with an invoice of 500 Euros (1/3 of the Appeal fee).

2.  Before remittal
If the Office does not rectify its decision within one month of receipt of the Written Statement it forthwith remits the Appeal to the Board of Appeal and decides whether to prevent suspensory effect.

3.  Examination of case on Appeal
Once remitted to the Board of Appeal , composed of a Chairman and two members (rapporteur and an other member), the Appeal will be examined and an opinion will be drafted by the rapporteur.

Oral proceedings

Parties are entitled to make oral representations. Oral proceedings are public except where the Board of Appeal  decides that serious and unwarranted disadvantages could arise from admitting the public, particularly for any party to the Appeal proceedings.

4.  Decision of the Board of Appeal
The Board of Appeal  will reach a decision based on the examination of the case. The Board of Appeal  may itself exercise any power within the competence of the Office, or it may remit the case to the Office (which is bound by the decision of the Board of Appeal ) for action.

The decision, signed by the Chairman of the Board of Appeal  and the rapporteur, is delivered and forwarded in writing to the parties within 3 months of the closure of oral proceedings.  The decision is accompanied by a statement that an action may be brought before the European Court of Justice against a decision of the Board of Appeal  within 2 months of the date of service of the decision.

5.  Action before ECJ
An action may be brought before the European Court of Justice against a decision of the Board of Appeal  by any unsuccessful party.

Time limit - within 2 months of the date of service of the decision of the Board of Appeal .

Grounds:

  • Lack of competence
  • Infringement of an essential procedural requirement
  • Infringement of the Treaty, Regulation 2100/94 or any rule of law relating to their application
  • Misuse of power
The European Court of Justice may annul/alter the contested decision.  
The Office is bound to comply with the European Court of Justice judgement.

 

6. Fees
Pursuant to Article 113(2)(c) of Council Regulation (EC) n° 2100/94 , Article 11 of the Fees Regulation (Commission Regulation (EC) n° 1238/95 as amended) provides that the appellant shall pay an Appeal fee of Euros 1500 for the processing of an Appeal.
One third of the fee is due on the date of receipt of the Appeal.  The remaining two thirds are due, on request, within one month after the remittal of the case.  The fee may be refunded in the case of rectification by the Office (by authority of President), or in the event of successful Appeal (by the Board of Appeal), unless such rectification or successful Appeal is due to facts unavailable to the Office at the time of the original decision.

7. Costs
Article 85(1) of Council Regulation (EC) n° 2100/94 states that the losing party to Appeal proceedings (or the appellant who withdraws his Appeal) shall bear his own costs and the costs incurred by the other party essential to the proceedings, including the travel and subsistence expenses and the remuneration of an agent, adviser or advocate within the limits of the scales set for each category of costs as specified in Article 76 and the Annex to Commission Regulation (EC) n° 1239/95 (the losing party is only obliged to pay for one such agent etc. if the successful party has more than one: Article 76(3) Commission Regulation (EC) n° 1239/95).

On request, the Office or Board of Appeal may determine the amount of costs.
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