The CPVO, based in Angers, France, administers a system of intellectual property rights, valid throughout the EC, granted for plant varieties. It was established by Regulation 2100/94 and has been operational since April 27th, 1995. The CPVO has received almost 30.000 applications and has granted more than 21.000 titles of protection.
In this first case, Case T-95/06 Federación de Cooperativas Agrarias de la Comunidad Valenciana ("FECOAV") v. CPVO, the Court of First Instance dismissed an action to annul a decision of the CPVO to grant a Community plant variety right.
The CPVO granted a Community plant variety right in the Nadorcott mandarin to a French company. The plaintiff in Case T-95/06, FECOAV, a federation of unions of farming cooperatives in the provinces of Alicante, Castellón and Valencia (Spain), then challenged that decision before the Board of Appeal of the CPVO. The Board of Appeal dismissed that challenge on the ground that the FECOAV did not have locus standi to mount such a challenge because it was not directly and individually concerned by the contested decision within the meaning of Article 68 of Regulation 2100/94 that provides:
Any natural or legal person may appeal, [...], against a decision, addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former. The parties to proceedings may, and the Office shall, be party to the appeal proceedings.
Now that sounds familiar, doesn't it ? Just like Article 230 §4 EC, isn't it ! The Court of First Instance noticed that too, of course, and held that the terms of Article 68 of Regulation 2100/94 must be regarded as being identical to those of Article 230 § 4 EC. As those terms have been specifically interpreted by the Court of Justice (judgment in Case 25/62 Plaumann v. Commission), the Court of First Instance takes the view that care should be taken to provide a consistent interpretation of the concept of a person to whom a measure is ‘of individual concern’ in so far as the terms of the basic regulation do not prevent it.
The Court of First Instance held that FECOAV did not have standing as a professional association to bring this action. It recalled that a professional association set up to protect and represent the interests of its members has standing to bring an action for annulment, firstly, where the association is differentiated by reason of the adverse impact on its own interests as an association, in particular because its position as a negotiator has been affected by the measure of which the annulment is sought, secondly, where the association represents the interests of undertakings which themselves have locus standi and, thirdly, where a legal provision expressly confers upon it a number of powers of a procedural nature (Order in Case T-381/02 Confédération générale des producteurs de lait de brebis et des industriels de Roquefort v. Commission, paragraph 54). It found that none of those conditions were met by FECOAV in this case.
Consequently, the Court of First Instance held that FECOAV lacked standing to bring the action. It also held that individual mandarin growers were not individually concerned by the contested decision and thus also lacked standing to bring the action themselves.
Since 1995, the Board of Appeal has received 76 appeals against CPVO decisions. Only two decisions have been appealed to the Court of First Instance, of which one is still pending (Case T-187/06 Schräder v. OCVV).