## Facts

- A Community plant variety right (CPVR) was sought and later granted for the mandarin variety “Nadorcott” under Council Regulation (EC) No. 2100/94.
- The CPVR application was published in February 1996; the CPVR took effect in November 2005 and was published as granted in February 2006.
- A grower purchased Nadorcott trees from a Spanish public nursery and planted some trees in spring 2005 (after application publication but before the right took effect) and additional trees in spring 2006 (after the right took effect).
- The grower harvested and marketed fruit from the planted trees without authorization from the CPVR holder.
- In national proceedings, the rights-holder representative sought relief for unauthorized planting and subsequent fruit commercialization.
- The Spanish Supreme Court referred questions to the Court of Justice of the European Union (CJEU) on interpretation of Regulation 2100/94, chiefly Article 13 (scope of exclusive rights) and Article 95 (provisional protection).
- The fruit at issue was treated as not being used, and not ordinarily suitable for use, as propagating material.

## Issues

1. Whether harvesting fruit from protected trees constitutes “production or reproduction” of “variety constituents” requiring authorization under Article 13(2) of Regulation 2100/94.
2. Whether Article 13(2) extends to acts concerning harvested material (including harvesting and marketing fruit), or is limited to acts concerning variety constituents (propagating material).
3. How Articles 13(3) (rights in harvested material) and 95 (provisional protection between publication and grant) apply where trees were planted after publication of the application but before the CPVR took effect, and fruit was later harvested and marketed.

## Decision

- The CJEU interpreted Article 13(2) as covering only acts concerning “variety constituents” (propagating material) as such, not harvested material.
- Harvesting fruit, where the fruit is not intended or suitable for propagation, is not “production or reproduction” of variety constituents within Article 13(2).
- Fruit is “harvested material”; protection for harvested material arises, if at all, under Article 13(3) and only under its conditions.
- Article 13(3) applies only when (i) harvested material was obtained through unauthorized use of variety constituents and (ii) the right holder lacked a reasonable opportunity to exercise rights over the variety constituents.
- Acts carried out after publication of the application but before the CPVR took effect do not become fully infringing retroactively once the right takes effect; instead, Article 95 provides the applicant a claim “at least to equitable remuneration” for that provisional period.
- Unauthorized planting after the CPVR took effect can constitute an infringing act under Article 13(2) because it concerns propagating material.

## Legal Principles

- Article 13(2) of Regulation 2100/94 grants exclusive rights over specified acts concerning “variety constituents” (propagating material) and does not, by itself, regulate harvested material.
- Harvested fruit from protected plants is “harvested material”; harvesting and marketing such fruit do not fall under Article 13(2) merely because the plants are protected, where the fruit is not used for propagation.
- Article 13(3) provides derivative protection for harvested material only when harvested material results from unauthorized use of propagating material and the right holder lacked a reasonable opportunity to enforce at the propagating-material stage.
- Regulation 2100/94 establishes a time-limited provisional regime: between application publication and grant/effectiveness, Article 95 supplies a remuneration claim rather than full infringement remedies.
- Interpreting Article 13(2) to cover harvested material would collapse the Regulation’s staged structure and deprive Article 13(3) of independent function.

## Conclusion

The CJEU clarified that CPVR holders’ core exclusive rights under Article 13(2) are confined to propagating material, while control over fruit as harvested material is conditional under Article 13(3), and conduct occurring after application publication but before the right takes effect is addressed primarily through Article 95 equitable remuneration rather than retroactive infringement liability.


Club de Variedades Vegetales Protegidas v. Martínez Sanchís, Case C-176/18 (C.J.E.U. 2019)