Council Regulation (EC) No 2100/94Show full title

PART THREE U.K. THE COMMUNITY PLANT VARIETY OFFICE

CHAPTER I U.K. GENERAL PROVISIONS

Article 30 U.K. Legal status, sub-offices

1. The Office shall be a body of the Community. It shall have legal personality.

2. In each of the Member States, the Office shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings.

3. The Office shall be represented by its President.

4. With the consent of the Administrative Council referred to in Article 36, the Office may entrust national agencies with the exercise of specific administrative functions of the Office or establish its own sub-offices for that purpose in the Member States, subject to their consent.

Article 31 U.K. Staff

1. The Staff Regulations of Officials of the European Communities, the Conditions of Employment of Other Servants of the European Communities and the rules adopted jointly by the institutions of the European Communities for purposes of the application of those Staff Regulations and Conditions of Employment shall apply to the staff of the Office, without prejudice to the application of Article 47 to the members of the Board of Appeal.

2. Without prejudice to Article 43, the powers conferred on the appointing authority by the Staff Regulations, and by the Conditions of Employment of Other Servants, shall be exercised by the Office in respect of its own staff.

Article 32 U.K. Privileges and immunities

The Protocol on the Privileges and Immunities of the European Communities shall apply to the Office.

Article 33 U.K. Liability

1. The contractual liability of the Office shall be governed by the law applicable to the contract in question.

2. The Court of Justice of the European Communities shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Office.

3. In the case of non-contractual liability, the Office shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its servants in the performance of their duties.

4. The Court of Justice shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 3.

5. The personal liability of its servants towards the Office shall be governed by the provisions laid down in the Staff Regulations or Conditions of Employment applicable to them.

[F1 Article 33a U.K. Access to documents

1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1) shall apply to documents held by the Office.

2. The Administrative Council shall adopt the practical arrangements for implementing Regulation (EC) No 1049/2001 within six months of entry into force of Council Regulation (EC) No 1650/2003 of 18 June 2003 amending Regulation (EC) No 2100/94 on Community plant variety rights (2) .

3. Decisions taken by the Office pursuant to Article 8 of Regulation (EC) No 1049/2001 may form the subject of a complaint to the Ombudsman or of an action before the Court of Justice, under the conditions laid down in Articles 195 and 230 of the Treaty respectively.]

Textual Amendments

F1 Inserted by Council Regulation (EC) No 1650/2003 of 18 June 2003 amending Regulation (EC) No 2100/94 on Community plant variety rights.

Article 34 U.K. Languages

1. The provisions laid down in Regulation No 1 of 15 April 1958 determining the languages to be used in the European Economic Community(3), shall apply regarding the Office.

2. Applications to the Office, the documents required to process such applications and all other papers submitted shall be filed in one of the official languages of the European Communities.

3. Parties to proceedings before the Office as specified in the implementing rules pursuant to Article 114, shall be entitled, to conduct written and oral proceedings in any official language of the European Communities with translation and, in the case of hearings, simultaneous interpretation, at least into any other of the official languages of the European Communities chosen by any other party to proceedings. The exercise of these rights does not imply specific charges for the parties to proceedings.

4. The translation services required for the functioning of the Office are in principle provided by the Translation Centre of the Bodies of the Union.

Article 35 U.K. Decisions of the Office

1. Decisions of the Office shall, provided they do not have to be made by the Board of Appeal pursuant to Article 72, be taken by or under the authority of the President of the Office.

2. Subject to paragraph 1, decisions pursuant to Articles 20, 21, 29, 59, 61, 62, 63, 66 or 100 (2) shall be taken by a Committee of three members of the Office's staff. The qualifications of the members of such Committee, the powers of individual members in the preparatory phase of the decisions, the voting conditions and the role of the President in respect of such Committee shall be determined in the implementing rules pursuant to Article 114. Otherwise, the members of such Committee, in making their decisions, shall not be bound by any instructions.

3. Decisions of the President, other than those specified in paragraph 2, if not taken by the President, may be taken by a member of the Office's staff to whom the power to do so has been delegated pursuant to Article 42 (2) (h).

CHAPTER II U.K. THE ADMINISTRATIVE COUNCIL

Article 36 U.K. Creation and powers

1. An Administrative Council is hereby set up, attached to the Office. In addition to the powers assigned to the Administrative Council by other provisions of this Regulation, or by the provisions referred to in Articles 113 and 114, it shall have the powers in relation to the Office defined below:

(a) It shall advise on matters for which the Office is responsible, or issue general guidelines in this respect.

(b) It shall examine the management report of the President, and shall moreover monitor the Office's activities, on the basis of that examination and any other information obtained.

