Legal provisions of COM(2023)221 - Unitary supplementary protection certificate for plant protection products - Main contents
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| dossier | COM(2023)221 - Unitary supplementary protection certificate for plant protection products. |
|---|---|
| document | COM(2023)221  |
| date | April 27, 2023 |
Article 1
Subject matter
This Regulation lays down rules on the unitary supplementary protection certificate (‘unitary certificate’) for plant protection products protected by a European patent with unitary effect and subject, prior to being placed on the market as a plant protection product, to an administrative authorisation procedure as laid down in Regulation (EC) No 1107/2009 of the European Parliament and of the Council25.
Article 2
Definitions
For the purposes of this Regulation, the following definitions shall apply:
(1) ‘plant protection products’ means active substances and preparations containing one or more active substances, put up in the form in which they are supplied to the user, intended to:
(a) protect plants or plant products against all harmful organisms or prevent the action of such organisms, in so far as such substances or preparations are not otherwise defined below;
(b) influence the life processes of plants, other than as a nutrient (e.g. plant growth regulators);
(c) preserve plant products, in so far as such substances or products are not subject to special Council or Commission provisions on preservatives;
(d) destroy undesirable plants;
(e) destroy parts of plants, check or prevent undesirable growth of plants;
(2) ‘substances’ means chemical elements and their compounds, as they occur naturally or by manufacture, including any impurity inevitably resulting from the manufacturing process;
(3) ‘active substances’ means substances or micro-organisms including viruses, having general or specific action:
(a) against harmful organisms;
(b) or on plants, parts of plants or plant products;
(4) ‘preparations’ means mixtures or solutions composed of two or more substances, of which at least one is an active substance, intended for use as plant protection products;
(5) ‘plants’ means live plants and live parts of plants, including fresh fruit and seeds;
(6) ‘plant products’ means products in the unprocessed state or having undergone only simple preparation such as milling, drying or pressing, derived from plants, but excluding plants themselves;
(7) ‘harmful organisms’ means pests of plants or plant products belonging to the animal or plant kingdom, and also viruses, bacteria and mycoplasmas and other pathogens;
(8) ‘product’ means the active substance or combination of active substances of a plant protection product;
(9) European patent means a patent granted by the European Patent Office (‘EPO’) under the rules and procedures laid down in the European Patent Convention26 ('EPC');
(10) ‘unitary patent’ means a European patent which benefits from unitary effect in the Member States participating in the enhanced cooperation laid down in Regulation (EU) No 1257/2012;
(11) basic patent means a unitary patent which protects a product as such, a preparation, a process to obtain a product or an application of a product, and which is designated by its holder for the purpose of the procedure for grant of a unitary certificate;
(12) centralised application means an application made before the European Union Intellectual Property Office (‘the Office’) pursuant to Chapter III of Regulation [COM(2023) 223] with a view to the grant of certificates, for the product identified in the application, in the designated Member States;
(13) ‘competent national authority’ means the national authority that is competent, in a given Member State, for the grant of certificates and for the rejection of applications for certificates.
Article 3
Conditions for obtaining a unitary certificate
1. A unitary certificate shall be granted by the Office on the basis of a basic patent if, in each of the Member States in which that basic patent has unitary effect, at the date of the application, all of the following conditions are fulfilled:
(a) the product is protected by that basic patent in force;
(b) a valid authorisation to place the product on the market as a plant protection product has been granted in accordance with Regulation (EC) No 1107/2009;
(c) the product has not already been the subject of a certificate, nor of a unitary certificate;
(d) the authorisation referred to in point (b) is the first authorisation to place the product on the market as a plan protection product.
2. The holder of more than one patent for the same product shall not be granted more than one certificate or unitary certificate for that product for any given Member State.
Where two or more applications, whether national or centralised applications for certificates, or applications for unitary certificates, concerning the same product and submitted by two or more holders of different patents are pending for a given Member State, one certificate or unitary certificate for that product may be granted to each of those holders, where they are not economically linked, by a competent national authority or by the Office, as applicable.
3. A unitary certificate shall also be granted for a given plant protection product if the following conditions are fulfilled:
(a) at the date of the application, in each of the Member States in which the basic patent has unitary effect, an authorisation to place the product on the market as a plant protection product has been applied for in accordance with Regulation (EC) No 1107/2009, but an authorisation has not yet been granted in at least one of these Member States;
(b) before the examination opinion is adopted, valid authorisations have been granted in each of the Member States in which the basic patent has unitary effect.
4. Where the condition set out in paragraph 3, point (a), is fulfilled, the examination opinion shall not be adopted earlier than 18 months after the application was filed.
5. By way of derogation from paragraph 3, where only the condition set out in paragraph 3, point (a), is fulfilled in respect of a Member State in which the basic patent has unitary effect, a unitary certificate shall be granted, but shall not have effect in that Member State.
