Judgment of the General Court (Eighth Chamber) 14 October 2026

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

14 October 2026 ( * )

( Plant varieties – Application for a Community plant variety right for the apple variety Roat – Examination of the facts by the Community Plant Variety Office of its own motion – Article 76 of Council Regulation (EC) No 2100/94 – Technical examination – Distinctness – Test guidelines – Absence of a new characteristic )

In Case T‑770/25,

Adema Srl, established in Appiano (Italy), represented by G. Würtenberger and A. Kockläuner, lawyers,

applicant,

v

Community Plant Variety Office (CPVO), represented by F. Mattina, M. García-Moncó Fuente, M. Fortin and A. Christ, acting as Agents,

defendant,

THE GENERAL COURT (Eighth Chamber),

composed of I. Gâlea, President, T. Tóth and L. Spangsberg Grønfeldt (Rapporteur), Judges,

Registrar: T. Henze, Acting Registrar,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Adema Srl, seeks the annulment of the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 2 September 2025 (Case A048/2023) (‘the contested decision’).

Background to the dispute

2 On 26 January 2011, the applicant applied to the CPVO for a Community plant variety right pursuant to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) (‘the CPVR application’).

3 The plant variety in respect of which the Community right was sought is the apple variety Roat of the species Malus domestica Borkh. (‘the candidate variety’).

4 In the technical questionnaire submitted with the CPVR application, the applicant indicated: ‘Due to the fact that “[Roat]” develops early overcolour, we apply for a new characteristic (TGP5, [Section] 10 UPOV documents)’.

5 The CPVO entrusted the French Variety and Seed Study and Control Group (GEVES), an examination site of the French National Institute of Agricultural Research (INRA) in Angers-Beaucouzé (France), with the responsibility of carrying out the technical examination of the candidate variety, in accordance with Article 55(1) of Regulation No 2100/94 (‘the examination office’).

6 A first technical examination was performed from 2011 to 2016 (‘the first technical examination’). It was concluded on 11 July 2016 with decision R1473, by which the CPVO rejected the CPVR application pursuant to Article 61(2)(b) of Regulation No 2100/94 in conjunction with Article 7 of that regulation. The candidate variety was found to lack distinctness, in particular from the reference variety ‘Jeromine’ (‘the reference variety’).

7 On 31 August 2016, the applicant lodged an appeal with the Board of Appeal of the CPVO against decision R1473 claiming, in essence, that the examination had led to an incorrect assessment of the distinctness of the candidate variety, as the growing conditions in the technical examination of the candidate and reference varieties were not the same.

8 By decision of 22 December 2016, the Rectification Committee of the CPVO set aside decision R1473 following an interlocutory revision pursuant to Article 70(1) of Regulation No 2100/94. It found that the fact that the candidate and reference varieties were grafted on different rootstocks could have had an effect on the results of the technical examination. Therefore, the applicant’s request that the technical examination be repeated with new plant material was granted.

9 As a consequence, a new full technical examination was initiated at the beginning of 2017 (‘the second technical examination’).

10 On 14 April 2023, the examination office issued a final report regarding the second technical examination (‘the negative final report’). The report included the following remarks: ‘10 trees of Roat and 10 trees of Jeromine have been planted in 2019 in testing site la Rétuzière. They have been obtained by … grafting budsticks on M9T337 rootstock: all rootstocks and budwoods were of similar thickness. They have been planted side by side. After two significant fruit productions in 2021 and 2022, the observations show that the fruits and the trees of Jeromine and Roat are not clearly distinguishable …’.

11 The negative final report included an annex with a comparative description of both the candidate variety and the reference variety carried out on the basis of the characteristics listed in Protocol TP/14/2 of the CPVO of 14 March 2006 for distinctness, uniformity and stability tests ( Malus domestica Borkh . – Apple) (‘Protocol TP/14/2’).

12 That report was notified to the applicant on 18 April 2023.

13 On 24 July 2023, the applicant submitted observations on the negative final report. The applicant claimed, inter alia, that, in the first technical questionnaire, it had requested the inclusion of a new distinctive characteristic, namely the ‘early development of the overcolour’ of the candidate variety, and that this element did not appear to have been investigated in detail.

