Case C-242/14, Saatgut-Treuhandverwaltung – Community plant rights after the barley mow

Strains of plants can be protected by a type of EU IP law known as the Community plant right. Consequently, if a farmer wants to use a plant that is protected by a Community plant right he will need to pay money to the right holder. Here, the question is whether a right holder is entitled to a farmer’s money when the right holder has not complied with the formalities of German law, and it may not have complied with the wording of the EU’s Regulation 2100/94 on Community plant variety rights.

Facts
German farmers engage in ‘Nachbau’, and keep a proportion of their harvest as propagating material for a subsequent, ‘planting the product of the harvest’.

However, some strains of plants are protected by a type of EU IP law known as the Community plant right.

So how should EU IP law apply in a situation where ‘the product of the harvest’ is obtained from material that comes from a protected variety?

The claimant in this case is the ‘STV’ [the ‘Saatgut-Treuhandverwaltung’], and that German company has but one purpose: it is to protect the economic interests of those in society who produce or market seeds.

The STV achieves its aim in a number of ways. For example, it monitors ‘plant variety’ rights on a national and international scale. It keeps a check on its members (or third parties) who are at propagating firms, or who are part of distribution associations. And it also adopts and implements ‘general measures’ that are designed to ensure that consumers get ‘top-quality’ seeds. The STV’s most important work is however to extract money from farmers and the like in respect of licences to use ‘plant variety rights’.

In this particular piece of litigation, the STV has tried to collect money from a family of German farmers. The STV’s attempt to get its money went like this. Every year, the STV would write to the defendant family enclosing a form. The form requested just general information about the extent to which in the relevant economic year the farmers were going to plant harvested material. (The request form did not however ask the farmers to identify which particular plant varieties they were going to plant.) The STV’s form also indicated which plant varieties were protected and who held not only the relevant plant breeders rights but also the respective licencees of those rights. However, the STV’s attempts to get this particular farming family to stump up failed because the farmers just did not return the form.

In 2011, the STV were informed by one of the farmer’s workers that in the economic year of 2010-2011, the farming family had used an amount of winter barley that was protected by a Community plant right. Consequently, the STV wrote to the farmers asking them about this, and set a time limit for them to reply. The farmers did not reply to the letter. The STV sent them a bill.

The matter ended up in court at the Landgericht in Mannheim. The farmers explained their belief that they were under no duty to pay any money to the STV. To start with, the STV’s bill was not legal. It did not comply with German law since the bill had failed to mention the VAT.

In any event, no legal debt had arisen. This was because the farmers were under no legal obligation in EU law to respond to the STV and provide them with the information being sought.

The law governing when a farmer must provide information is set down in Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14 (3) of Council Regulation (EC) No 2100/94 on Community plant variety rights.

Article 8(3) of that Regulation says:

The information […] shall refer to the current marketing year, and to one or more of the three preceding marketing years for which the farmer had not previously provided relevant information on request made by the holder in accordance with the provisions of paragraphs 4 or 5.
However, the first marketing year to which the information refers, shall be not earlier than the one in which the first of such requests for information was made in respect of the variety or varieties and the farmer concerned, or, alternatively, in which the farmer acquired propagating material of the variety or varieties concerned, if this was accompanied by information at least on the filing of the application for the grant of a Community plant variety right or on the grant of such right as well as on possible conditions relating to the use of that propagating material.
In the case of varieties coming under the provisions of Article 116 of the Basic Regulation and in respect of farmers entitled to invoke the provisions of Article 116 (4), second indent of the basic Regulation, the first marketing year shall be 2001/02.

Applying that provision here meant that the STV could only enquire about ‘the current marketing year’. Since the STV’s actual request related to a completely different marketing year, there was no legal basis for the STV’s request to provide information. Without such a legal basis, there was no obligation on the farmers to provide the information. Consequently, the STV could bring no legal claim for equitable remuneration on the basis of the farmers’ alleged failure to provide the information – for the farmers had not failed in their duty to provide information.

At the Landgericht Mannheim
The Landgericht Mannheim identified two major issues. First there was the Community plant variety regulation, and the scope of the so-called Article 14 derogation – could a farmer really be required to pay prior to planting harvested material? And second, if a farmer should pay not before but only after planting, then could some sort of timelimit for payment be imposed on the farmer?