Where a unitary certificate is granted in accordance with the first subparagraph, the applicant may submit to the Office a marketing authorisation subsequently granted in that Member State before the expiry of the basic patent, together with a request for the effect of the unitary certificate to resume in that Member State. The Office shall assess whether the conditions set out in paragraph 1 are fulfilled in respect of that Member State, and shall issue a decision on whether the effect shall resume.
Article 4
Scope of the protection
Within the limits of the protection conferred by the basic patent, the protection conferred by a unitary certificate shall extend only to the product covered, in each of the Member States in which that basic patent has unitary effect, by an authorisation to place the corresponding plant protection product on the market and for any use of the product as a plant protection product that has been authorised before the expiry of the unitary certificate.
Article 5
Effects of the unitary certificate
1. The unitary certificate shall confer the same rights as conferred by the basic patent and shall be subject to the same limitations and the same obligations, in all Member States in which the basic patent has unitary effect.
2. A unitary certificate shall have a unitary character. It shall provide uniform protection and shall have equal effect in all Member States in which the basic patent has unitary effect. The unitary certificate may only be limited, transferred or revoked, or lapse, in respect of all those Member States.
Article 6
Entitlement to the unitary certificate
1. The unitary certificate shall be granted to the holder of the basic patent or to the successor in title of that holder.
2. Notwithstanding paragraph 1, where a basic patent has been granted in respect of a product that is the subject of an authorisation held by a third party, a unitary certificate for that product shall not be granted to the holder of the basic patent without the consent of that third party.
Article 7
The unitary certificate as an object of property
A unitary certificate or an application for a unitary certificate as an object of property shall be treated in its entirety, in each Member State in which the basic patent has unitary effect, in accordance with the national law applicable to the basic patent as an object of property.
Article 8
Application for a unitary certificate
1. The application for a unitary certificate shall be lodged within 6 months of the date on which the first authorisation referred to in Article 3(1), point (b), to place the product on the market as a plant protection product was granted in one of the Member States in which the basic patent has unitary effect.
2. Notwithstanding paragraph 1, where an authorisation to place the product on the market are granted in a Member State in which the basic patent has unitary effect, before unitary effect is attributed to the basic patent, the application for a unitary certificate shall be lodged within 6 months of the date on which unitary effect is attributed to the basic patent.
Article 9
Content of the application for a unitary certificate
1. The application for a unitary certificate shall contain the following:
(a) a request for the grant of a unitary certificate, stating the following information:
(i) the name and address of the applicant;
(ii) if the applicant has appointed a representative, the name and address of that representative;
(iii) the number of the basic patent and the title of the invention;
(iv) the number and date of the first authorisation to place the product on the market, as referred to in Article 3(1), point (b), and, if this authorisation is not the first authorisation for placing the product on the market in the Union, the number and date of that authorisation;
(a) a copy of the authorisation to place the product on the market, as referred to in Article 3(1), point (b), in which the product is identified, containing in particular the number and date of the authorisation and the summary of the product characteristics listed in Part A, Section 1, points 1.1 to 1.7, of Commission Regulation 283/201327 or Part B, Section 1, points 1.1 to 1.4.3, of that Regulation or in equivalent national laws of the Member State in which the application was lodged;
(b) where the authorisation referred to in point (b) is not the first authorisation for placing the product on the market as a medicinal product in the Union, information regarding the identity of the product thus authorised and the legal provision under which the authorisation procedure took place, together with a copy of the notice publishing the authorisation in the appropriate official publication or, in the absence of such a notice, any other document proving that the authorisation has been issued, the date on which it was issued and the identity of the product authorised.
2. The application referred to in this Article shall be filed by using a specific application form.
The Commission is empowered to adopt implementing acts laying down rules on the application form to be used. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50.
Article 10
Lodging of an application for a unitary certificate
The application for a unitary certificate shall be lodged with the Office.
Article 11
Examination of the admissibility of a centralised application for a unitary certificate
1. The Office shall examine the following:
(a) whether the application for a unitary certificate complies with Article 9;
(b) whether the application complies with Article 8;
(c) whether the application fee referred to in Article 29(1) has been paid within the prescribed period.
2. Where the centralised application does not satisfy the requirements referred to in paragraph 1, the Office shall request the applicant to take the measures necessary to satisfy those requirements, and shall set a deadline for such compliance.
3. Where the fee referred to in paragraph 1, point (c), has not been paid or has not been paid in full, the Office shall inform the applicant accordingly.
4. If the applicant does not satisfy the requirements referred to in paragraph 1 within the deadline referred to in paragraph 2, the Office shall reject the application for a unitary certificate.
Article 12
Publication of the application
If the application for a unitary certificate complies with Article 11(1), the Office shall publish the application in the Register.
Article 13
Examination of the application for a unitary certificate
1. The Office shall assess the application on the basis of all the conditions in Article 3(1), for all Member States in which the basic patent has unitary effect.
2. Where the application for a unitary certificate and the product to which it relates comply with Article 3(1) for each of the Member States referred to in paragraph 1, the Office shall issue a reasoned positive examination opinion in respect of the grant of a unitary certificate. The Office shall notify that opinion to the applicant.