14 By decision of 18 September 2023, the CPVO rejected the CPVR application pursuant to Article 61(2)(b) in conjunction with Article 7 of Regulation No 2100/94.

15 On 30 November 2023, the applicant filed an appeal against that decision before the Board of Appeal of the CPVO.

16 On 16 February 2024, pursuant to Article 70 of Regulation No 2100/94, the Rectification Committee of the CPVO decided not to rectify the decision of 18 September 2023 and to remit the appeal to the Board of Appeal.

17 By the contested decision, the Board of Appeal dismissed the appeal, acknowledging that the ‘early development of the overcolour’ was not among the characteristics listed in Protocol TP/14/2. However, it explained that that circumstance would not have prevented the applicant from introducing such a specific feature of the growing process for consideration in the technical examination of the candidate variety. It further noted that the technical examination of a candidate variety is based on an exhaustive list of characteristics set out in Protocol TP/14/2, which includes characteristic 23, labelled ‘Young fruit: extent of anthocyanin overcolour’. Therefore, if the applicant had wanted the additional characteristic requested in the CPVR application, that is to say, the ‘early development of the overcolour’, to be taken into account, it would have had to demonstrate that it was fundamentally different from characteristic 23. The Board of Appeal concluded that the applicant had failed to identify a specific moment in time at which it could be observed that the colouration process of the candidate variety differed from that of the reference variety and, therefore, that the applicant had failed to demonstrate that the alleged additional characteristic was different from the existing characteristic 23 in Protocol TP/14/2.

Forms of order sought

18 The applicant claims that the Court should:

– annul the contested decision;

– order the CPVO to pay the costs.

19 The CPVO contends that the Court should:

– dismiss the action;

– order the applicant to bear the costs.

Law

20 In support of its action, the applicant raises, in essence, a single plea in law alleging that, in the technical examination of the candidate variety, the CPVO did not sufficiently examine the new characteristic put forward by the applicant, labelled ‘early development of the overcolour’, in breach of Articles 76 and 81 of Regulation No 2100/94 and the principle of sound administration.

21 In particular, the applicant claims that the CPVO had to examine of its own motion whether the requirements stemming from Articles 6 and 7 of Regulation No 2100/94 were fulfilled. In addition, the applicant submits that the President of the CPVO should have used the power under Article 23 of Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Regulation No 2100/94 as regards proceedings before the [CPVO] (OJ 2009 L 251, p. 3) to include additional characteristics of a candidate variety in order to ensure the objectivity of the procedure. Finally, the applicant claims that, since it had indicated a new characteristic in the CPVR application, the CPVO had at least an obligation to inform the applicant that it needed to provide more information with regard to that new characteristic before the CPVO adopted the contested decision. Thus, the Board of Appeal incorrectly held that the applicant was required to make sure that the additional characteristic was included at the stage of the technical examination and that the applicant had failed to identify with precision a specific point in time when the overcolour of the candidate variety was to be observed after flowering. Indeed, the request to consider an additional characteristic was addressed to the CPVO and not to the examination office, and the applicant cannot be blamed for the oversight of the CPVO in examining that request.

22 The CPVO disputes the applicant’s arguments.

23 Pursuant to Article 6 of Regulation No 2100/94, Community plant variety rights are granted for varieties that are distinct, uniform, stable and new. The criteria of distinctness, uniformity and stability are expressed by the acronym DUS.

24 Pursuant to Article 7(1) of Regulation No 2100/94, a variety is deemed to be distinct if it is clearly distinguishable, by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of the application.

25 Pursuant to Article 50(1) of Regulation No 2100/94, ‘the application for a Community plant variety right must contain at least the following: … (f) a technical description of the variety; … (j) details of any other application made in respect of the variety’.

26 The question of whether the criteria of distinctness, uniformity and stability (‘the DUS criteria’) are met in a particular case is tested in the context of a technical examination conducted in accordance with Articles 55 and 56 of Regulation No 2100/94 (judgment of 8 June 2017, Schniga v CPVO , C‑625/15 P, EU:C:2017:435, paragraph 6).

27 Under Article 55(1) of Regulation No 2100/94, ‘where the [CPVO] has not discovered any impediment to the grant of a Community plant variety right on the basis of the examination pursuant to Articles 53 and 54, it shall arrange for the technical examination relating to compliance with the conditions laid down in Articles 7, 8 and 9 to be carried out by the competent office or offices in at least one of the Member States …’.