A) the Article 14 derogation
The Landgericht Mannheim recalled the principle planks of EU legislation. Namely, the Article 14 derogation to the Community plant variety specifies:

1. Notwithstanding Article 13 (2), and for the purposes of safeguarding agricultural production, farmers are authorized 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.

The wording of Article 14 then goes on to say:

3. Conditions 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 the following criteria:

– in the case of those of the plant species referred to in paragraph 2 of this Article to which Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops (4) applies, farmers who do not grow plants on an area bigger than the area which would be needed to produce 92 tonnes of cereals; for the calculation of the area, Article 8 (2) of the aforesaid Regulation shall apply

Although unhelpful to providing a clear answer in the present case, there were also a couple of pieces reasoning in the CJEU’s case law.

First, there was Case C-305/00, Schulin v STV, in which it was said:

71. In any event, a farmer who does not pay equitable remuneration to the holder when he uses the product of the harvest obtained by planting propagating material from a protected variety, cannot rely on Article 14(1) of Regulation No 2100/94 and, therefore, must be considered to have undertaken, without being authorised, one of the acts referred to in Article 13(2) of that regulation. Accordingly, it is clear from Article 94 of that regulation that such a farmer can have an action brought against him by the holder for an injunction in respect of the infringement or for payment of equitable remuneration or both. If the infringement is intentional or negligent, the farmer is also obliged to pay damages to make good the loss suffered by the holder.

Second, there was the later judgment in Case C-509/10, Geistbeck v STV – a case in which a farmer had planted more of his harvest than he had declared. In Geistbeck, the CJEU had explained:

23 In that regard, the Court has found that a farmer who does not pay equitable remuneration to the holder when he uses the product of the harvest obtained by planting propagating material from a protected variety cannot rely on Article 4(1) of Regulation No 2100/94 and must therefore be considered to have carried out, without being authorised, one of the acts referred to in Article 13(2) of that regulation (Schulin, paragraph 71).
24 As it is, the situation of the Geistbecks is similar to that of farmers who have not paid the ‘equitable remuneration’ provided for under the fourth indent of Article 14(3) of Regulation No 2100/94, in so far as, by not declaring a part of the product of the harvest that they had planted, they did not pay such remuneration.

But this body of EU law did not really provide a clear answer to the present case, namely, whether, and up to what point in time, a farmer was required to pay the equitable remuneration provided for under the fourth indent of Article 14(3) of Regulation (cited above), if he was to qualify for the Article 14(1) derogation.

STV’s standpoint was clear. It believed that a farmer must have satisfied all of the requirements to qualify for the Article 14 derogation and to have done so at the moment of planting – otherwise, the farmer would commit an unauthorised act pursuant to Article 13(2) of Regulation 1768/95.

But the Landgericht in Mannheim was suspicious about the validity of that submission. Yes, Article 6(1) of Regulation 1768/95 did indeed create an obligation on an individual to pay an equitable remuneration at the moment when he actually used the harvested product in the field for propagation purposes. Equally, the second sentence of that provision permitted the right holder to decide and set the day on which payment must be made, and even the method of payment. However, there appeared to be nothing in the wording of the second sentence which would allow for the payment date to be fixed prior to the date on which the obligation actually arose. Consequently, the Landgericht understood the EU legislation to mean that the farmer could not be obliged to pay the compensation prior to the actual start of the planting of the product of the harvest.

Furthermore, the Landgericht Mannheim had understood that it was general commercial practice for payment to take place only after the farmer had planted, and only then after the right holder had asked for the relevant information, and indeed only after he had provided the right holder with that information. It seemed to be understood commercially that a farmer would be taken to have to discharged his obligation once he had filled out a form which specified which particular plant varieties had been planted in the relevant period of ‘the request for information’ form – for on the basis of that information, he would then pay the correct amount at a later date. In other words, payment would only come after planting. Still, the referring court decided to ask a question of the CJEU on this point.

B) the payment framework
Now in the event of a farmer not being obliged to pay prior to planting, this would mean that a farmer’s planting was indeed ‘authorised’ for the purposes of aforementioned Article 14(1) of Regulation 2100/94, when read together with Article 94(1) of that Regulation. So how should he pay the equitable remuneration?