(c) It shall, on a proposal from the Office, either determine the number of Committees referred to in Article 35, the work allocation and the duration of their respective function, or issue general guidelines in this respect.

(d) It may establish rules on working methods of the Office.

(e) It may issue test guidelines pursuant to Article 56 (2).

2. Moreover the Administrative Council:

• may deliver opinions to, and require information from the Office or the Commission, where it considers that this is necessary,

• may forward to the Commission, with or without amendments, the drafts placed before it pursuant to Article 42 (2) (g), or its own draft amendments to this Regulation, to the provisions referred to in Articles 113 and 114 or to any other rules relating to Community plant variety rights,

• shall be consulted pursuant to Articles 113 (4) and 114 (2),

• shall carry out its functions relating the Office's budget pursuant to Articles 109, 111 and 112.

Article 37 U.K. Composition

1. The Administrative Council shall be composed of one representative of each Member State and one representative of the Commission and their alternates.

2. The members of the Administrative Council may, subject to the provisions of its rules of procedure, be assisted by advisers or experts.

Article 38 U.K. Chairmanship

1. The Administrative Council shall elect a Chairman and a Deputy Chairman from among its members. The Deputy Chairman shall ex officio replace the Chairman in the event of him being prevented from attending to his duties.

2. The terms of office of the Chairman or Deputy Chairman shall expire when their respective membership of the Administrative Council ceases. Without prejudice to this provision, the duration of the terms of office of the Chairman or Deputy Chairman shall be three years, unless another Chairman or Deputy Chairman have been elected before the end of this period. The terms of office shall be renewable.

Article 39 U.K. Meetings

1. Meetings of the Administrative Council shall be convened by its Chairman.

2 The President of the Office shall take part in the deliberations, unless the Administrative Council decides otherwise. He shall not have the right to vote.

3. The Administrative Council shall hold an ordinary meeting once a year; in addition, it shall meet on the initiative of its Chairman or at the request of the Commission or of one-third of the Member States.

4. It shall adopt rules of procedure, and may set up, in accordance with these rules, Committees placed under its authority.

5. The Administrative Council may invite observers to attend its meetings.

6. The secretariat for the Administrative Council shall be provided by the Office.

Article 40 U.K. Place of meetings

The Administrative Council shall meet at the seat of the Commission, or at the location of the Office or of an Examination Office. The details shall be determined in the rules of procedure.

Article 41 U.K. Voting

1. The Administrative Council shall take its decisions, other than those referred to in paragraph 2, by a simple majority of the representatives of the Member States.

2. The majority of three quarters of the representatives of the Member States shall be required for the decisions which the Administrative Council is empowered to take under Articles[F2 12 (1) (b),] 29, 36 (1) (a), (b), (d) and (e), 43, 47, 109 (3) and 112.

3. Each Member State shall have one vote.

4. The decisions of the Administrative Council shall have no binding force within the meaning of Article 189 of the Treaty.

Textual Amendments

F2 Deleted by Council Regulation (EC) No 15/2008 of 20 December 2007 amending Regulation (EC) No 2100/94 as regards the entitlement to file an application for a Community plant variety right.

CHAPTER III U.K. MANAGEMENT OF THE OFFICE

Article 42 U.K. Functions and powers of the President

1. The Office shall be managed by the President.

2. To this end, the President shall have, in particular, the following functions and powers:

(a) The President shall take all necessary steps, including the adoption of internal administrative instructions and the publications of notices, to ensure the functioning of the Office in accordance with the provisions of this Regulation, with those referred to in Articles 113 and 114, or with the rules established, or guidelines issued, by the Administrative Council pursuant to Article 36 (1).

(b) He shall submit a management report to the Commission and Administrative Council each year.

(c) He shall exercise in respect of the staff the powers laid down in Article 31 (2).

(d) He shall submit proposals as referred to in Article 36 (1) (c) and 47 (2).

(e) He shall draw up estimates of the revenue and expenditure of the Office pursuant to Article 109 (1), and shall implement the budget pursuant to Article 110.

(f) He shall supply information as required by the Administrative Council pursuant to Article 36 (2), first indent.

(g) He may place before the Administrative Council draft amendments to this Regulation, to the provisions referred to in Articles 113 and 114 or to any other rules relating to Community plant variety rights.

(h) He may delegate his powers to other members of the Office's staff, and subject to the provisions referred to in Articles 113 and 114.

3. The President shall be assisted by one or more Vice-Presidents. If the President is absent or indisposed, the Vice-President or one of the Vice-Presidents shall take his place in accordance with the procedure laid down in the rules established, or the guidelines issued, by the Administrative Council pursuant to Article 36 (1).