3. Where the application for a unitary certificate and the product to which it relates does not comply with Article 3(1) in respect of one or more of those Member States, the Office shall issue a reasoned negative examination opinion on the grant of a unitary certificate. The Office shall notify that opinion to the applicant.
4. The examination opinion shall be translated in the official languages of all Member States in which the basic patent has unitary effect. The Office may use verified machine translation to that effect.
5. The Commission is empowered to adopt implementing acts laying down rules on procedures relating to the filing, and procedures regarding the way in which examination panels examine applications for unitary certificates and prepare examination opinions, as well as the issuance of examination opinions by the Office. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50.
Article 14
Observations by third parties
1. Any natural or legal person may submit written observations to the Office concerning the eligibility for supplementary protection of the product to which the application relates, in one or more of the Member States in which the basic patent has unitary effect.
2. A natural or legal person that has submitted the written observations in accordance with paragraph 1 shall not be a party to the proceedings.
3. Third party observations shall be submitted within 3 months after publication of the application in the Register.
4. Any observations by a third party shall be submitted in writing in one of the official languages of the Union and state the grounds on which they are based.
5. Any observations by a third party shall be notified to the applicant. The applicant may comment on the observations within a time limit set by the Office.
Article 15
Opposition
1. Within a period of 2 months following the publication of the examination opinion in respect of an application for a unitary certificate, any person (‘opponent’) may file with the Office a notice of opposition to that opinion.
2. Opposition may only be filed on the grounds that one or more of the conditions set out in Article 3 are not fulfilled for one or more of the Member States in which the basic patent has unitary effect.
3. Opposition shall be filed in writing, and shall specify the grounds on which it is made. It shall not be considered as duly filed until the opposition fee has been paid.
4. The notice of opposition shall contain:
(a) the references of the unitary certificate application against which opposition is filed, the name of its holder, and the identification of the product;
(b) the particulars of the opponent and, where applicable, of its representative;
(c) a statement of the extent to which the examination opinion is opposed, and of the grounds on which the opposition is based.
5. The opposition shall be examined by an opposition panel set up by the Office in accordance with the rules applicable to examination panels as referred to in Article 17. However, the opposition panel shall not include any examiner previously involved in the examination panel that examined the unitary certificate application.
6. If the opposition panel notes that the notice of opposition does not comply with paragraphs 2, 3 or 4, it shall reject the opposition as inadmissible, and communicate this to opponent, unless these deficiencies have been remedied before expiry of the opposition filing period referred to in paragraph 1.
7. The decision to reject an opposition as inadmissible shall be communicated to the holder of the unitary certificate application, together with a copy of the notice of opposition.
1. A notice of opposition shall be inadmissible where a previous appeal relating to the same subject matter and cause of action has been adjudicated on its merits by the Office, and the decision of the Office on that appeal has acquired the authority of a final decision.
9. Where the opposition is not rejected as inadmissible, the Office shall promptly transmit the notice of opposition to the applicant, and shall publish it in the Register. If several notices of opposition have been filed, the Office shall promptly communicate them to the other opponents.
10. The Office shall issue a decision on the opposition within 6 months, unless the complexity of the case requires a longer period.
11. If the opposition panel considers that no ground for opposition prejudices the maintenance of the examination opinion, it shall reject the opposition, and the Office shall mention this in the Register.
12. If the opposition panel considers that at least one ground for opposition prejudices the maintenance of the examination opinion, it shall adopt an amended opinion, and the Office shall mention this in the Register.
13. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the details of the procedure for filing and examining an opposition.
Article 16
Role of competent national authorities
1. On a request made to the Office, any competent national authority may be appointed by the Office as a participating office in the examination procedure. Once a competent national authority is appointed in accordance with this Article, that authority shall designate one or more examiners to be involved in the examination of one or more applications for unitary certificates.
2. The Office and the competent national authority shall conclude an administrative agreement before that competent national authority is appointed as participating office as referred to in paragraph 1.
The agreement shall specify the rights and obligations of the parties, in particular the formal undertaking by the competent national authority concerned to comply with this Regulation as regards the examination of applications for unitary certificates.
3. The Office may appoint a competent national authority as a participating office as referred to in paragraph 1 for 5 years. That appointment may be extended for further periods of 5 years.
4. The Office shall, before appointing a competent national authority, or extending its appointment, or before any such appointment expires, hear the competent national authority concerned.
5. Each competent national authority appointed under this Article shall provide the Office with a list identifying the individual examiners who are available for participation in examination, opposition and invalidity proceedings. Each such competent national authority shall update that list in the event of a change.
Article 17
Examination panels
1. The assessments under Articles 13, 15 and 22 shall be conducted by an examination panel including one member of the Office as well as two examiners as referred to in Article 16(1) from two different participating competent national authorities, under supervision of the Office.
2. Examiners shall be impartial in the exercise of their duties and shall declare to the Office any real or perceived conflict of interest upon their designation.