In so far as Article 94 is mentioned in the subsequent question asked by the Landgericht, it might be helpful to note at this point that Article 94 governs ‘Infringement’, and states boldly:

1) Whosoever: (a) effects one of the acts set out in Article 13 (2) without being entitled to do so, in respect of a variety for which a Community plant variety right has been granted; or (b) omits the correct usage of a variety denomination as referred to in Article 17 (1) or omits the relevant information as referred to in Article 17 (2); or (c) contrary to Article 18 (3) uses the variety denomination of a variety for which a Community plant variety right has been granted or a designation that may be confused with it; may be sued by the holder to enjoin such infringement or to pay reasonable compensation or both.
2) Whosoever acts intentionally or negligently shall moreover be liable to compensate the holder for any further damage resulting from the act in question. In cases of slight negligence, such claims may be reduced according to the degree of such slight negligence, but not however to the extent that they are less than the advantage derived therefrom by the person who committed the infringement.

But the Landgericht felt that this did not really answer the issue here since the parties had no contractual relations whatsoever. What should be done? There were no contractual arrangements in place concerning the timelimit for payment in respect of monies owing from the planting of the product of the harvest. Equally, the STV had made no use of the possibilities afforded to it by Article 6(1) of Regulation 1768/95 for putting in place a payment programme. Furthermore, the STV’s letter requesting information had also failed to set out a timeframe for payment. That said, neither of the EU’s Regulation had expressly set down a payment time frame in respect of a farmer who was considered to be ‘authorised’ to start planting. Indeed, the wording of the EU Regulations did not seem to support any of the proposed interpretations of the law which had been advanced by the STV. So what should be done? The Landgericht Mannheim felt it appropriate to ask a question on this point too.

Questions Referred
My unofficial translation of the questions asked by the Landgericht Mannheim reads:

1. Is a farmer – who, without contractual agreements with the plant variety right holder, uses the product of the harvest obtained by planting propagating material from a protected variety – required to pay an equitable remuneration to the right holder in accordance with Article 94(1) of Regulation (EC) No 2100/94 of the Council of 27 July 1994 on Community plant variety rights; and required to pay compensation for all further harm which is caused, whether intentionally or negligently, through infringing the plant variety right within the meaning of Article 94(2) of the Regulation, when the obligation to pay an equitable remuneration by dint of Article 14(3) fourth indent – read together with Articles 5 et seq of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption for farmers provided for in Article 14(3) of Council Regulation (EC) No 2100/94 – had not yet been fulfilled at the time of the actual use of the product of the harvest for propagating purposes in the field?

2. In the event of the answer to the first question being that the farmer can still be obliged to pay an equitable remuneration even after an actual use of the product of the harvest for propagating purposes in the field, must the aforementioned provisions be interpreted in such a way that they set a time limit to pay equitable remuneration for the farmer who has planted using propagating material obtained from a protected variety for that farmer to be considered ‘authorised’ for the purposes of Article 94(1) of Regulation (EC) No 2100/94 when read together with Article 14?

Update – 30 January 2015
The CJEU’s ruling in C-509/10, Geistbeck ECLI:EU:C:2012:416 also features in another reference concerning plant rights; see further, Case C-481/14, Jørn Hansson – Daisy! Daisy! Give me eight answers do!

Update – 1 February 2015
The Second Chamber is deciding Case C-242/14, Saatgut-Treuhandverwaltung. It is not clear from the Curia diary that there was a hearing but Advocate General Jääskinen’s Opinion is expected on 5 March 2015.

Update – 2 June 2015
The judgment of the Second Chamber is due out on 25 June 2015.


Update – 25 June 2015
Judgment

A version of the CJEU’s judgment in Case C-242/14, Saatgut-Treuhandverwaltung ECLI:EU:C:2015:422 ECLI:EU:C:2015:291 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.
 

