Commission Regulation (EC) No. 355/2008 of 21 April 2008 amending Regulation (EC) 1239/95 as regards the use of electronic means of communication in proceedings before the Community Plant Variety Office, European Union (EU)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights ⁽¹⁾, and in particular Article 114 thereof,

After consulting the Administrative Council of the Community Plant Variety Office,

Whereas:

(1)

The rules provided for in Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (2) should be simplified, in particular by allowing the use of electronic means of communication.

(2)

It is appropriate to simplify, on the one hand, the filing of applications, objections or appeals and, on the other, the service of documents by the Community Plant Variety Office (the Office) by permitting the use of electronic means. Moreover, the Office should be given the possibility to issue certificates for Community plant variety rights in electronic form. Publication of information regarding Community plant variety rights should also be possible by electronic means. Finally, electronic storage of files relating to proceedings should be allowed to improve efficiency.

(3)

The President of the Office should be empowered to determine all necessary details with respect to the use of electronic means of communication or storage.

(4)

Regulation (EC) No 1239/95 should therefore be amended accordingly.

(5) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Community Plant Variety Rights,

HAS ADOPTED THIS REGULATION:

Article 1 Regulation (EC) No 1239/95 is amended as follows:

1. in Article 2, paragraph 3 is replaced by the following:

'3. Addresses shall contain all the relevant administrative information, including the name of the State in which the party to proceedings is resident or where his seat or establishment is located. Only one address should preferably be indicated for each party to proceedings; where several addresses are indicated, only the address mentioned first shall be taken into account, except where the party to proceedings designates one of the other addresses as an address for service.

The President of the Office shall determine the details concerning the address including any relevant details of other data communication links.';

2. Article 16 is amended as follows:

(a) paragraph 1 is replaced by the following:

'1. An application for a Community plant variety right shall be filed at the Office, at the national agencies designated or the sub-offices established pursuant to Article 30(4) of the Basic Regulation.

Where the application is filed at the Office it may be filed in paper format or by electronic means. Where it is filed at the national agencies or sub-offices it shall be filed in paper format in duplicate.';

(b) paragraph 3 is replaced by the following:

‘3. The Office shall make available the following forms free of charge:

(a)

an application form and a technical questionnaire, for the purposes of filing an application for a Community plant variety right;

(b)

a form for forwarding the information referred to in paragraph 2, indicating the consequences of any failure of the forwarding.

4. The applicant shall fill in and sign the forms provided for in paragraph 3. Where the application is submitted by electronic means it shall comply with the second subparagraph of Article 57(3) as regards the signature.';

3. Article 28 is replaced by the following:

‘Article 28

Documents filed by parties to proceedings

1. Any documents filed by a party to proceedings shall be submitted by post, personal delivery or electronic means.
2. The details concerning electronic submissions shall be determined by the President of the Office.
1. The date of receipt of any document filed by parties to proceedings shall be deemed to be the date on which a document is in fact received on the premises or in the case of a document filed by electronic means, when the document is received electronically by the Office.
1. With the exception of annexed documents, any documents filed by parties to proceedings must be signed by them or their procedural representative.
2. Where a document is submitted to the Office by electronic means, it shall contain an electronic signature.
2. If a document has not duly been signed, or where a document received is incomplete or illegible, or where the Office has doubts as to the accuracy of the document, the Office shall inform the sender accordingly and shall invite him to submit the original of the document signed in accordance with paragraph 3, or to retransmit a copy of the original, within a time limit of one month.

Where the request is complied with within the period specified, the date of receipt of the signed document

Commission Regulation No. 355/2008 or of the retransmission shall be deemed to be the date of the receipt of the first document. Where the request is not complied with within the period specified, the document shall be deemed not to have been received.

5. Such document must be communicated to other parties to proceedings as well as to the Examination Office concerned, or documents relating to two or more applications for a Community plant variety right or an exploitation right, shall be filed in a sufficient number of copies. Missing copies shall be provided at the expense of the party to the proceedings.