3. When setting up an examination panel, the Office shall ensure the following:
(a) geographical balance amongst the participating offices;
(b) the respective workload of the examiners is taken into account;
(c) no more than one examiner employed by a competent national authority making use of the exemption set out in Article 10(5) of Regulation [COM(2023) 223].
4. The Office shall publish a yearly overview of the number of procedures, including those for examination, opposition, appeal and invalidity, each competent national authority participated in.
5. The Commission is empowered to adopt implementing acts to determine the criteria in the ways the panels are to be set up, and the criteria for the selection of examiners. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50.
Article 18
Grant of a unitary certificate or rejection of the application for a unitary certificate
After the period during which an appeal or an opposition may be filed has expired without any appeal nor opposition being filed, or after a final decision on the merits has been issued, the Office shall take one of the following decisions:
(a) where the examination opinion is positive, the Office shall grant a unitary certificate;
(b) where the examination opinion is negative, the Office shall reject the application for a unitary certificate.
Article 19
Duration of the unitary certificate
1. The unitary certificate shall take effect at the end of the lawful term of the basic patent, namely on the twentieth anniversary of the filing date of the application for that patent, for a period equal to the period which elapsed between the date on which the application for the basic patent was lodged and the date of the first authorisation to place the product on the market in the Union, reduced by a period of 5 years.
2. The duration of the unitary certificate may not exceed 5 years from the date on which it takes effect.
Article 20
Expiry of the unitary certificate
1. The unitary certificate shall lapse in any of the following events:
(a) at the end of the period provided for in Article 19;
(b) if the unitary certificate holder surrenders it;
(c) if the annual fee laid down in accordance with Article 29(3) is not paid in time.
2. Where the authorisation to place the product on the market in accordance with Regulation (EC) No 1107/2009 is withdrawn in a Member State in which the basic patent has unitary effect, the certificate shall cease to have effect in that Member State. This may be decided by the Office of its own motion or at the request of a third party.
Article 21
Invalidity of the unitary certificate
The unitary certificate shall be invalid in any of the following events:
(a) the certificate was granted contrary to Article 3;
(b) the basic patent has lapsed before its lawful term expires;
(c) the basic patent is revoked or limited to the extent that the product for which the unitary certificate was granted would no longer be protected by the claims of the basic patent or, after the basic patent has expired, grounds for revocation exist which would have justified such revocation or limitation.
Article 22
Action for a declaration of invalidity
1. Any person may file with the Office an application for a declaration of invalidity of a unitary certificate.
2. An application for a declaration of invalidity may only be filed on the grounds that one or more of the conditions set out in Article 21 are not fulfilled for one or more of the Member States in which the basic patent has unitary effect.
3. An application for a declaration of invalidity shall be filed in writing, and shall specify the grounds on which it is made. It shall not be considered as duly filed until the related fee has been paid.
4. The application for a declaration of invalidity shall contain:
(a) the references of the unitary certificate against which that application is filed, the name of its holder, and the identification of the product;
(b) the particulars of the person referred to in paragraph 1 (‘applicant’) and, where applicable, of its representative;
(c) a statement of the grounds on which the application for a declaration of invalidity is based.
5. The application for a declaration of invalidity shall be examined by an invalidation panel set up by the Office in accordance with the rules applicable to examination panels. However, the invalidation panel shall not include any examiner previously involved in the examination panel that examined the unitary certificate application, nor, the case being, any examiner involved in possible related opposition proceedings, nor in related appeal proceedings.
1. An application for a declaration of invalidity shall be inadmissible where an application relating to the same subject matter and cause of action, and involving the same parties, has been adjudicated on its merits, either by the Office or by a competent court as referred to in Article 24, and the decision of the Office or that court on that application has acquired the authority of a final decision.
7. If the invalidation panel notes that the application for a declaration of invalidity does not comply with paragraphs 2, 3 or 4, it shall reject that application as inadmissible, and communicate this to applicant.
8. The decision to reject an application for a declaration of invalidity as inadmissible shall be communicated to the holder of the unitary certificate, together with a copy of that application.
9. Where the application for a declaration of invalidity is not rejected as inadmissible, the Office shall promptly transmit that application to the holder of the unitary certificate, and shall publish it in the Register. If several applications for a declaration of invalidity have been filed, the Office shall promptly communicate them to the other applicants.
10. The Office shall issue a decision on the application for a declaration of invalidity within 6 months, unless the complexity of the case requires a longer period.
11. If the examination of the application for a declaration of invalidity reveals that the one or more of the conditions set out in Article 21 are met, the unitary certificate shall be declared invalid. Otherwise the application for a declaration of invalidity shall be rejected. The outcome shall be mentioned in the Register.
12. The unitary certificate shall be deemed not to have had, as from the outset, the effects specified in this Regulation, to the extent that it has been declared invalid.
13. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the details of the procedure governing the declaration of invalidity.
Article 23
Counterclaim for the invalidity of a certificate
1. A counterclaim for a declaration of invalidity may only be based on the grounds for invalidity set out in Article 21.
2. The competent court of a Member State shall reject a counterclaim for a declaration of invalidity if a decision taken by the Office relating to the same subject matter and cause of action and involving the same parties has already become final.