JUDGMENT OF THE COURT (Second Chamber)

25 June 2015 ( )

(Reference for a preliminary ruling — Community plant variety rights –Regulation (EC) No 2100/94 — Derogation provided for in Article 14 –Use by farmers of the product of the harvest for propagating purposes without the holder’s authorisation — Farmers under an obligation to pay equitable remuneration for such use — Period within which that remuneration must be paid in order to be able to benefit from the derogation — Whether it is possible for the holder to have recourse to Article 94 — Infringement)

In Case C‑242/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Mannheim (Germany), made by decision of 9 May 2014, received at the Court on 19 May 2014, in the proceedings

Saatgut-Treuhandverwaltungs GmbH

v

Gerhard und Jürgen Vogel GbR,

Jürgen Vogel,

Gerhard Vogel,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, J.-C. Bonichot, A. Arabadjiev, J.L. da Cruz Vilaça and C. Lycourgos (Rapporteur), Judges,

Advocate General: N. Jääskinen,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Saatgut-Treuhandverwaltungs GmbH, by K. von Gierke and E. Trauernicht, Rechtsanwälte,

–        Gerhard und Jürgen Vogel GbR, Mr G. Vogel and Mr J. Vogel, by J. Beismann, and M. Miersch, Rechtsanwälte,

–        the Spanish Government, by A. Gavela Llopis, acting as Agent,

–        the Netherlands Government, by M. Bulterman, C. Schillemans and J. Langer, acting as Agents,

–        the European Commission, by G. von Rintelen and I. Galindo Martín, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 March 2015,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of certain provisions of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) and 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 request has been made in proceedings between Saatgut-Treuhandverwaltungs GmbH (‘STV’), which represents the interests of the holder of Community plant variety rights in respect of the winter barley variety ‘Finita’, and Gerhard und Jürgen Vogel GbR, an agricultural company, Mr G. Vogel and Mr J. Vogel, the personally liable partners in that company (together, ‘the Vogels’) concerning the Vogels’ planting of that variety.

 Legal context

 Regulation No 2100/94

3        Article 13 of Regulation No 2100/94, which is entitled ‘Rights of the holder of a Community plant variety right and prohibited acts’, provides as follows:

‘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);

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

…’

4        Article 14 of Regulation No 2100/94, entitled ‘Derogation from Community plant variety right’, is worded as follows:

‘1.      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.

2.      The provisions of paragraph 1 shall only apply to agricultural plant species of:

(b)      Cereals:

Hordeum vulgare L. — Barley

3.      Conditions 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 the following criteria:

–        small farmers shall not be required to pay any remuneration to the holder;

–        other farmers shall be required to pay an equitable remuneration to the holder, which shall be sensibly lower than the amount charged for the licensed production of propagating material of the same variety in the same area; the actual level of this equitable remuneration may be subject to variation over time, taking into account the extent to which use will be made of the derogation provided for in paragraph 1 in respect of the variety concerned;

–        monitoring compliance with the provisions of this Article or the provisions adopted pursuant to this Article shall be a matter of exclusive responsibility of holders; in organising that monitoring, they may not provide for assistance from official bodies;

–        relevant 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. …’

5        Article 94 of Regulation No 2100/94, which deals with the civil law actions which may be brought in the event of use of a plant variety in a manner which amounts to an infringement, provides as follows:

‘1.       Whosoever:

(a)      effects one of the acts set out in Article 13(2) without being entitled to do so, in respect of a variety for which a Community plant variety right has been granted;

may be sued by the holder to enjoin such infringement or to pay reasonable compensation or both.

2.      Whosoever acts intentionally or negligently shall moreover be liable to compensate the holder for any further damage resulting from the act in question. In cases of slight negligence, such claims may be reduced according to the degree of such slight negligence, but not however to the extent that they are less than the advantage derived therefrom by the person who committed the infringement.’

 Regulation No 1768/95

6        Article 1(1) of Regulation No 1768/95 states that the 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.

7        Article 2 of Regulation No 1768/95 is worded as follows:

‘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.’

8        Article 6 of Regulation No 1768/95, entitled ‘Individual obligation to payment’, provides in paragraph 1 thereof as follows:

‘Without prejudice to the provisions of paragraph 2, the individual obligation of a farmer to pay the equitable remuneration shall come to existence at the time when he actually makes use of the product of the harvest for propagating purposes in the field.

The holder may determine the date and the manner of payment. However, he shall not determine a date of payment which is earlier than the date on which the obligation has come to existence.’

9        Article 7 of Regulation No 1768/95, entitled ‘Small farmers’, states in paragraph 2 thereof as follows:

‘Areas of the holding of the farmer on which plants have been grown, but which are land set aside, on a temporary or permanent basis, in the marketing year starting on 1 July and ending on 30 June of the subsequent calendar year (“the marketing year”), in which the payment of the remuneration would be due, shall be considered to be areas on which plants are still grown, if subsidies or compensatory payments are granted by the Community or by the Member State concerned in respect of that set aside.’