28 Under Article 56(2) of Regulation No 2100/94, the conduct of any technical examination is to be in accordance with test guidelines issued by the Administrative Council and any instructions given by the CPVO.

29 Such guidelines describe, inter alia, the plant material required for the technical examination, how the tests are to be performed, the methods to be applied, the observations to be made, the grouping of the varieties included in the test and the table of characteristics to be examined. In the technical examination, plants of the candidate variety are cultivated alongside those of the reference varieties which the CPVO and the appointed examination office deem to be those to which the candidate variety comes closest according to the description of the candidate variety in the technical description forming part of the application for grant of a Community plant variety right (see, to that effect, judgment of 8 June 2017, Schniga v CPVO , C‑625/15 P, EU:C:2017:435, paragraph 8).

30 According to Article 76 of Regulation No 2100/94, the CPVO is to make investigations on the facts of its own motion, to the extent that they come under the examination pursuant to, in particular, Article 55 of that regulation. That article also provides that the CPVO is to disregard facts or items of evidence which have not been submitted within the time limit set by the CPVO.

31 Article 76 of Regulation No 2100/94 is an expression of the principle of sound administration to which the CPVO, as a body of the European Union, is subject, and in accordance with which it must examine all the relevant particulars of an application for a Community plant variety right with care and impartiality and gather all the factual and legal information necessary to exercise its discretion. It must furthermore ensure the proper conduct and effectiveness of proceedings which it sets in motion (see judgments of 8 June 2017, Schniga v CPVO , C‑625/15 P, EU:C:2017:435, paragraph 47 and the case-law cited, and of 23 February 2018, Schniga v CPVO (Gala Schnico) , T‑445/16, EU:T:2018:95, paragraph 99 and the case-law cited).

32 At the same time, Article 76 of Regulation No 2100/94 limits the application of the principle that the CPVO is to examine of its own motion the facts to those which are the subject of examination under Articles 54 and 55 of that regulation (judgment of 21 May 2015, Schräder v CPVO , C‑546/12 P, EU:C:2015:332, paragraph 45). It is common ground between the parties that Protocol TP/14/2 lays down the test guidelines for the technical examination of apple varieties of the species Malus domestica Borkh.

33 Section I of Protocol TP/14/2 provides as follows: ‘The protocol describes the technical procedures to be followed in order to meet the [requirements of Regulation No 2100/94] … The technical procedures have been agreed by the Administrative Council and are based on general [International Union for Protection of New Varieties of Plants (UPOV)] Document TG/1/3 and UPOV Guideline TG/14/9 dated [6 April] 2005 for the conduct of tests for Distinctness, Uniformity and Stability. This protocol applies to fruit varieties of Malus domestica Borkh.’

34 It is in the light of all the foregoing considerations that the arguments of the applicant must be examined.

35 In the present case, the applicant submits, in essence, that the examination conducted by the CPVO was incomplete because it failed to take into consideration the ‘early development of the overcolour’ characteristic put forward in the CPVR application when it examined whether the candidate variety met the DUS criteria.

36 First, as set out in paragraph 25 above, the application, whose content is determined pursuant to Article 50(1) of Regulation No 2100/94, is to be considered the act which sets in motion the proceedings before the CPVO.

37 However, contrary to the applicant’s argument, the request in that application that the examination of the candidate variety include a certain characteristic neither obliges the CPVO to include that characteristic in the technical examination of the DUS criteria, nor predetermines the outcome of that examination.

38 Indeed, as set out in paragraphs 23 to 29 above, whether the DUS criteria are met in a given case is assessed in a technical examination which is carried out by the examination office designated according to Article 55 of Regulation No 2100/94 and conducted in accordance with the applicable test guidelines under Article 56(2) thereof.

39 It should also be noted in that regard that the assessment of the characteristics of a plant variety necessarily contains a particular uncertainty due to the nature of the object itself to which the technical examination relates, namely a plant variety, as well as the length of time required to conduct such an examination (judgment of 8 June 2017, Schniga v CPVO , C‑625/15 P, EU:C:2017:435, paragraph 54).