Article 43 U.K. Appointment of senior officials

1. The President of the Office shall be appointed by the Council from a list of candidates which shall be proposed by the Commission after obtaining the opinion of the Administrative Council. Power to dismiss the President shall lie with the Council, acting on a proposal from the Commission after obtaining the opinion of the Administrative Council.

2. The term of office of the President shall not exceed five years. This term of office shall be renewable.

3. The Vice-President or Vice-Presidents of the Office shall be appointed or dismissed as in paragraphs 1 and 2, after consultation of the President.

4. The Council shall exercise disciplinary authority over the officials referred to in paragraphs 1 and 3.

Article 44 U.K. Control of legality

1. The Commission shall control the legality of those acts of the President in respect of which Community law does not provide for any control on legality by another body, and of the acts of the Administrative Council relating to the Office's budget.

2. The Commission shall require that any unlawful act referred to in paragraph 1 be altered or annulled.

3. Member States, any member of the Administrative Council or any other persons directly and personally involved may refer to the Commission any act referred to in paragraph 1, whether express or implied, to examine the legality of that act. Referral shall be made to the Commission within two months of the day on which the party concerned became aware of the act in question. The Commission shall take and communicate a decision within two months.

CHAPTER IV U.K. THE BOARDS OF APPEAL

Article 45 U.K. Establishment and powers

1. There shall be established within the Office one or more Boards of Appeal.

2. The Board or Boards of Appeal shall be responsible for deciding on appeals from the decisions referred to in Article 67.

3. The Board or Boards of Appeal shall be convened as necessary. The number of Boards of Appeal and the work allocation shall be determined in the implementing rules pursuant to Article 114.

Article 46 U.K. Composition of the Boards of Appeal

1. A Board of Appeal shall consist of a Chairman and two other members.

2. The Chairman shall select for each case the other members and their respective alternates from the list of qualified members established pursuant to Article 47 (2).

3. Where the Board of Appeal considers that the nature of the appeal so requires, it may call up to two further members from the aforesaid list for that case.

4. The qualifications required for the members of each Board of Appeal, the powers of individual members in the preparatory phase of the decisions and the voting conditions shall be determined in the implementing rules pursuant to Article 114.

Article 47 U.K. Independence of the members of the Boards of Appeal

1. The Chairmen of the Boards of Appeal and their respective alternates shall be appointed by the Council from a list of candidates for each chairman and each alternate which shall be proposed by the Commission after obtaining the opinion of the Administrative Council. The term of office shall be five years. It shall be renewable.

2. The other members of the Boards of Appeal shall be those selected pursuant to Article 46 (2), from a list of qualified members established on a proposal from the Office, for a term of five years, by the Administrative Council. The list shall be established for a term of five years. This shall be renewable for whole or part of the list.

3. The members of the Board of Appeal shall be independent. In making their decisions they shall not be bound by any instructions.

4. The members of the Boards of Appeal may not be members of the Committees referred to in Article 35 nor perform any other duties in the Office. The function of the members of the Boards of Appeal may be a part-time function.

5. The members of the Boards of Appeal may not be removed from office nor from the list respectively, during the respective term, unless there are serious grounds for such removal and the Court of Justice of the European Communities, on application by the Commission after obtaining the opinion of the Administrative Council takes a decision to this effect.

Article 48 U.K. Exclusion and objection

1. Members of the Boards of Appeal may not take part in any appeal proceedings if they have any personal interest therein, or if they have previously been involved as representatives of one of the parties to proceedings, or if they participated in the decision under appeal.

2. If, for one of the reasons mentioned in paragraph 1 or for any other reason, a member of a Board of Appeal considers that he should not take part in any appeal proceedings, he shall inform the Board of Appeal accordingly.

3. Members of the Boards of Appeal may be objected to by any party to the appeal proceedings for one of the reasons mentioned in paragraph 1, or if suspected of partiality. An objection shall not be admissible if, while being aware of a reason for objecting, the party to the appeal proceedings has taken a procedural step. No objection may be based on the nationality of members.

4. The Boards of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3 without the participation of the member concerned. For the purposes of taking this decision, the member who withdraws or has been objected to shall be replaced in the Board of Appeal by his alternate.

(1)

[F1 OJ L 145, 31.5.2001, p. 43 .]

(2)

[F1 OJ L 245, 29.9.2003, p. 28 .]

(3)

OJ No 17, 6.10.1958, p. 385/58. Regulation as last amended by the 1985 Act of Accession.

Textual Amendments

F1 Inserted by Council Regulation (EC) No 1650/2003 of 18 June 2003 amending Regulation (EC) No 2100/94 on Community plant variety rights.