10      Article 17 of Regulation No 1768/95, entitled ‘Infringement’, provides as follows:

‘The holder may invoke the rights conferred by the Community plant variety right against a person who contravenes any of the conditions or limitations attached to the derogation pursuant to Article 14 of the basic Regulation as specified in this Regulation.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

11      STV is an association of plant variety right holders that manages, inter alia, the rights of the holder of the winter barley variety ‘Finita’, which is protected under Regulation No 2100/94. STV publishes on its website a list setting out all the protected plant varieties the rights to the administration of which it has been granted in the course of various marketing years, as well as the planting fees payable for those varieties. Moreover, each year STV asks farmers, without specifying a particular variety, to provide information on any planting of protected plant varieties for which STV administers the rights, sending to them planting declaration forms for that purpose, together with a guide listing all the protected varieties for which it administers the rights in the relevant marketing year and the corresponding right holders and persons enjoying rights of exploitation. The Vogels, which do not have any contractual relations with STV, did not respond to those requests for information.

12      On 16 December 2011, STV became aware, through a processor, that in the marketing year 2010/11 the Vogels had, among other things, arranged for 35 quintals of seed of the winter barley variety ‘Finita’ to be processed.

13      By letter of 31 May 2012, STV asked the Vogels to verify the information concerning the planting of the winter barley variety ‘Finita’ disclosed by that processor and to send it information concerning that planting, directing them to reply by 20 June 2012 at the latest. The Vogels did not reply to that reply.

14      By letter of 27 July 2012, STV claimed from the Vogels payment of EUR 262.50, corresponding to the full fee that would be due for licensed use of seeds of the winter barley variety ‘Finita’, known as the ‘C-Licence’, as compensation for the damage suffered as a result of the undisclosed planting of that protected variety. As no such payment was forthcoming, STV brought an action on 18 March 2013 seeking such compensation on the basis of Article 94(1) and (2) of Regulation No 2100/94.

15      In support of its action, STV argues that the Vogels are required to pay to it reasonable compensation in an amount equivalent to the full C-Licence fee, pursuant to Article 94(1) of Regulation No 2100/94, because they carried out planting ‘without being entitled to do so’ within the meaning of that provision, and were not entitled to avail themselves of the derogation provided for in Article 14(1) of the regulation as they had failed to comply with the requirement to pay equitable remuneration laid down in the fourth indent of Article 14(3) of that regulation. STV also claims that that payment requirement is enforceable irrespective of whether a request for information has been made by the holder of the protected plant variety concerned and that the farmer must make the payment prior to sowing and, in any event, by the end of the marketing year in which the protected variety was planted. STV is also of the view that the information published on its website and the guide listing all the protected varieties the rights to the management of which it has been granted, which is sent each year to farmers, enables the Vogels to calculate themselves, and therefore pay, the amount due for planting those varieties.

16      The Vogels claim that they are not liable for payment of an amount equivalent to the full C-Licence fee by way of compensation. They submit that they owe, at the most, a reduced fee, on the ground that the planting was ‘authorised’ within the meaning of Article 14(1) of Regulation No 2100/94. They also contend that they were not under any obligation to reply to the request for information of 31 May 2012, as that request did not relate to the current marketing year. According to the Vogels, there would have to be an infringement of the obligation to provide information in order for the conditions governing entitlement to compensation to be satisfied.

17      The referring court has expressed doubts concerning STV’s claim that the farmer is required to pay, of his own initiative, the remuneration referred to in the fourth indent of Article 14(3) of Regulation No 2100/94 before sowing, in particular in the light of Article 6(1) of Regulation No 1768/95. It observes that the latter provision would appear to preclude the inference that the farmer is required to pay that remuneration in advance, before sowing. Furthermore, that court states that if that remuneration could be paid after planting the protected variety, the question then arises as to the date by which the farmer is required to pay that remuneration in order to be able to benefit from the derogation provided for in Article 14 of Regulation No 2100/94 and thus fall outside the infringement provisions laid down in Article 94 of the regulation. According to the referring court, the provisions of Regulation Nos 2100/94 and 1768/95 do not provide a clear and unambiguous answer to that question, which the Court has not had occasion to address.