The first subparagraph shall not apply to documents submitted by electronic means.

Article 58

General provisions on service

1. In proceedings before the Office, any service of documents to be made by the Office on a party to proceedings shall take the form of the original document, of an uncertified copy thereof or a computer print-out. Documents emanating from other parties to proceedings may be served in the form of uncertified copies.
2. If a procedural representative has been appointed by one or more parties to proceedings, service shall be made on him in accordance with the provisions of paragraph 1.
3. Service shall be made:

(a) by post in accordance with Article 65;

European Community

(b)

by delivery by hand in accordance with Article 66;

(c)

by public notice in accordance with Article 67; or

(d)

by electronic means or any other technical means in accordance with the second subparagraph of this paragraph.

The President of the Office shall determine the details concerning service by electronic means.

4. Documents or copies thereof containing actions for which service is provided in Article 79 of the Basic Regulation shall be served by registered letter with advice of delivery served by postal means; it can also be served by electronic means to be determined by the President of the Office.’;

1. in Article 65, paragraph 1 is deleted;
2. in Article 67, ‘Article 65(1)’ is replaced by ‘Article 64(4)’;
3. in Article 71, paragraph 2 is replaced by the following:

‘2. If a time limit expires on a day on which there is a general interruption or a subsequent dislocation in the delivery of mail in a Member State or between a Member State and the Office, the time limit shall be extended until the first day following the end of the period of dislocation or interruption in the delivery of mail for parties to proceedings having their domicile or seat or establishment in the Member State concerned or having appointed procedural representatives with a seat in that State. Should the Member State concerned be the State in which the Office is located, this provision shall apply to all parties to proceedings. The duration of the period of interruption or dislocation shall be as stated and communicated by the President of the Office.

As regards documents submitted by electronic means, the first subparagraph shall apply mutatis mutandis in cases where there is an interruption of the connection of the Office to the electronic means of communication.’;

13. in Article 78(3), the following subparagraph is added:

‘The President of the Office shall determine the form

Commission Regulation No. 355/2008 of Registers. The Registers may be maintained in the form of an electronic database.';

14. in Article 79, paragraph 1 is replaced by the following:

'1. Any transfer of Community plant variety rights shall be entered in the Register of Community Plant Variety Rights on production of documentary evidence of the transfer, or of official documents confirming the transfer, or of such extracts from those documents as suffice to establish the transfer. The Office shall retain a copy of those pieces of documentary evidence in its files.

The President of the Office shall determine the form in and the conditions under which those pieces of documentary evidence are to be retained in the files of the Office.';

15. Article 83 is replaced by the following:

'Article 83

Keeping of the files

1. Documents, either in the form of originals or copies relating to proceedings shall be kept in files, a file number being attached to such proceedings, except for those documents relating to the exclusion of, or objection to, members of the Board of Appeal, or to the staff of the Office or the Examination Office concerned, which shall be kept separately.
2. The Office shall keep one copy of the file referred to in paragraph 1 (file copy) which shall be considered the true and complete copy of the file. The Examination Office may keep a copy of the documents relating to such proceedings (examination copy), but shall ensure delivery of those originals which the Office does not hold.

1. The original documents filed by parties to the proceedings which form the basis of any electronic files may be disposed of after a period following their reception by the Office.
2. The President of the Office shall determine the details as to the form in which the files to be kept, the period during which files are to be kept and the period referred to in paragraph 3.';

16. in Article 87 the following paragraph 3 is added:

'3. The President of the Office shall determine the manner in which the Official Gazette is published.';

17.Article 91 is amended as follows:

paragraph 1 is replaced by the following:

'1. Inspection of files under Article 91(1) of the Basic Regulation shall be of copies of the files issued by the Office exclusively for that purpose.'.

Article 2

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

It shall apply from 1 January 2009.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 21 April 2008.

For the Commission

Androulla VASSILIOU

Member of the Commission