40 In conformity with Article 56(2) of Regulation No 2100/94, the technical examination in the present case was conducted under the test guidelines contained in Protocol TP/14/2, which in turn is based on established UPOV examination principles, as mentioned in paragraph 33 above. The applicant does not dispute the legality or relevance of that protocol.

41 According to Section III.3 of Protocol TP/14/2, ‘the characteristics to be used in DUS tests and preparation of descriptions shall be those referred to in … Annex 1 [to that protocol]’.

42 Section III.5 of Protocol TP/14/2, entitled ‘Trial designs and growing conditions’, provides, inter alia, that ‘observations of the type of bearing and on the young fruit should be made 40 days after flowering’ and that ‘the minimum duration of tests (independent growing cycles) will normally include at least two satisfactory crops of fruit.’

43 In the present case, as indicated in paragraph 17 above, the Board of Appeal acknowledged in the contested decision that the ‘early development of the overcolour’ was put forward by the applicant as a potentially new characteristic in the CPVR application, that is to say, a characteristic not listed in Annex 1 to Protocol TP/14/2. However, as the Board of Appeal also noted, which moreover was not contested by the applicant, the latter had been informed by the CPVO, by email of 8 March 2011, that it was too early at that stage, before the start of the technical examination, to take a decision on the necessity to qualify the overcolouring as a relevant additional characteristic. The Board of Appeal further considered, in paragraph 71 of the contested decision, that the applicant had been informed on 21 March 2013 that ‘for a request such as the one made to succeed a special procedure would have to be followed’.

44 In that regard, contrary to the applicant’s argument, the simple statement that it was too early to determine whether it was necessary to consider the additional characteristic in question cannot be taken as an assurance that the requested new characteristic was necessarily going to be taken into consideration during the technical examination, but must rather be understood as meaning that the request would be considered, where appropriate, at the stage of the technical examination.

45 Second, as indicated in the contested decision, during the second technical examination, the candidate variety was compared to the reference variety on the basis of the characteristics described in Annex 1 to Protocol TP/14/2, including characteristic 23 labelled ‘Young fruit: extent of anthocyanin overcolour’. In that respect, it is apparent from Section III.5 of that protocol that the observations of the type of bearing and on the young fruit should be made 40 days after flowering. That examination did not show a difference between the candidate variety and the reference variety.

46 That finding is consistent with the findings in the negative final report, according to which the fruits and trees of the candidate variety and of the reference variety were not clearly distinguishable after a period of two significant fruit productions, in 2021 and 2022.

47 Thus, contrary to what the applicant argues, the Board of Appeal did set out the reasons why the CPVO could validly consider that the ‘early development of the overcolour’ had not been qualified as a new characteristic.

48 In the absence of any additional technical data to that effect, the CPVO was not under the obligation to seek additional information of its own motion, which might prove that the characteristic put forward by the applicant was essentially different from characteristic 23 of Protocol TP/14/2 and therefore of a particular importance for the distinctness of the candidate variety.

49 Furthermore, the argument that the President of the CPVO should have exercised the Office’s power to add a new characteristic to the technical examination must be rejected.

50 Whilst it is true that Article 23(1) of Regulation No 874/2009 gives the President of the CPVO the power to insert additional characteristics and their expressions to test guidelines, following the completion of the technical examination of a candidate variety (see, to that effect, judgment of 8 June 2017, Schniga v CPVO , C‑625/15 P, EU:C:2017:435, paragraph 61), that argument of the applicant is ineffective as it is based on the incorrect premiss that a ‘new’ characteristic, distinct from the other characteristics assessed, had been omitted by the CPVO in its assessment, thereby affecting the outcome of the evaluation of the DUS criteria for the candidate variety. As concluded in paragraph 47 above, contrary to what the applicant argues, the CPVO considered that the ‘early development of the overcolour’ had not been qualified as a new characteristic.

51 In any event, Section III 6 of Protocol TP/14/2 provides that ‘an applicant may claim either in the Technical Questionnaire or during the test that a candidate [variety] has a characteristic which would be helpful in establishing distinctness. If such a claim is made and is supported by reliable technical data, a special test may be undertaken providing that a technically acceptable test procedure can be devised. Special tests will be undertaken, with the agreement of the President of [the] CPVO, where distinctness is unlikely to be shown using the characters listed in the protocol.’