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

‘(1)      Is a farmer who has planted propagating material obtained from a protected plant variety without having concluded a contract for so doing with the plant variety right holder required to pay reasonable compensation, as provided for in Article 94(1) of Regulation No 2100/94, and — if he has acted intentionally or negligently — to compensate the holder for any further damage resulting from the infringement of the plant variety right in accordance with Article 94(2) of that regulation, where he has not yet fulfilled his obligation under the fourth indent of Article 14(3) of that regulation, in conjunction with Articles 5 and 6 of Regulation No 1768/95, to pay an equitable remuneration (planting fee) at the time when he actually made use of the product of the harvest for propagating purposes in the field?

(2)      If the first question is to be answered to the effect that the farmer can still fulfil his obligation to pay an equitable planting fee even after he has actually made use of the product of the harvest for propagating purposes in the field, are the aforementioned provisions to be interpreted as fixing a period within which a farmer who has planted propagating material obtained from a protected plant variety must fulfil his obligation to pay an equitable planting fee in order for the planting to be capable of being regarded as “authorised” for the purposes of Article 94(1) of Regulation No 2100/94 in conjunction with Article 14 of that regulation?’

 Consideration of the questions referred

19      By its questions, which it is appropriate to consider together, the referring court seeks to ascertain, in essence, the period within which a farmer who has planted propagating material obtained from a protected plant variety (farm-saved seed) without having concluded a contract for so doing with the holder of the plant variety right concerned must comply with the requirement to pay the equitable remuneration due under the fourth indent of Article 14(3) of Regulation No 2100/94 (‘the equitable remuneration by way of derogation’) in order to be able to benefit from the derogation from the obligation to obtain the holder’s authorisation provided for in Article 14.

20      It should be noted, first, that Article 13(2) of Regulation No 2100/94 provides that the authorisation of the holder of the plant variety right is required, in respect of variety constituents or harvested material of the protected variety, inter alia, for production or reproduction (multiplication). In that context, Article 14(1) of that regulation establishes a derogation from that rule, insofar as use of the product of the harvest obtained by farmers, on their own holding, for propagating purposes in the field is not conditional upon authorisation by the holder of the right where they fulfil certain conditions expressly set out in Article 14(3) of that regulation (see judgment in Geistbeck, C‑509/10, EU:C:2012:416, paragraphs 21 and 22).

21      One of those conditions, set out in the fourth indent of Article 14(3) of Regulation No 2100/94, requires payment to be made, by way of derogation from the authorisation requirement, to the holder of the plant variety right concerned of equitable remuneration in respect of such use.

22      A farmer who does not pay equitable remuneration to the holder when he uses the product of the harvest obtained by planting propagating material of a protected variety cannot rely on Article 14(1) of Regulation No 2100/94 and, therefore, must be regarded as having undertaken, without being entitled to do so, one of the acts set out in Article 13(2) of that regulation. Accordingly, it follows from Article 94 of that regulation that an action may be brought against such a farmer by the holder for an injunction in respect of the infringement or for payment of fair compensation, or both. If the infringement is intentional or negligent, the farmer is also obliged to pay damages to make good the loss suffered by the holder (judgment in Schulin, C‑305/00, EU:C:2003:218, paragraph 71).

23      The referring court is uncertain, first, whether the farmer concerned must pay the equitable remuneration by way of derogation before actually using the product of the harvest for propagating purposes in the field.

24      In that regard, Article 6 of Regulation No 1768/95, which establishes the implementing rules in respect of the obligation to pay equitable remuneration by way of derogation, provides in the second subparagraph of paragraph 1 thereof that while the holder of the protected plant variety concerned may determine the date and manner of payment, he may not determine a date for payment which is earlier than the date on which the obligation to pay such equitable remuneration arose. In accordance with the first subparagraph of Article 6(1) of that regulation, that obligation arises when the farmer actually makes use of the product of the harvest of the protected variety for propagating purposes in the field. It follows that such a farmer may still fulfil that obligation after he has sown the product of the harvest of the protected variety, as that date of actual use of the product for propagating purposes in the field is not the deadline by which payment of equitable remuneration by way of derogation must be made but the date from which that remuneration becomes payable.

