Order of 3 Mar 2020, C-886/19 (Pink Lady America v CPVO), ECLI:EU:C:2020:146.

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

3 March 2020 (*)

(Appeal — Protection of plant varieties — Determination as to whether appeals should be allowed to proceed — Article 170b of the Rules of Procedure of the Court of Justice — Request failing to demonstrate that an issue is significant with respect to the unity, consistency or development of Union law — Refusal to allow the appeal to proceed)

In Case C-886/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 December 2019,

Pink Lady America LLC, established in Yakima, Washington (United States), represented initially by R. Manno, and subsequently by R. Manno and S. Sabino, avocats,

appellant,

the other parties to the proceedings being:

Community Plant Variety Office (CPVO),

defendant at first instance,

Western Australian Agriculture Authority (WAAA), established in South Perth (Australia), represented by T. Bouvet and L. Romestant, avocats,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, L.S. Rossi and F. Biltgen (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, Pink Lady America asks the Court of Justice to set aside the judgment of the General Court of the European Union of 24 September 2019, Pink Lady America v CPVO — WAAA (Cripps Pink) (T-112/18, not published, EU:T:2019:380), 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 14 September 2017 (Case A 007/2016), relating to nullity proceedings between the WAAA and Pink Lady America.

 The request that the appeal be allowed to proceed

2        Pursuant to 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 CPVO is not to proceed unless the Court of Justice first decides that it should be allowed to do so.

3        In accordance with the third paragraph of Article 58a of that statute, 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, where it raises an issue that is significant with respect to the unity, consistency or development of Union law.

4        Under Article 170a(1) of the Rules of Procedure of the Court, 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 Union law and containing all the information necessary to enable the Court to rule on that request.

5        In accordance with Article 170b(3) of those rules, the Court’s decision on the request that the appeal be allowed to proceed is to take the form of a reasoned order.

6        In support of its request that the appeal be allowed to proceed, the appellant submits that the appeal raises issues which are significant with respect to the unity, consistency and development of Union law that justify the appeal being allowed to proceed.

7        In the first place, as regards the criterion concerning the unity of Union law, the appellant complains, first, that the General Court misapplied Article 10 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) by finding that, despite evidence of intense commercial exploitation of the Cripps Pink apple tree variety in Australia since 1985, the novelty of that plant variety was not called into question, given that other evidence served to demonstrate that the disposals of specimens of that variety had been made ‘for trial and evaluation purposes’. In so doing, the General Court misinterpreted Article 10(2) of that regulation.

8        Next, the appellant submits that the judgment under appeal applies the General Court’s case-law selectively since the General Court noted that a disposal of a plant variety for testing purposes does not call into question novelty within the meaning of Article 10 of Regulation No 2100/94, omitting, however, to examine whether the conditions for the application of such an exception were satisfied in the case of the plant variety the Community protection of which the appellant challenges.

9        Finally, the appellant maintains that, by ruling that the CPVO has no discretion to admit facts and evidence submitted outside the time limits that it set in the context of proceedings, the General Court significantly undermined the public interest in the novelty criterion of a plant.

10      In the second place, as regards the criterion relating to the consistency of Union law, the appellant complains that the General Court based its findings on an incorrect interpretation of its own case-law, by considering that, first, the disposal by the breeder of the material of the protected variety, in the absence of an express reference to authorisation for commercial use, did not amount to consent for the purposes of commercial exploitation and, second, the scale of the exploitation of the variety at issue was not a factor demonstrating the commercial intent of such an exploitation.

11      In the third place, as regards the criterion relating to the development of Union law, the appellant notes the unprecedented nature of the General Court’s interpretation of Article 53a(4) of Regulation No 874/2009 in the judgment under appeal. That interpretation is all the more significant because the General Court took a restrictive approach in relation to that provision, denying the CPVO any discretion to admit facts and evidence. Consequently, the appeal raises a new point of law.

12      As a preliminary point, it must be noted 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 Union law (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 13 and the case-law cited).

13      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 mechanism provided for in Article 58a of that statute whereby the Court determines whether an appeal should be allowed to proceed seeks to restrict review by the Court to issues that are significant with respect to the unity, consistency and development of Union 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 (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 14 and the case-law cited).

14      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 Union 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 Union law or the case-law that has been infringed by the judgment 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 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 secondly, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of Union law (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

15      A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph of the present order 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 Union law that justifies the appeal being allowed to proceed (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).

16      In this case, as regards, in the first place, the arguments relied on in paragraphs 7 and 9 of the present order, it must be noted that the appellant must demonstrate that, independently of the issues of law invoked in its appeal, that appeal raises one or more issues that are significant with respect to the unity, consistency and development of Union law, the scope of this criterion going beyond the judgment under appeal and, ultimately, its appeal (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 18).

17      However, such a demonstration does not emerge from such arguments. The appellant seeks, ultimately, a new assessment of the facts and evidence which it submitted for assessment by the General Court. However, an argument which seeks to call into question the General Court’s assessment of the facts or evidence cannot raise an issue that is significant with respect to the unity, consistency or development of Union law (see, to that effect, order of 10 October 2019, KID-Systeme v EUIPO, C-577/19 P, not published, EU:C:2019:854, paragraph 20).

18      As regards, in the second place, the arguments set out in paragraphs 8 and 10 of the present order, alleging that the General Court departed from the relevant case-law, it must be noted that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, such arguments are not, in themselves, sufficient to establish that the present appeal raises an issue that is significant with respect to the unity, consistency or development of Union law, the appellant having to comply to that end with all the requirements set out in paragraph 14 of the present order (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 17). Further, in the present case, the appellant, without complying with such requirements, merely asserts that the General Court failed to comply with its own case-law.

19      As regards, in the third place, the argument set out in paragraph 11 of the present order, according to which the appeal raises a new point of law, it must be borne in mind that that situation does not mean, however, that that issue is necessarily one of significance with respect to the development of Union law, and the appellant remains bound to demonstrate that significance by providing detailed information not only on the novelty of that issue, but also on the reasons why that issue is significant in relation to the development of Union law (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 19). In the present case, the appellant has failed to provide such information.

20      In any event, by its argument relating to the taking into account of the documents submitted within the time limits prescribed by the CPVO, the appellant calls into question the General Court’s factual assessments, disputing the date on which those documents were submitted. As is apparent from the case-law referred to in paragraph 17 of this order, such an argument cannot raise an issue that is significant with respect to the unity, consistency or development of Union law.

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

22      In the light of all the foregoing, the appeal should not be allowed to proceed.

 Costs

23      Under Article 137 of the Rules of Procedure, applicable to 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.

24      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.      Pink Lady America LLC shall bear its own costs.

Luxembourg, 3 March 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.