Order of 19 Nov 2024, C-520/24 (Jaw de Croon v CPVO), ECLI:EU:C:2024:1010.

ORDER OF THE COURT (Chamber determining whether appeals may proceed)

19 November 2024 (*)

( Appeal – Community plant variety rights – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court of Justice – Appeal not demonstrating the significance of an issue of law with respect to the unity, consistency or development of EU law – Appeal not allowed to proceed )

In Case C-520/24 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 July 2024,

Jaw de Croon Holding BV, established in Apeldoorn (Netherlands), represented by T. Overdijk, advocaat,

appellant,

the other parties to the proceedings being:

Community Plant Variety Office (CPVO),

defendant at first instance,

Belgicactus, established in Westerlo (Belgium),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of T. von Danwitz, Vice-President of the Court, A. Kumin (Rapporteur) and I. Ziemele, Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, R. Norkus,

makes the following

Order

1        By its appeal, Jaw de Croon Holding BV seeks to have set aside the judgment of the General Court of the European Union of 29 May 2024, Jaw de Croon v CPVO – Belgicactus (Belsemred1) (T-77/23, EU:T:2024:330; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 16 December 2022 (Case A 24/2021), concerning invalidity proceedings between Jaw de Croon Holding and Belgicactus.

 The request that the appeal be allowed to proceed

2        Under the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, an appeal brought against a decision of the General Court concerning a decision of an independent board of appeal of the Community Plant Variety Office is not to proceed unless the Court of Justice first decides that it should be allowed to do so.

3        The third paragraph of Article 58a of that statute provides that an appeal is to be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Rules of Procedure of the Court of Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.

4        Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of that statute, the appellant is to annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of EU law and containing all the information necessary to enable the Court to rule on that request.

5        In accordance with Article 170b(1) and (3) of the Rules of Procedure, the Court is to rule as soon as possible on the request that the appeal be allowed to proceed, in the form of a reasoned order.

6        In support of its request that the appeal be allowed to proceed, the appellant submits, in the present case, that the two grounds of its appeal raise issues that are significant with respect to the unity, consistency and development of EU law, likely to arise in numerous situations involving the CPVO or other offices, agencies and authorities of the Union referred to in Article 58a of the Statute of the Court of Justice of the European Union.

7        By its first ground of appeal, the appellant alleges infringement of Articles 75 and 78 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 277, p. 1), of Article 60 of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 2009 L 251, p. 3), and of Article 6(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.

8        More precisely, the appellant submits that the General Court’s assessment is vitiated by at least four procedural errors, appearing in the form of infringements of essential procedural requirements.

9        Thus, first, the General Court incorrectly assessed the evidence put before it. According to the appellant, it cannot be accepted that, when assessing the evidence, the General Court focuses not on the facts to be proved but makes its assessment with regard to facts which are not at issue.

10      Second, the appellant complains that the General Court accepted that the CPVO adjudicates on facts which are not in dispute between the parties. Thus, the issue arises as to whether the examination of such facts constitutes an infringement of the principle of the sound administration of justice and it is necessary to determine the scope of the right or duty of the CPVO, referred to in Article 76 of Regulation No 2100/94, to make investigations on the facts of its own motion.

11      Third, the General Court applied excessively strict criteria to assess the probative value of a witness statement, which, according to the appellant, raises the issue concerning the rules to apply during the assessment of the probative value of witness statements and the general criteria for assessing the credibility of witnesses.

12      Fourth, the General Court failed to consider that the CPVO’s unilateral initiation of contact with a witness, without informing the appellant of it, constitutes an infringement of essential procedural requirements. The issue thus arises as to whether such an initiation of contact constitutes a breach of the principles of due process and of equality of arms. The issue also arises as to whether the procedural rules for the taking of evidence, such as Article 78(3) of Regulation No 2100/94, are binding on EU bodies.

13      By its second ground of appeal, the appellant alleges infringement of Article 7 of Regulation No 2100/94 or of any rule of law relating to the application of that article, including of the TEU and of the TFEU. In that regard, the appellant criticises the General Court for not having taken the view (i) that the CPVO should have accepted that the evidence adduced by the appellant was sufficient to establish that the variety Sempervivum Red had been of common knowledge at an earlier point in time, (ii) that that variety and the variety ‘Belsemred1’ had to be considered identical or non-distinct, and (iii) that, at the date of the decision to grant Community protection, the variety ‘Belsemred1’ did not fulfil the requirement of distinctness and that it was therefore necessary to annul it.

14      According to the appellant, the infringement by the General Court of Article 7 of Regulation No 2100/94 raises the issue whether the CPVO must consider as accepted facts which were not in dispute between the parties and whether it can make investigations into them of its own motion.

15      As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by its appeal are significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 20, and of 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 14).

16      Furthermore, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read together with Article 170a(1) and Article 170b(4) of the Rules of Procedure, the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed and to specify, where the appeal is allowed to proceed in part, the pleas in law or parts of the appeal to which the response must relate. Given that the objective of the mechanism provided for in Article 58a of that statute, whereby the Court determines whether an appeal should be allowed to proceed, is to restrict review by the Court to issues that are significant with respect to the unity, consistency or development of EU law, only grounds of appeal that raise such issues and that are established by the appellant are to be examined by the Court in an appeal (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 21, and of 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 15).

17      Accordingly, a request that an appeal be allowed to proceed must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal, specify whether that issue is significant with respect to the unity, consistency or development of EU law and set out the specific reasons why that issue is significant according to that criterion. As regards, in particular, the grounds of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or the case-law that has been infringed by the judgment or order under appeal, explain succinctly the nature of the error of law allegedly committed by the General Court, and indicate to what extent that error had an effect on the outcome of the judgment or order under appeal. Where the error of law relied on results from an infringement of the case-law, the request that the appeal be allowed to proceed must explain, in a succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the paragraphs of the judgment or order under appeal which the appellant is calling into question, as well as those of the ruling of the Court of Justice or the General Court alleged to have been infringed, and, second, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 22, and of 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 16).

18      A request that an appeal be allowed to proceed which does not contain the information set out in the preceding paragraph cannot, from the outset, be capable of demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (orders of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 16, and of 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 17).

19      In the present case, as regards the arguments summarised in paragraphs 7 to 14 above, concerning the infringement of essential procedural requirements and of Article 7 of Regulation No 2100/94, it is sufficient to note that the appellant, first, does not identify the paragraphs of the judgment under appeal which it seeks to call into question and, second, merely states the errors of law allegedly committed by the General Court, without explaining to the requisite standard or, in any event, demonstrating how such errors, assuming they are established, raise issues that are significant with respect to the unity, consistency or development of EU law which would justify allowing the appeal to proceed (see, to that effect, order of 24 April 2024, Feed v EUIPO, C-19/24 P, EU:C:2024:369, paragraph 13).

20      Although the appellant identifies the issues allegedly raised by its appeal and indicates, in essence, that they are significant with respect to the unity, consistency or development of EU law, it does not set out the specific reasons why those issues are significant in relation to the criteria relied upon.

21      It follows that the appellant’s request that the appeal be allowed to proceed does not satisfy the requirements set out in paragraph 17 above.

22      In those circumstances, it must be held that that request is not capable of establishing that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

23      In the light of the foregoing considerations, the appeal should not be allowed to proceed.

 Costs

24      Under Article 137 of the Rules of Procedure, applicable to the proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

25      Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

1.      The appeal is not allowed to proceed.

2.      Jaw de Croon Holding BV shall bear its own costs.

Luxembourg, 19 November 2024.

A. Calot Escobar

T. von Danwitz

Registrar

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.