CJEU Clarifies Scope of Protection Offered by Community Plant Variety Rights

C-176/18: Club de Variedades Vegetales Protegidas v Adolfo Juan Martínez Sanchís

The CJEU have recently offered clarification regarding the scope of protection offered by Community Plant Variety Rights regarding to what extent acts relating to harvested material from protected varieties constitute an infringement and the level of protection provided to right holders during the period of provisional protection after publication of the Plant Varity Right application but prior to its grant.


Club de Variedades Vegetales Protegidas (CVVP) applied for a Community Plant Variety Right (CPVR) in respect of the mandarin tree variety 'Nadorcott' on 22 August 1995. This was granted by the Community Plant Variety Office (CVPO) on 4 October 2004. While an appeal with suspensive effect of the grant was filed, this appeal was dismissed and the decision was published in the Official Gazette of the CVPO on 15 February 2006.

During the period when the application was pending (i.e. between 1995 and 2006), Mr Sanchís purchased plants of the Nadorcott variety from a nursery that was open to the public and harvested and sold oranges obtained from the Nadorcott variety.

CVVP brought an infringement action against Mr Sanchís for harvesting and selling fruit obtained from the protected Nadorcott plant variety - including both acts that occurred after the grant of the CPVR and during the period of "provisional protection" following publication of the plant variety right application and its grant.

The Provincial Court in Spain held that Mr Sanchís had purchased the plants in good faith from the nursery prior to grant and therefore the infringement claims were unfounded.

Upon appeal by CVVP, the Spanish Supreme Court considered it necessary to refer three questions to the CJEU regarding the extent of protection offered by Plant Variety Rights both with respect to infringing acts relating to material harvested from protected varieties and acts that occur during the "provisional period" protection prior to grant of the CPVR.

The Law

The protection of plant varieties in the EU is governed by EU Regulation No 2100/94, of which Article 13 sets out the rights of holders of Community Plant Variety Rights and prohibited acts.

Art. 13(2) of the Regulation states that

"…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…"

Art. 5(3) of the Regulation defines variety constituents as "entire plants or parts of plants as far as such parts are capable of producing entire plants".

Art. 13(3) limits the protection offered to harvested materials and states that:

"The provisions of paragraph 2 shall apply in respect of harvested material only if this was obtained through the unauthorised use of variety constituents of the protected variety , and unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents."

The CJEU noted that the Regulation offers "primary protection" for producing and reproducing (and other acts relating to) variety constituents, but only offers "secondary protection" for harvested material - which is subject to the limitation that there is only infringement if the harvested material is obtained from unauthorised use of the plant itself.

Although, three questions were by the Spanish Supreme Court, the CJEU separately considered the issues of the extent of protection of harvested materials and acts that occur during the period of provisional protection and answered two reformulated questions.

Harvested Materials

Regarding the first issue, based on the distinctions between variety constituents and harvested materials drawn out by Art. 13(3) of the Regulation, when considering infringement, the CJEU found it is necessary to determine whether the allegedly infringing act constituted the production (or reproduction) of variety constituents or the production of harvested materials.

In this case, it was accepted by both sides that the oranges harvested from the Nadorcott plants could not be used as propagating material and therefore could not be considered to be parts of plants capable of producing entire plants (as required by Art. 5(3) of the Regulation).

Therefore, the CJEU concluded that the "primary protection" afforded to variety constituents could not apply in this case. Only the "secondary protection" afforded to harvested material could apply and in accordance with Art. 13(3), selling harvested material could only be considered an infringing act if it were was obtained through unauthorised use of the protected plant variety.

Provisional Protection

Having established that selling harvested fruit would only be an infringement of the CPVR if the fruit were obtained through unauthorised use of the protected variety, the CJEU went on to consider whether the purchase and planting of the variety during the period of provisional protection (without the authorisation of the right holder) constituted authorised use.

Here, the CJEU noted that Art. 94 of the Regulation provides the CPVR holder with exclusive rights in respect of infringing acts after grant of the CPVR (and confers on third parties the need to obtain authorisation before conducting potentially infringing acts).

Separately, Art. 95 only states that the holder may require reasonable compensation from any person who between the time of publication and grant conducts an act that would be infringing post-grant. This "compensation scheme" is not the same as providing exclusive rights and therefore no authorisation by the holder can be said to be required prior to grant.

In this case, as no authorisation was required at the time of planting, it was concluded that the harvested material was not obtained from unauthorised use of the plant variety.

It was however noted that for any plants that were obtained after grant of the CPVR, authorisation from the holder for obtaining the plants would be required to ensure that the harvesting and selling of fruit would not be considered an infringing act.


The judgement of the CJEU will come as a welcome relief to farmers who legitimately exploit plant varieties which later go on to become protected and provides clarification regarding the scope of protection for right holders during the often lengthy period after a CPVR application has been filed but prior to its grant.

Annex: Questions Answered by the CJEU

  1. Article 13(2)(a) and (3) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the activity of planting a protected variety and harvesting the fruit thereof, which is not likely to be used as propagating material, requires the authorisation of the holder of the Community plant variety right relating to that plant variety where the conditions laid down in Article 13(3) of that regulation are fulfilled.
  2. Article 13(3) of Regulation No 2100/94 must be interpreted as meaning that the fruit of a plant variety, which is not likely to be used as propagating material, may not be regarded as having been obtained through the 'unauthorised use of variety constituents' of that plant variety, within the meaning of that provision, where those variety constituents were propagated and sold to a farmer by a nursery in the period between the publication of the application for a Community plant variety right in relation to that plant variety and the grant thereof. Where, after such protection has been granted, those variety constituents were propagated and sold without the authorisation of the right holder, the latter may assert his or her right under Article 13(2)(a) and (3) of that regulation in respect of that fruit, unless he or she had reasonable opportunity to exercise his or her right in relation to those variety constituents.

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