b'Provisional Protection not as Strong as Previously ThoughtTHE COURT OF JUSTICE OF THE EUROPEAN UNION SHEDS LIGHT IN CASE C-176/18 ON THE SCOPE OF EU PLANT VARIETY RIGHTS.BY: NGELA MARTNEZ LPEZ T he Court of Justice of the European Union (CJEU) pub-lished on 19 December 2019 the landmark ruling C-176/18 Club de Variedades Vegetales Protegidas vs Adolfo Juan Martnez Sanchs.1This ruling marks a historical turn-ing point insofar the scope of Community Plant Variety Rights (CPVRs), as enshrined in Regulation 2100/94 on Community Plant Variety Rights (hereinafter, Regulation), has been clar-ified. More precisely, the ruling has a substantial impact for title holders of CPVRs, who will now be faced with the limitations established by the CJEU in what concerns the enforcement of their rights.FACTUAL BACKGROUNDAn application for a CPVR for the clementine variety Nadorcott was filed before the Community Plant Variety Office (CPVO) and this application was published in February 1996. The CPVR title for the variety Nadorcott was granted with effect as of November 2005. Between the time of publication of the application and the time of the grant of the title, Martnez Sanchs, who is a grower and proprietor of an agricultural holding, purchased trees of the variety Nadorcott from a Spanish public nursery that was selling them without the consent of his title holder. Sanchs then planted some of these trees on his field in spring 2005 (before the time of the CPVR grant) and some other in spring 2006 (afterngela Martnez Lpezthe time of CPVR grant).Club de Variedades Protegidas (CVVP), the entity respon- The cascade-protection system consists in a sort of hier-sible for enforcing the rights of the title holder of the varietyarchic articulation between a primary protection regime, Nadorcott, initiated an infringement action against Sanchs forconcerning variety constituents, and a secondary protection the planting of trees of the variety Nadorcott and for the sub- regime, concerning harvested material, as laid down in Article sequent harvesting and commercialisation of the fruits in the13 of the Regulation:absence of the authorisation of its title holder.13(1) A Community plant variety right shall have Following a number of court proceedings, the case reachedthe effect that the holder shall be entitled to effect the Spanish Supreme Court, which decided to stay the proceed- the acts set out in paragraph 2. ings and refer three questions to the CJEU for a preliminary ruling. These questions basically boil down to the following two: 13(2) [PRIMARY PROTECTION REGIME] The i) Do growers who plant trees of a protected variety andfollowing acts in respect of variety constituents, harvest the fruit thereof, require the authorisation of the titleor harvested material of the protected variety holder of such protected variety pursuant to Article 13(2) and/ shall require the authorization of the holder: or (3) of the Regulation? (Questions 1 and 2) Production or reproduction (multiplication); [] ii) In cases where the planting of trees takes place beforeSelling or other marketing; []the grant of the plant variety right, but after the publication of the application for such right, are these cases to be regarded as13(3)[SECONDARYPROTECTIONREGIME] infringing Article 13(2) and/or (3) of the Regulation? (Question 3) The provisions of paragraph 2 shall apply in respect of harvested material only if this was FIRST AND SECOND QUESTIONS REFERRED obtained through the unauthorised use of variety Here the CJEU sheds light on the interpretation of Article 13 ofconstituents of the protected variety, and unless the the Regulation and the therein depicted so-called cascade-pro- holder has had reasonable opportunity to exercise tection system.his right in relation to the said variety constituents.18IEUROPEAN SEEDIEUROPEAN-SEED.COM'