3. If the counterclaim is brought in a legal action to which the holder of the unitary certificate is not already a party, that holder shall be informed thereof and may be joined as a party to the action in accordance with the conditions applicable before the competent court.
4. The competent court of a Member State with which a counterclaim for a declaration of invalidity of the unitary certificate has been filed shall not proceed with the examination of the counterclaim, until either the interested party or the court has informed the Office of the date on which the counterclaim was filed. The Office shall record that information in the Register. If an application for a declaration of invalidity of the unitary certificate had already been filed before the Office before the counterclaim was filed, the court shall be informed thereof by the Office and stay the proceedings until the decision on the application is final or the application is withdrawn.
5. Where the competent court of a Member State has given a judgment which has become final on a counterclaim for a declaration of invalidity of a unitary certificate, a copy of the judgment shall be sent to the Office without delay, either by the court or by any of the parties to the national proceedings. The Office or any other interested party may request information about such transmission. The Office shall mention the judgment in the Register and shall take the necessary measures to comply with its operative part.
6. The competent court hearing a counterclaim for a declaration of invalidity may stay the proceedings on application by the holder of a unitary certificate and after hearing the other parties and may request the defendant to submit an application for a declaration of invalidity to the Office within a time limit which it shall determine. If the application is not made within the time limit, the proceedings shall continue; the counterclaim shall be deemed withdrawn. Where the competent court of a Member State stays the proceedings it may order provisional and protective measures for the duration of the stay.
Article 24
Notification of lapse or invalidity
Where the unitary certificate lapses in accordance with Article 20(1), point (b) or (c), or Article 20(2), or is invalid in accordance with Article 21 and 22, the Office shall promptly publish a notification thereof.
Article 25
Conversion
1. Where the unitary effect of the basic patent is revoked while the application for a unitary certificate is still pending, the holder of that application may, subject to a fee, request the conversion of that application into a centralised application for certificates.
2. Where the unitary effect of the basic patent is revoked after the unitary certificate has been granted, the holder of that certificate may, subject to a fee, request the conversion of that unitary certificate into national certificates.
3. A request for conversion may be filed with the Office within 3 months after notification of the revocation of the unitary effect of the basic patent.
4. A request for conversion, as well as its outcome, shall be published in the Register.
5. The Office shall check whether the conversion requested fulfils the conditions set out in this Article, together with the formal conditions specified in the implementing act adopted pursuant to paragraph 8. If the conditions governing the request are not fulfilled, the Office shall notify the applicant of the deficiencies. If the deficiencies are not remedied within a period to be specified by the Office, the Office shall reject the request for conversion. Where the conversion fee has not been paid within the relevant period of 3 months, the Office shall inform the applicant that the request for conversion is deemed not to have been filed.
6. Where a request under paragraph 1 complies with paragraph 5, the Office shall convert the application for a unitary certificate into a centralised application for certificates designating the Member States in which the basic patent had unitary effect. In the event of a combined application, the designation of the Member States in which the basic patent had unitary effect shall be added to the designation of other Member States already included in the combined application.
7. Where a request under paragraph 2 complies with paragraph 5, the Office shall transmit the request for conversion to the competent national authorities of each Member State in which the basic patent had unitary effect and for which the request has been found admissible. The competent national authorities shall take decisions accordingly.
8. The Commission shall adopt implementing acts specifying the details to be contained in a request for conversion of the for a unitary certificate or unitary certificate into a centralised application for certificates or national certificates. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50.
Article 26
Appeals
1. Any party to proceedings under this Regulation, adversely affected by a decision of the Office, including the adoption of an examination opinion, may appeal the decision to the Boards of Appeal.
2. The filing of the appeal shall have suspensive effect. A decision of the Office that has not been contested shall take effect on the day following the date of expiry of the appeal period referred to in paragraph 3.
3. Notice of appeal shall be filed in writing at the Office within 2 months of the date of notification of the decision. The notice shall be deemed to have been filed only when the fee for appeal has been paid. In case of an appeal, a written statement setting out the grounds of appeal shall be filed within 4 months of the date of notification of the decision.
4. Following an examination of admissibility of the appeal, the Boards of Appeal shall decide on the merits of the appeal.
5. Where an appeal results in a decision which is not in line with the examination opinion, the decision of the Boards may annul or alter the opinion.
6. An action may be brought before the General Court of the European Union against a decision of the Boards of Appeal in relation to appeals, within 2 months of the date of notification of that decision, within 2 months of the date of notification of that decision, on grounds of infringement of an essential procedural requirement, infringement of the Treaty on the Functioning of the European Union, infringement of this Regulation or of any rule of law relating to their application or misuse of power. The action shall be open to any party to proceedings before the Board of Appeal adversely affected by its decision. The General Court shall have jurisdiction to annul or to alter the contested decision.
