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Board of Appeal

The board of Appeal is responsible for deciding on appeals made against certain kinds of decisions taken by the CPVO. The Board is made up of a Chairman and alternate, and members chosen by the Chairman from a list (drawn up on the basis of a strict regulatory procedure) depending on the cases under consideration. The members of the Board of Appeal are independent.

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

Board of Appeal Chairmanship

  1. By Council Decision of 19 February 2018, Mr. Paul A.C.E. VAN DER KOOIJ has been appointed Chairperson of the Board of Appeal of the Community Plant Variety Office for a period of five years from 19 February 2018. The complete text of the decision  is available on the EUR-Lex site.
  2. By Council Decision of 16 June 2016, Ms. Sari Kaarina HAUKKA,  the alternate to the Chairperson of the Board of Appeal of the Community Plant Variety Office was renewed for a period of 5 years with effect from 15 October 2016. Complete content of the decision is available on the EUR-Lex site.

Qualified members

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 30th September 2015 session, adopted the following list of 23 qualified members of the Board of Appeal of the CPVO for a period of five years from 23rd February 2016.

  1. Ms Beatrix BÖNISCH
  2. Mr Richard BRAND
  3. Mr Paul de HEIJ
  4. Mr Krieno FIKKERT
  5. Mr Huib GHIJSEN
  6. Mr Joël GUIARD († RIP)
  7. Ms Helen JOHNSON
  8. Ms Ofelia KIRKORIAN-TSONKOVA
  9. Mr Michael KÖLLER
  10. Mr François LALLOUET
  11. Mr Stephan MARTIN
  12. Mr Miguel Angelo PINHEIRO DE CARVALHO
  13. Mr André POHLMANN
  14. Mr Dirk REHEUL
  15. Mr Kurt RIECHENBERG
  16. Ms Beate RÜCKER
  17. Ms Ivana RUKAVINA
  18. Ms Elizabeth SCOTT
  19. Mr Péter SIPOS
  20. Mr Sven STÜRMANN
  21. Mr Zsolt SZANI
  22. Mr Hanns ULLRICH
  23. Mr Nicolaas VAN MARREWIJK

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.