Around with the Nadorcott mandarins

 On October 14, the Court of Justice of the European Union (CJEU) answered the questions raised by the Supreme Court (TS) in the framework of case C-186/18, relating to the community protection of plant varieties .

The procedure has its origin in the exploitation, without having the corresponding license, of a plantation of mandarins of the plant variety Nadorcott (Nadorcott), protected before the Community Plant Variety Office, being the owner of the rights over this variety the company Nador Cott Protection SARL.

In 2011, after unsuccessfully sending the offender two requests for him to cease the exploitation of the plant variety, the Society of Protected Plant Varieties Club (CVVP), an entity that was entrusted with managing the rights related to this plant variety, filed a lawsuit requesting that (i) the infringement of the exclusive rights over the Nadorcott variety be declared; (ii) the offender will be condemned to cease irregular exploitation and, where appropriate, to destroy any plant material of this variety that is in his possession; and (iii) the defendant is ordered to pay compensation in compensation for said exploitation.

The claim was dismissed by the court of first instance on the grounds that, by virtue of Article 96 of Regulation 2100/94 on Community plant variety protection, the three-year statute of limitations for bringing actions against the offending act had expired. However, the Murcia Provincial Court considered that the actions related to the offending acts committed less than three years before the filing of the claim had not prescribed, while those referring to acts committed more than three years before that filing did. they had done. In this sense, the defendant was ordered to pay the amount of 31,199 euros as compensation. Faced with this situation, the offender filed a cassation appeal with the Supreme Court, who decided to suspend the proceedings and submit three preliminary questions to the CJEU.

By its first question, the Supreme Court asks, in essence, whether Article 96 of Regulation 2100/94 should be interpreted in the sense that the three-year limitation period for taking legal action against the offending act begins to run once Community plant variety protection has been granted or from the date on which the owner has knowledge of the act and the identity of the perpetrator of the infringement, regardless of whether the infringing acts have continued until the time of the exercise of the action .

In response to this first question, the CJEU recalls that, in effect, the beginning of the three-year period begins to run when the last of the following situations occurs: the date of granting the plant variety or the date on which the The holder of said protection has had knowledge of the existence of the act and the identity of its author, regardless of when the offending acts have ceased. In this sense, the CJEU recalls that the limitation periods have the mission of guaranteeing security, and an interpretation of Article 96 of Regulation 2100/94 according to which the limitation period begins to run when the contested offending act ceases, would cause a constant insecurity in the perpetrator of the offending acts, given that the holder of community protection, even if he had tolerated the existence of these acts to the point of making the perpetrator believe that he is acting in good faith, could validly exercise legal action without taking into account counts the date each offending act was committed.

On the other hand, the CJEU jointly examines the second and third preliminary questions, by means of which it asks whether all actions that have been exercised more than three years after, on the one hand, have been granted the Community plant variety protection and, on the other, the owner has had knowledge of that set of acts and the identity of their author, regardless of the date of commission of each of the acts that are part of said set, or if Only actions relating to acts committed more than three years prior to the exercise of those actions are to be considered prescribed.

In response to these questions, the CJEU determines that each offending act must be taken into consideration individually, regardless of whether it is repeated, prolonged in time or may be linked to a set of acts. In this sense, the CJEU concludes that only actions related to the set of infringing acts that have been exercised more than three years after, on the one hand, the Community plant variety protection has been finally granted and, on the other hand, should be considered prescribed. another, the holder has had knowledge of the existence of each one of the acts considered individually, and of the identity of its author. Consequently, in this case, the Supreme Court must determine, for each of the offending acts, when the owner had knowledge of each of those acts and the identity of its author.

This ruling is especially relevant given that the CJEU considers that the theory of "continuous acts", according to which the statute of limitations is restarted every time a new act of infringement occurs, is not applicable to plant varieties, which It will prevent the holders of plant varieties from delaying the initiation of actions against infringing acts as these are considered prescribed.