25      While that provision makes it possible to assert that a farmer may still fulfil his obligation to pay equitable remuneration by way of derogation after he has actually sown the product of the harvest of the protected variety, there is no indication whatsoever in that provision of the period within which the farmer is required to pay that remuneration when no date for payment has been set, under the second subparagraph of Article 6(1) of Regulation No 1768/95, by the holder of the right to the protected variety.

26      In that regard, the Vogels and the Spanish Government maintain, in essence, that that period may run indefinitely. They rely specifically on Article 6(1) of Regulation No 1768/95, stating in that regard that, while that provision governs the date on which the payment obligation arises, it does not lay down any deadline for payment.

27      That interpretation cannot be accepted, however.

28      In the first place, as the Advocate General observed at point 39 of his Opinion, to allow a farmer who has planted propagating material obtained from a protected plant variety (farm-saved seed) to fulfil, without any time-limit, the obligation to pay equitable remuneration by way of derogation and, thereby, avail himself indefinitely of the derogation under Article 14 of Regulation No 2100/94 would deprive the legal proceedings provided for in Article 94 of that regulation of any useful purpose. Moreover, since it provides that proceedings may be brought against any infringer who has failed to comply with that payment obligation, Article 94 of Regulation No 2100/94 precludes such a person from being able to regularise his situation at any time, including after the holder of the plant variety right has discovered an undisclosed use of the protected plant variety. If follows that only by defining a payment period is it possible to ensure that such proceedings are effective.

29      In the second place, it should be recalled that the holders of plant variety rights alone are responsible for the control and supervision of the use of the protected varieties in the context of authorised planting and they depend, therefore, on the good faith and cooperation of the farmers concerned (judgment in Geistbeck, C‑509/10, EU:C:2012:416, paragraph 42). Accordingly, the absence of a precisely defined period within which farmers are required to comply with the obligation to pay equitable remuneration by way of derogation is liable to encourage farmers to defer that payment indefinitely, in the hope of avoiding payment altogether. To allow farmers to avoid complying with their own obligations towards holders in such a way would be at odds with the objective set out in Article 2 of Regulation No 1768/95 of maintaining a reasonable balance between the legitimate interests of the farmers and the holders concerned.

30      For the purpose of examining whether the relevant provisions actually make provision for a payment period, it should be noted that it is apparent from Article 7(2) of Regulation No 1768/95 that the marketing year during which payment of the remuneration is due starts on 1 July and ends on 30 June of the subsequent calendar year. Although that provision concerns the definition of areas dedicated to growing plant varieties by small farmers, it clearly shows that the marketing year during which propagating material obtained from a protected plant variety (farm-saved seed) was planted was regarded by the institution responsible for that regulation, when establishing the implementing rules for Article 14(3) of Regulation No 2100/94, as the relevant period in which the equitable remuneration by way of derogation is to be paid.

31      Thus, if he has failed to pay the equitable remuneration by way of derogation within the period that expires at the end of the marketing year during which he planted propagating material obtained from a protected plant variety, without having concluded a contract for so doing with the plant right holder, a farmer must be regarded as having effected, without being entitled to do so, one of the acts set out in Article 13(2) of Regulation No 2100/94, which entitles the holder to bring the forms of action provided for in Article 94 of that regulation.

32      In the light of the foregoing considerations, the answer to the questions referred is that, in order to be able to benefit from the derogation provided for in Article 14 of Regulation No 2100/94 from the obligation to obtain the authorisation of the holder of the plant variety right concerned, a farmer who has planted propagating material obtained from a protected plant variety (farm-saved seed) without having concluded a contract for so doing with the holder, is required to pay the equitable remuneration by way of derogation within the period that expires at the end of the marketing year during which that planting took place, that is, no later than 30 June following the date of reseeding.

 Costs

33      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 (Second Chamber) hereby rules:

In order to be able to benefit from the derogation provided for in Article 14 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights from the obligation to obtain the authorisation of the holder of the plant variety right concerned, a farmer who has planted propagating material obtained from a protected plant variety (farm-saved seed) without having concluded a contract for so doing with the holder is required to pay the equitable remuneration due under the fourth indent of Article 14(3) of that regulation within the period that expires at the end of the marketing year during which that planting took place, that is, no later than 30 June following the date of reseeding.

[Signatures]


Language of the case: German.