EU court chucks core argument for apple variety protection
The EU General Court has crushed a company’s attempt to protect the Gala Schnico apple variety, today affirming a decision of the Community Plant Variety Office (CPVO).
Schniga owns three Gala clone varieties, and its apples are some of the “most popular Gala mutations”, according to Schniga.
In 2009 the company applied to protect the plant variety Gala Schnico, an apple belonging to the species Malus domestica Borkh, with the CPVO.
The Study and Control Group for Varieties and Seeds (GEVES) carried out technical examinations of the candidate variety between 2010 and 2013, seeking to determine distinctiveness, uniformity, and stability.
By 2012 GEVES had noted colour variations in the fruit and in April 2014 it prepared a final report, declaring that the plant variety “is not sufficiently homogeneous”. It was based on conclusions disclosed to Schniga in the third interim report on the examination in February 2013.
Schniga claimed that the differences did not exist in the plant when it was grown for commercial purposes, “particularly in northern Italy”. As such the differences observed were “not due to the genetic structure of the candidate variety” but rather differences in the quality of the environment, for example the grafting material used by the CPVO.
Following GEVES’ recommendation, the CPVO rejected Schniga’s application to protect the plant, as it was not “sufficiently uniform in the expression of traits examined”. The company requested a further year of technical review, which was denied.
On appeal the Board of Appeal concurred with the rejection, finding that the issue related to the homogeneity of the characteristics had been adequately observed during two consecutive growing sessions.
In addition it said the CPVO was not obliged to ensure that differences in character were due to genetic cause, and conditions of the technical examination are the same for all plant examinations. The board said granting a request for an additional year of review is exceptional and, given the “clear results”, is not necessary in this matter.
In the EU General Court, Schniga argued that the site of the examination was inadequate; that the CPVO failed to demonstrate insufficient homogeneity due to genetic structure; and that the Board of Appeal did not meet its obligation to explain why no further CPVO examination was necessary, or examine the merits of the case.
Schniga claimed that the site was not “fit” for the examination, and in response the CPVO produced evidence to indicate that the “climatic conditions” on the GEVES site were favourable.
The court found that plant varieties are given “equal treatment, legal certainty, and transparency” when being examined, and there was no evidence suggesting the environmental conditions “impeded” the examination.
It also confirmed the “broad discretion” enjoyed by the CPVO in “determining the scientifically and technically complex issue of whether a candidate variety has, during a technical examination, displayed its characteristics in a sufficiently uniform way”.
In addition, the court held that the board “properly took into account” the evidence provided in Schniga’s appeal and said it did not “call into question the results of the technical examination”.
Schniga’s appeal was dismissed and it has been ordered to pay costs.
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