52 However, no such technical data was submitted at any point in time during the examination process or before the Board of Appeal.

53 Third, had the applicant considered that the applicable test guidelines did not sufficiently take into consideration the ‘early development of the overcolour’ characteristic, it had numerous occasions to submit technical data to support that claim and to ask, where appropriate, that the additional characteristic be included in the technical examination.

54 Indeed, the applicant sent several letters to the CPVO, asking for clarification on certain aspects of the technical examination (as it follows from the correspondence in Annexes B.11, B.12 and B.13), and visited the growing trials during the technical examination. The CPVO sent the applicant interim reports on the results of the technical examination, such as the Interim Report of 15 January 2020 (Annex B.14), the Interim Report of 31 January 2021 (Annex B.15) and the Interim Report of 1 February 2022 (Annex B.16). The third report indicated that ‘no difference [was] observed with Jeromine, on the tree or on the fruits’ and that ‘the observations will continue in 2022.’ Further, it is apparent from the file that the representatives of the applicant also visited the growing site during the technical examination, on 12 August 2021 and 15 September 2021, and that reports on those visits were drawn up and shared with the applicant. Whilst the interim reports and the reports from the visits discuss other characteristics, such as a possible difference in the vigour of the varieties ‘Roat’ and ‘Jeromine’ (Annexes B.17 and B.18), they contain no trace of any comments regarding possible differences in the colouring of the fruit.

55 Thus, the CPVO shared information with the applicant on several occasions during the technical examination, in particular as regards the interim results and its final report. The applicant was given access to the test site and had the possibility to comment on all aspects of the examination. However, as noted above, on none of these occasions did the applicant reiterate its request to have the alleged ‘early development of the overcolour’ assessed.

56 In those circumstances, the Board of Appeal could validly consider that all relevant particularities had been taken into consideration by the CPVO during the technical examination, and that the applicant had been involved in that examination and could comment on how it was conducted.

57 Finally, it is apparent from the case-law that an applicant disputing the result of the examinations must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the decision adopted following those examinations (see judgment of 13 July 2017, Boomkwekerij van Rijn-de Bruyn v CPVO – Artevos (Oksana) , T‑767/14, not published, EU:T:2017:494, paragraph 74 and the case‑law cited). In the present case, the applicant failed to provide any fact or evidence to support the claim that the characteristic put forward as ‘early development of the overcolour’ in the technical questionnaire as part of the CPVR application is different or should be examined separately from characteristic 23 of Protocol TP/14/2.

58 Accordingly, the applicant has failed to prove that there was an infringement of Article 76 of Regulation No 2100/94 by the CPVO.

59 In so far as the applicant claims a breach of the principle of sound administration, it should be recalled, as mentioned in paragraphs 30 and 31 above, that that principle is reflected in Article 76 of Regulation No 2100/94. As it results from paragraphs 35 to 58 above, the CPVO did not infringe Article 76 of that regulation and did not commit any error of assessment when considering that the ‘early development of the overcolour’ had not been qualified as a new characteristic. In any event, the applicant has not brought forward any concrete argument related to the principle of sound administration.

60 As regards the applicant’s allegation of infringement of Articles 6 and 7 of Regulation No 2100/94, that allegation is based on the incorrect premiss that a new characteristic described by the applicant as ‘early development of the overcolour’ should have been taken into consideration during the technical examination, which, as shown in paragraph 47 and 57 above, was not the case. The allegation must therefore be rejected.

61 Lastly, as regards the applicant’s claim of an infringement of Article 81 of Regulation No 2100/94, it should be noted that the applicant advances no separate arguments in that regard.

62 Under Article 81(1) of Regulation No 2100/94, in the absence of procedural provisions in that regulation or in the provisions adopted pursuant to it, the CPVO is to apply the principles of procedural law which are generally recognised in the Member States.

63 In so far as that claim should be understood as referring to the principle of sound administration, it should be rejected for the reasons set out in paragraph 59 above.

64 It follows from all the foregoing considerations that the action must be dismissed in its entirety.

Costs

65 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

66 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the CPVO.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Dismisses the action;

2. Orders Adema Srl to pay the costs.

Delivered in open court in Luxembourg on 14 October 2026.

* Language of the case: English.