7. The decisions of the Boards of Appeal shall take effect on the day following the date of expiry of the period referred to in paragraph 6 or, if an action has been brought before the General Court within that period, as from the date following the day of dismissal of such action or of dismissal of any appeal filed with the Court of Justice of the European Union against the decision of the General Court. The Office shall take the necessary measures to comply with the judgement of the General Court or, in the event of an appeal against that judgement, the Court of Justice.
8. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the content and form of the notice of appeal referred to in paragraph 3, the procedure for the filing and examination of an appeal and the content and the form of the Boards of Appeal’s decision referred to in paragraph 4.
Article 27
Boards of Appeal
1. In addition to the powers conferred upon it by Article 165 of Regulation (EU) 2017/1001, the Boards of Appeal instituted by that Regulation shall be responsible for deciding on appeals against decisions of the Office taken on the basis of Article 26(1).
2. A Board of Appeal in matters regarding unitary certificates shall consist of three members, at least two of whom are legally qualified. Where the Board of Appeal considers that the nature of the appeal so requires, it may call up to two further members for that case.
3. There shall be no Grand Board as referred to in Article 165 (2), (3) and (4), and Article 167(2) of Regulation (EU) 2017/1001 in matters regarding unitary certificates. Decisions taken by a single member as under Article 165 (2) of Regulation (EU) 2017/1001 shall not be possible.
4. Members of the Boards of Appeal in matters regarding unitary certificates shall be appointed in accordance with Article 166 (5) of Regulation (EU) 2017/1001.
Article 28
Delegation of power regarding the Boards of Appeal
The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the details concerning the organisation of the Boards of Appeal in proceedings relating to unitary certificates under this Regulation.
Article 29
Fees
1. The Office shall charge a fee for an application for a unitary certificate.
2. The Office shall charge a fee for appeals, for oppositions, for applications for a declaration of invalidity and for conversions.
3. The unitary certificate shall be subject to the payment of annual maintenance fees to the Office.
4. The Commission is empowered to adopt implementing acts determining the amounts of the fees charged by the Office, the time limits within which they have to be paid, and the ways in which they are to be paid. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50.
Article 30
Combined applications
An application for a unitary certificate may be included in a combined centralised application in which the applicant also requests the grant of national certificates, in the designated Member States, in accordance with the centralised procedure under Regulation [COM(2023) 223]. In that case, Article 38 of that Regulation shall apply.
Article 31
Language
1. All documents and information sent to the Office in respect of the procedures under this Regulation shall be in one of the official languages of the Union.
2. For the tasks conferred on the Office under this Regulation, the languages of the Office shall be all the official languages of the Union in accordance with Council Regulation No 128.
Article 32
Communications to the Office
1. Communications addressed to the Office may be effected by electronic means. The Executive Director shall determine to what extent and under which technical conditions those communications may be submitted electronically.
2. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the rules on the means of communication, including the electronic means of communication, to be used by the parties to proceedings before the Office and the forms to be made available by the Office.
Article 33
Register
1. As regards applications for unitary certificates for plant protection products, the Register set up under Article 35 of Regulation [COM(2023) 231]29 shall include, for each unitary certificate, or application for a unitary certificate, the following information, as applicable:
(a) the name and address of the applicant or certificate holder;
(b) the name and business address of the representative, other than a representative as referred to in Article 36(3);
(c) the application as well as its date of lodging and date of publication;
(d) whether the application relates to a medicinal product or to a plant protection product;
(e) the number of the basic patent;
(f) an identification of the product for which a unitary certificate is requested;
(g) the numbers and dates of the authorisations to place the product on the market referred to in Article 3(1), point (b), and an identification of the product identified in each of them;
(h) the number and date of the first authorisation to place the product on the market in the Union;
(i) the date and a summary of the examination opinion of the Office in respect of each of the Member States in which the basic patent has unitary effect;
(j) where applicable, the number and the duration of the unitary certificate;
(k) where applicable, the filing of an opposition, and the outcome of the opposition proceedings, including where applicable a summary of the revised examination opinion;
(l) where applicable, the filing of an appeal, and the outcome of the appeal proceedings, including where applicable a summary of the revised examination opinion;
(m) where applicable, a mention that a certificate has lapsed or was declared invalid;
(n) where applicable, any decision regarding the geographical scope of the unitary certificate, in respect of a derogation under Article 3, paragraph 5 or under Article 20, paragraph 2;
(o) where applicable, the filing of an application for a declaration of invalidity and, once available, the outcome of the related proceedings;
(p) where applicable, information relating to a request for conversion, and its outcomes;
(q) information on the payment of annual fees.
2. The Register shall contain changes to the information referred to in paragraph 1, including transfers, each accompanied by the date of recording of such entry.
3. The Register and information referred to in paragraphs 1 and 2 shall be available in all official languages of the Union. The Office may use verified machine translation for the information to be published in the register.
4. The Executive Director of the Office may determine that information other than those referred to in paragraphs 1 and 2 shall be entered in the Register.
