b'THIRD QUESTION REFERRED PRACTICAL SIGNIFICANCEBy the third question, the Spanish Supreme Court is essentiallyThe CJEU has made it clear that, whereas the definite protection asking whether Article 13(3) of the Regulation must be inter- covers the right to prohibit or authorise the acts referred to in preted as meaning that the fruit of a plant variety, which is notArticle 13(2), as well as the right to claim compensation, the pro-liable to be used as propagating material, is to be regarded asvisional protection is weaker and concerns only the possibility having been obtained through the unauthorised use of varietyof claiming compensation. The date of grant of a CPVR title will constituents of that plant variety, where those variety constitu- thus become determinant in infringement proceedings.ents were propagated and sold to a farmer in the period betweenMetaphorically speaking, this finding of the CJEU trans-the publication of the application for CPVR and the actual grantlates into a situation where breeders have their hands tied of the CPVR title. To put it simply, the CJEU is being requestedduring the provisional period of protection prior to the grant to clarify the extent of the provisional period protection as con- of the CPVR title for which they have applied. This period can cerning acts carried out prior to the grant of the CPVR title pur- in practice last a considerable number of years, lapse of time suant to Article 95 of the Regulation, by means of interpretingduring which an applicant for a CPVR is not legitimised to permit the interface between the said article and Article 13(3).or prohibit acts such as, for example, the propagation of the The CJEU begins by marking a distinction between theconcerned plant variety for which protection has been applied definite protection recognised in Article 94 to granted CPVR(nor can he/she enforce such rights retroactively once the CPVR titles, and the provisional protection period (running from thetitle is granted). publication of the application for CPVR but prior to the grant ofBreeders awaiting the grant of the CPVR title for a pending the title thereof) as embodied in Article 95. These articles readapplication may potentially be placed in a position where they as follows: need to re-evaluate their marketing strategies, including the Article 94(1)(a) [Infringement]:licensing contracts entered into with growers. The finding of the Whosoever effects one of the acts set out in ArticleCJEU leaves indeed an open door for farmers to purchase and 13 (2) without being entitled to do so, in respectpropagate a given plant variety prior to the grant of the title of of a variety for which a Community plant varietyprotection for such, and to accordingly avoid liability for their right has been granted;  may be sued by thesubsequent harvesting activities. 4holder to enjoin such infringement or to payIn any case, what the applicant is however entitled to reasonable compensation or both. demand, is a reasonable compensation for those acts carried Article 95 [Acts prior to grant of Community plantout prior to the CPVR grant (that would have otherwise been variety rights]: forbidden if conducted after such grant). At the least, a minimum Theholdermayrequirereasonablesafety net in pecuniary terms is guaranteed for the applicants. compensation from any person who has, in the time between publication of the applicationCONCLUSIONSfor a Community plant variety right andThe CJEU preliminary ruling in C-176/18, clarifying the scope grant thereof, effected an act that he would beof CPVR, brings forth some significant legal implications leading prohibited from performing subsequent thereto. to a certainly daunting legal landscape for breeders. In the first place, a distinction is being marked between, According to the CJEU, Article 95 refers only to the possi- on the one hand, the enforcement of rights relating to variety bility for the title holder to claim reasonable compensation and,constituents and, on the other hand, that relating to harvested as opposed to Article 94, does not confer on him/her any furthermaterial. In the case of harvested material, title holders will right such as the right to authorise or prohibit the use of varietyonly have the right to authorise or prohibit acts relating to such constituents of that plant variety. Hence, the title holder cannotwhere two specific conditions are met, these being onerous to prohibit performance of any of the acts referred to in Articlefulfil in practice. 13(2) on the ground that no authorisation has been given forIn the second place, another distinction has been estab-such performance.lished between the provisional and the definite protection For instance, in the case at hand, the CJEU concludes thatperiod, where the former must be regarded as a merely com-those acts of propagation and sale of trees by the nursery topensatory mechanism whilst the latter constitutes a proper Sanchs that were done during the provisional period of protec- enforcement remedy. tion cannot be regarded as unauthorised use within the mean- Applicants for CPVRs and, broadly speaking, breeders, ing of Article 13(3), because no obligation of prior authorisationshould be aware of the referred distinctions as established by was due in the first place. Consequently, fruit harvested fromthe CJEU and are thus recommended to bear in mind such when those trees cannot be regarded as having been obtained throughadopting legal and marketing decisions.unauthorised use, even if harvested after the grant of the CPVR.It is from the time of the grant of a CPVR title of protec-tion onwards, when the title holder may assert his/her rights in accordance with Article 13(3) in relation to those variety constituents that are being propagated and sold without his authorisation. 1)Club de Variedades Vegetales Protegidas v Adolfo Juan Martnez Sanchs (C176/18) , ECLI:EU:C:2019:1131,available at https://bit.ly/2xUJBHF .2)Crespo Velasco, Adrin, Plant variety rights: referrals to the CJEU stir up questions with farreaching consequences. (2019). Journal of Intellectual Property Law and Practice, Volume 14, Issue 3, Pages 197205, Oxford University Press, https://doi.org/10.1093/jiplp/jpy172 .3)CIOPORA Position on the Scope of the Right, CIOPORA General Meeting. (2014). Available at https://bit.ly/2x5TmD1 . It is also interesting to read the Legal Opinion of CIOPORA, available at https://bit.ly/2RagwPu . In this opinion, predating the publication of the ruling, the questions referred in the CJEU case at issue C176/18 (2018) are addressed and a different outcome is advocated for.4) Ibid., Note 1.20IEUROPEAN SEEDIEUROPEAN-SEED.COM'