You snooze, you lose: CJEU upholds cancellation of plant variety rights for failure to pay fees on time
Jocelyn Bosse
You snooze, you lose: CJEU upholds cancellation of plant variety rights for failure to pay fees on time
Jocelyn Bosse Saturday, August 02, 2025 - Community plant variety office, fees, Jocelyn Bosse, plant varieties, potatoes
Most of us are guilty of ignoring notifications from time to time. But yesterday's judgment from the CJEU confirms that holders of plant variety rights (PVRs) who ignore reminders to pay their annual fees will need very good excuses - with good evidence - to avoid losing their rights forever. This was a lesson learned the hard way for the holders of the now-cancelled PVR for the 'Melrose' potato in Case C‑426/24 P, Romagnoli Fratelli SpA v Community Plant Variety Office (CPVO).
Potato blossoms (sadly, these flowers are no good for boiling, mashing, or sticking in a stew). By Myriams-Fotos via Pixabay.
Background
The 'Melrose' potato is an early maincrop variety. This means that it can be harvested earlier than other maincrop varieties. Maincrop potatoes are larger potatoes, which take longer to mature for harvesting but have the benefit of a longer storage life. 'Melrose' has yellow flesh with light-red skin (see photos here) and a "floury" texture, which makes it good for roasting, baking, mashing, and chips.
The Community PVR for the 'Melrose' potato was granted in 2012, and separate UK rights were retained post-Brexit. Community PVRs for potatoes (Solanum tuberosum) have a maximum duration of 30 years, subject to the payment of annual fees, which currently sit at €380 per variety per year.
At the start of 2017, the CPVO launched a new e-communication tool, called "MyPVR," to simplify the application process, allow for electronic filing of documents, and improve communications (such as notifications about pending fees).
In October 2021, the CPVO sent a notification through MyPVR to the holder of the 'Melrose' potato PVR (hereafter, "the Applicant"), stating that the annual fee was due. This was followed by a formal reminder on MyPVR in January 2022, with a note that the annual fee needed to be paid within one month to avoid the cancellation of the PVR. The CPVO could see that the Applicant still hadn't downloaded the relevant documents from MyPVR, so it sent another reminder in February 2022 - this time by email.
The annual fees were not paid within the prescribed period, so the CPVO cancelled the Community PVR on 21 March 2022.
The Proceedings
On 6 May 2022, the Applicant filed an application for restitutio in integrum (to have the Community PVR restored under Article 80 of Regulation 2100/94) and paid the long-overdue annual fee. The CPVO dismissed the application, since the Applicant didn't show that it had faced unforeseeable circumstances and taken all due care in the circumstances.
Last year, the General Court dismissed the Applicant's appeal against the CPVO's decision to deny the application for restitutio in integrum (T-2/23). The Applicant argued that it had faced unforeseeable circumstances caused by the COVID-19 pandemic: its only employee responsible for correspondence with the CPVO had prolonged absences due to illness over a five month period and it had insufficient financial resources to hire additional staff. The General Court dismissed this argument, as the Applicant gave no specific evidence to the CPVO of the employee's medical leave. The General Court also noted that the MyPVR login details could have been shared with another existing member of staff (or at least, another staff member could have responded to the CPVO's emails). The Applicant also said that it suffered a cyber-attack, but presented no evidence to the CPVO to substantiate this claim. The General Court concluded:
"Accordingly, after having taken into consideration the facts which had been provided to it at the time of the application for restitutio in integrum, the CPVO was right to conclude that the applicant had not proved that it had faced particular circumstances or that it had acted with all due care in view of those circumstances."
The Applicant also argued that it was unlawful to use the MyPVR user area for official notifications of the CPVO. The General Court rejected this argument, finding that notifications or communications could validly be served electronically via the MyPVR user area, provided that the user had activated the option. The Applicant had indeed opted-in for electronic communication via MyPVR.
Before the CJEU, the Applicant raised three grounds of appeal:
- The decision of the President of the CPVO was unlawful;
- Breach of the CPVO’s duty of care;
- An incorrect assessment of the evidence relating to the demonstration of a case of force majeure and of the unforeseeability of the events with which the Applicant had been faced.
The CJEU rejected all three grounds.
The CPVO President had the power to determine the means of the electronic service of documents under Article 79 of Regulation 2100/94, as expressly recognised in Article 64(4) of the Implementing Rules for CPVO Proceedings (Regulation 874/2009). Within this power, the CPVO President's decision of 20 December 2016 concerning electronic communication provided that all electronically available official notifications from the CPVO would be made via MyPVR, if a user has activated the option allowing communication by electronic means.
As for the duty of care, the Applicant argued that the CPVO should have informed the Applicant more precisely of the evidence that would be needed to prove force majeure, as well as the need for legal representation. The CJEU found this argument was inadmissible, since it did not address any element of the General Court's decision.
Finally, the CJEU only has the jurisdiction to carry out a fresh assessment of facts or evidence if they were distorted by the earlier judgment. The Applicant failed to allege any distortion of the evidence before the General Court or any material inaccuracy in its findings. Therefore, this ground was inadmissible.
Final Thoughts
With the CJEU's decision, the matter still isn't entirely resolved: all eyes turn back to the General Court with the ongoing Case T-573/24. But with the ruling that the CPVO's procedures for electronic communications were correctly followed, Romagnoli Fratelli would be very lucky indeed to dig up a good argument to reinstate the 'Melrose' PVR now.
The case might not be the most exciting contribution to European PVR jurisprudence, but it serves as an important reminder that administrative procedures are no small potatoes: the failure to keep an eye on electronic communications and provide sufficient evidence to justify any delay in paying fees can have serious consequences for PVR holders - in this case, the cancellation of the Community PVR almost 20 years before it was due to expire.
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https://ipkitten.blogspot.com/2025/08/you-snooze-you-lose-cjeu-upholds.html