5. The Office shall collect, organise, make public and store the information referred to in paragraphs 1 and 2, including any personal data, for the purposes laid down in paragraph 7. The Office shall keep the Register easily accessible for public inspection.
6. The Office shall provide certified or uncertified extracts from the Register on request and on payment of a fee.
7. The processing of the data concerning the entries set out in paragraphs 1 and 2, including any personal data, shall take place for the purposes of:
(a) administering the applications and unitary certificates in accordance with this Regulation and the acts adopted pursuant to it;
(b) maintaining the Register and making it available for inspection by public authorities and economic operators;
(c) producing reports and statistics enabling the Office to optimise its operations and improve the functioning of the system.
8. All the data, including personal data, concerning the entries in paragraphs 1 and 2 shall be considered to be of public interest and may be accessed by any third party free of charge. For reasons of legal certainty, the entries in the Register shall be kept for an indefinite period of time.
Article 34
Database
1. In addition to the obligation to keep a Register, the Office shall collect and store in an electronic database all the particulars provided by applicants or any other third party observations pursuant to this Regulation or acts adopted pursuant to it.
2. The electronic database may include personal data, beyond those included in the Register, to the extent that such particulars are required by this Regulation or by acts adopted pursuant to it. The collection, storage and processing of such data shall serve the purposes of:
(a) administering the applications and/or certificate registrations as described in this Regulation and in acts adopted pursuant to it;
(b) accessing the information necessary for conducting the relevant proceedings more easily and efficiently;
(c) communicating with the applicants and other third parties;
(d) producing reports and statistics enabling the Office to optimise its operations and improve the functioning of the system.
3. The Executive Director shall determine the conditions of access to the electronic database and the manner in which its contents, other than the personal data referred to in paragraph 2 of this Article but including those listed in Article 33(3), may be made available in machine-readable form, including the charge for such access.
4. Access to the personal data referred to in paragraph 2 shall be restricted and such data shall not be made publicly available unless the party concerned has given his express consent.
5. All data shall be kept indefinitely. However, the party concerned may request the removal of any personal data from the database after 18 months from the expiry of the unitary certificate or, the case being, the closure of the relevant inter partes procedure. The party concerned shall have the right to obtain the correction of inaccurate or erroneous data at any time.
Article 35
Transparency
1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council30 shall apply to documents held by the Office.
2. The Management Board of the Office shall adopt detailed rules for applying Regulation (EC) No 1049/2001 in the context of this Regulation.
3. Decisions taken by the Office under Article 8 of Regulation (EC) No 1049/2001 may be challenged through the European Ombudsman or form the subject of an action before the Court of Justice of the European Union, under the conditions laid down in Articles 228 and 263 TFEU respectively.
4. The processing of personal data by the Office shall be subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council31.
Article 36
Representation
1. Natural or legal persons having neither their domicile nor their principal place of business or a real and effective industrial or commercial establishment in the European Economic Area shall be represented before the Office in accordance with this Article in all proceedings provided for by this Regulation, other than the filing of an application for a unitary certificate.
2. Natural or legal persons having their domicile or principal place of business or a real and effective industrial or commercial establishment in the Union may be represented before the Office by an employee.
An employee of a legal person may also represent other legal persons which are economically linked with the legal person being represented by that employee.
The second subparagraph also applies where those other legal persons have neither their domicile nor their principal place of business nor a real and effective industrial or commercial establishment within the Union.
Employees who represent natural or legal persons shall, at the request of the Office or, where appropriate, of the party to the proceedings, file with the Office a signed authorisation for insertion in the files.
3. A common representative shall be appointed where there is more than one applicant or more than one third party acting jointly.
4. Only a practitioner established in the Union, entitled to act as a professional representative in patent matters before a national patent office or the European Patent Office, or a lawyer authorised to practise before the courts or tribunals of a Member State, may represent natural or legal persons before the Office.
Article 37
Supplementary Protection Certificates Division
A Supplementary Protection Certificate Division (‘SPC Division’) shall be set up within the Office and, in addition to the responsibilities under Regulations [COM(2023) 231] and [COM(2023) 223], shall be responsible for implementing the tasks set out in this Regulation and in Regulation [COM(2023) 222], including in particular:
(a) receiving and supervising the examination of applications for unitary certificates, appeals and observations by third parties;
(b) adopting examination opinions on behalf of the Office in relation to applications for unitary certificates;
(c) deciding on oppositions against examination opinions;
(d) deciding on applications for a declaration of invalidity;
(e) processing conversion requests;
(f) maintaining the Register and the database.
Article 38
Decisions and communications of the Office
1. Decisions of the Office under this Regulation shall include examination opinions and shall state the reasons on which they are based. They shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. Where oral proceedings are held before the Office, the decision may be given orally. Subsequently, the decision or opinion shall be notified in writing to the parties.
2. Any decision, opinion, communication or notice from the Office under this Regulation shall indicate the SPC Division and the relevant panel as well as the name or the names of the examiners responsible. It shall be signed by these examiners, or, instead of a signature, carry a printed or stamped seal of the Office. The Executive Director may determine that other means of identifying the SPC Division and the name of the examiners responsible, or an identification other than a seal, may be used where decisions or other communications are transmitted by any technical means of communication.
