Commission Regulation (EC) No 874/2009Show full title

Section 2 U.K. Conduct of the technical examination

Article 22 U.K. Decision on test guidelines

1. Upon proposal of the President of the Office, the Administrative Council shall take a decision as to test guidelines. The date of the decision and the species concerned by it shall be published in the Official Gazette referred to in Article 87.

2. In the absence of a decision of the Administrative Council as to test guidelines, the President of the Office may take a provisional decision thereon. The provisional decision shall lapse on the date of the decision of the Administrative Council. Where the provisional decision of the President of the Office deviates from the decision of the Administrative Council, a technical examination started prior to the decision of the Administrative Council shall not be affected The Administrative Council may decide otherwise, if circumstances so dictate.

[F1 3. In the absence of a decision of the Administrative Council, or a provisional decision of the President of the Office as referred to in paragraph 2, as to test guidelines established by the Office, the guidelines per genera and species of the UPOV shall apply. In the absence of such guidelines, national guidelines developed by a competent authority in charge of the technical examination of a plant variety may be used, provided that the President of the Office agrees to such use. The competent authority shall submit those guidelines to the Office, and the Office shall publish them on its website.]

Textual Amendments

F1 Inserted by Commission Implementing Regulation (EU) 2016/1448 of 1 September 2016 amending Regulation (EC) No 874/2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office.

Article 23 U.K. Powers vested in the President of the Office

1. Where the Administrative Council takes a decision on test guidelines, it shall include a power whereby the President of the Office may insert additional characteristics and their expressions in respect of a variety.

F2 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 Deleted by Commission Implementing Regulation (EU) 2016/1448 of 1 September 2016 amending Regulation (EC) No 874/2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office.

Article 24 U.K. Notification by the Office of the Examination Office

[F3 In accordance with Article 55(3) of the basic Regulation, the Office shall transmit to the Examination Office the following documents relating to the variety in electronic format:]

(a)

the application form, the technical questionnaire and each additional document submitted by the applicant containing information needed for the conduct of the technical examination;

(b)

the forms filled out by the applicant pursuant to Article 86 of this Regulation;

(c)

documents relating to an objection based on the contention that the conditions laid down in Articles 7, 8 and 9 of the basic Regulation have not been met.

Textual Amendments

F3 Substituted by Commission Implementing Regulation (EU) 2016/1448 of 1 September 2016 amending Regulation (EC) No 874/2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office.

Article 25 U.K. Cooperation between the Office and the Examination Office

The staff of the Examination Office responsible for the technical examination and the rapporteur designated in accordance with Article 8(1) shall cooperate in all phases of a technical examination. Cooperation shall cover at least the following aspects:

(a)

the monitoring of the conduct of the technical examination, including the inspection of the locations of the test plots and the methods used for the tests by the rapporteur;

(b)

without prejudice to other investigations by the Office, information from the Examination Office about details of any previous disposal of the variety; and

(c)

the submission by the Examination Office to the Office of interim reports on each growing period.

Article 26 U.K. Form of the examination reports

1. The examination report referred to in Article 57 of the basic Regulation shall be signed by the responsible member of the staff of the Examination Office and shall expressly acknowledge the exclusive rights of disposal of the Office under Article 57(4) of that Regulation.

2. The provisions of paragraph 1 shall apply mutatis mutandis to any interim reports to be submitted to the Office. The Examination Office shall issue a copy of each interim report direct to the applicant.

Article 27 U.K. Other examination reports

1. An examination report on the results of any technical examination which has been carried out or is in the process of being carried out for official purposes in a Member State by one of the offices responsible for the species concerned pursuant to Article 55(1) of the basic Regulation may be considered by the Office to constitute a sufficient basis for decision, provided that:

(a) the material submitted for the technical examination has complied, in quantity and quality, with any standards that may have been laid down pursuant to Article 55(4) of the basic Regulation;

[F3 (b) the technical examination has been carried out in a manner consistent with the designation by the Administrative Council pursuant to Article 55(1) of the basic Regulation and with the requirements referred to in Article 13(1a) of this Regulation and has been conducted in accordance with the test guidelines issued and any general instructions given, pursuant to Article 56(2) of the basic Regulation and Articles 22 and 23 of this Regulation;]

(c) the Office has had the opportunity to monitor the conduct of the technical examination concerned; and

(d) where the final report is not immediately available, the interim reports on each growing period are submitted to the Office prior to the examination report.

2. Where the Office does not consider the examination report referred to in paragraph 1 to constitute a sufficient basis for a decision, it may follow the procedure laid down in Article 55 of the basic Regulation, after consulting the applicant and the Examination Office concerned.

3. The Office and each competent national plant variety office in a Member State shall give administrative assistance to the other by making available, upon request, any examination reports on a variety, for the purpose of assessing distinctiveness, uniformity and stability of that variety. A specific amount shall be charged by the Office or the competent national plant variety office for the submission of such a report, such amount being agreed by the offices concerned.

[F3 4. An examination report on the results of a technical examination that has been carried out or is in the process of being carried out for official purposes in a third country or in the territory of a regional organisation that is a member of the UPOV or that is a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights ( ‘ TRIPS ’ ), may be considered by the Office to constitute a sufficient basis for decision, provided that the technical examination complies with the conditions laid down in a written agreement between the Office and the competent authority of such third country or regional organisation. Such conditions shall at least include:

(a) conditions relating to the material, as referred to in point (a) of paragraph 1;

(b) the condition that the technical examination has been conducted in accordance with the test guidelines issued, or general instructions given, pursuant to Article 56(2) of the basic Regulation and Article 22 of this Regulation;

(c) the condition that the Office has had the opportunity to assess the suitability of facilities for carrying out a technical examination for the species concerned in that third country or in the territory of that regional organisation ;

(d) conditions relating to the availability of reports, as laid down in point (d) of paragraph 1;

(e) the condition that the third country has adequate experience in testing the genera or species concerned; and

(f) the condition that the written agreement is concluded with the consent of the Administrative Council.]

[F1 5. The Office may request a competent authority of a third country or of a regional organisation that is a member of the UPOV or is a party to TRIPS to perform the technical examination, provided that a written agreement has been signed between the Office and that competent authority and provided that one of the following conditions applies:

(a) there is no possibility to realise the technical examination for the specific species in an Examination Office in the European Union, and an examination report on the results of a technical examination, referred to in paragraph 4, is not available or is not expected to become available;

(b) an examination report on the results of a technical examination referred to in paragraph 4 is expected to be made available but the conditions established under paragraph 4 to conduct the technical examination are not fulfilled.

6. The written agreement referred to in paragraph 5 shall be concluded with the consent of the Administrative Council, based on the following conditions:

(a) conditions relating to the material, as referred to in point (a) of paragraph 1;

(b) the condition that the technical examination will be conducted in accordance with the test guidelines issued, or general instructions given, pursuant to Article 56(2) of the basic Regulation and Article 22 of this Regulation;

(c) the condition that the Office has had the opportunity to assess the suitability of facilities for carrying out a technical examination for the species concerned in that third country or in the territory of that regional organisation and to monitor the technical examination concerned;

(d) conditions relating to the availability of reports, as laid down in point (d) of paragraph 1;

(e) the condition that the third country has adequate experience in testing the genera or species concerned.]

Textual Amendments

F1 Inserted by Commission Implementing Regulation (EU) 2016/1448 of 1 September 2016 amending Regulation (EC) No 874/2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office.

F3 Substituted by Commission Implementing Regulation (EU) 2016/1448 of 1 September 2016 amending Regulation (EC) No 874/2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office.