The case in question concerned an appeal by Romagnoli Fratelli SpA (“Romagnoli”) to the Court of Justice of European Union (“CJEU”)[1] regarding the General Court’s decision to maintain the cancellation of their plant variety right.
Background
Romagnoli held a Community plant variety right for a variety of potatoes called “Melrose”. In October 2021 the Community Plant Variety Office (“CPVO”) informed Romagnoli that the annual fees were due for payment. Romagnoli did not pay the fee by the set deadline. A reminder was therefore sent in January 2022 giving Romagnoli another month to make the payment. These notifications were sent using “MyPVR” which is the user area of the CPVO. The notifications were not downloaded by Romagnoli which led to the CPVO following up with them in February 2022 by email. As the annual fee was not paid by March 2022, the CPVO issued a notification that the right was cancelled.
A request for restitutio in integrum was filed by Romagnoli in May 2022. They paid the missed annual fee on the same day. However, it was found that the required conditions set in Articles 80(1) and (2) of the Regulation No 2100/94 were not met, which included having to show that there were “particular circumstances” and whilst all due care was taken the deadline was missed. The request was therefore denied.
Romagnoli appealed the decision to the General Court but were unsuccessful.
Decision by the CJEU
The first argument raised by Romagnoli was that Article 65 of Regulation No. 2100/94, which sets out that the CPVO should communicate by way of post, applied in this situation. Thus, whilst the President of the CPVO made the decision allowing communication electronically, any communication made in such a way could not have been taken into account when deciding whether correspondence was served. Romagnoli consequently argued that the correspondence sent in January 2022 was not received. They also stated that the President’s decision restricted the freedom of rights holders to choose the way communications to them are sent.
The CJEU referred to the undisputed paragraph of the General Court’s decision which found that Article 65 did not apply in this matter. They also highlighted that Regulation No 874/2009 recognised the President’s right to make decisions on how electronic communications should be provided. Furthermore, there was no dispute in this matter that Romagnoli chose for the correspondence to be sent to them electronically. The decision by the President of the CPVO set out the rules when a communication sent via “My PVR” was considered to have been delivered, thus as the documents provided by the CPVO showed that the correspondence was sent, the contrary had to be proven by Romagnoli. This ground of appeal was held to be unfounded.
The second ground of appeal focused on breach of duty of care by the CPVO for not providing adequate guidance to Romagnoli about the evidence they had to submit and about the need to employ a lawyer. The CJEU found this argument inadmissible, as it did not relate to the decision of the General Court.
The argument that the General Court did not correctly assess the submitted evidence was found to be inadmissible by the CJEU as well. It was highlighted that the role of the CJEU is to determine whether there were clear distortions of the evidence and facts, not to conduct a new assessment. Furthermore, Romagnoli did not identify any specific evidence that in their opinion was distorted by the General Court. The General Court found the evidence Romagnoli tried to substantiate this argument with to be inadmissible, due to it not being submitted to the CPVO. The CJEU was not able to take this evidence into account either, as the decision was not challenged.
Takeaways
Rights holders should have their own system of keeping track of the their intellectual property maintenance deadlines and should not rely solely on reminders from Registries. Using a professional organisation to manage intellectual property matters is the safest way to ensure that deadlines are monitored and met.
If a deadline is missed and restitutio in integrum is available, adequate time should be spent understanding what needs to be submitted and collecting the relevant evidence. All the relevant evidence should be submitted together with the restitutio in integrum request.
[1] Case C-426/24 P, Romagnoli Fratelli SpA v Community Plant Variety Office (CPVO) (1 August 2025)