3. Decisions of the Office under this Regulation which are open to appeal shall be accompanied by a written communication indicating that any notice of appeal is to be filed in writing at the Office within 2 months of the date of notification of the decision in question. That communication shall also draw the attention of the parties to the provisions laid down in Article 26. The parties may not plead any failure on the part of the Office to communicate the availability of appeal proceedings.
Article 39
Oral proceedings
1. If the Office considers that oral proceedings would be expedient they shall be held either at the instance of the Office or at the request of any party to the proceedings.
2. Oral proceedings before an examination panel, opposition panel or invalidity panel shall not be public.
3. Oral proceedings before the Boards of Appeal, including delivery of the decision and, as the case may be, of a revised opinion, shall be public, unless the Boards of Appeal decide otherwise in cases where admission of the public could have serious and unjustified disadvantages, in particular for a party to the proceedings.
4. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by setting out the detailed arrangements for oral proceedings.
Article 40
Taking of evidence
1. In any proceedings before the Office, the means of giving or obtaining evidence shall include the following:
(a) hearing the parties;
(b) requests for information;
(c) the production of documents and items of evidence;
(d) hearing witnesses;
(e) opinions by experts;
(f) statements in writing sworn or affirmed or having a similar effect under the law of the State in which the statement is drawn up.
2. The relevant panel may commission one of its members to examine the evidence adduced.
3. If the Office or the relevant panel considers it necessary for a party, witness or expert to give evidence orally, it shall issue a summons to the person concerned to appear before it. The period of notice provided in such summons shall be at least 1 month, unless they agree to a shorter period.
4. The parties shall be informed of the hearing of a witness or expert before the Office. They shall have the right to be present and to put questions to the witness or expert.
5. The Executive Director shall determine the amounts of expenses to be paid, including advances, as regards the costs of taking of evidence as referred to in this Article.
6. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by setting out the detailed arrangements for the taking of evidence.
Article 41
Notification
1. The Office shall, as a matter of course, notify those concerned of decisions, including opinions, summonses and of any notice or other communication from which a time limit is reckoned, or of which those concerned are to be notified under other provisions of this Regulation or of acts adopted pursuant to this Regulation, or of which notification has been ordered by the Executive Director.
2. Notification may be effected by different means, including electronic means. The details regarding electronic means shall be determined by the Executive Director.
3. Where notification is to be effected by public notice, the Executive Director shall determine how the public notice is to be given and shall fix the beginning of the 1-month period on the expiry of which the document shall be deemed to have been notified.
4. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by setting out the detailed arrangements for notification.
Article 42
Time limits
1. Time limits shall be laid down in terms of full years, months, weeks or days. Calculation shall start on the day following the day on which the relevant event occurred. The duration of time limits shall be no less than 1 month and no more than 6 months.
2. The Executive Director shall determine, before the commencement of each calendar year, the days on which the Office is not open for receipt of documents or on which ordinary post is not delivered in the locality in which the Office is located.
3. The Executive Director shall determine the duration of the period of interruption in the case of a general interruption in the delivery of post in the Member State where the Office is located or, in the case of an actual interruption of the Office's connection to admitted electronic means of communication.
4. If an exceptional occurrence, such as a natural disaster or strike, interrupts or interferes with proper communication from the parties to the proceedings to the Office or vice-versa, the Executive Director may determine that for parties to the proceedings having their residence or registered office in the Member State concerned or who have appointed a representative with a place of business in the Member State concerned all time limits that otherwise would expire on or after the date of commencement of such occurrence, as determined by the Executive Director, shall extend until a date to be determined by the Executive Director. When determining that date, the Executive Director shall assess when the exceptional occurrence comes to an end. If the occurrence affects the seat of the Office, such determination of the Executive Director shall specify that it applies in respect of all parties to the proceedings.
5. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the details regarding the calculation and duration of time limits.
Article 43
Correction of errors and manifest oversights
1. The Office shall correct any linguistic errors or errors of transcription and manifest oversights in its decisions, including opinions, or technical errors in publishing information in the Register, of its own motion or at the request of a party.
2. Where the Office has made an entry in the Register or taken a decision which contains an obvious error attributable to the Office, it shall ensure that the entry is cancelled or the decision is revoked. The cancellation of the entry in the Register or the revocation of the decision shall be effected within 1 year of the date on which the entry was made in the Register or that decision was taken, after consultation with the parties to the proceedings.
3. The Office shall keep records of any such corrections or cancellations.
4. Corrections and cancellations shall be published by the Office.
Article 44
Restitutio in integrum
1. The applicant for or holder of a unitary certificate, or any other party to proceedings before the Office under this Regulation, who, in spite of all due care required by the circumstances having been taken, was unable to comply with a time limit vis-à-vis the Office shall, upon application, have his rights re-established if the obstacle to compliance has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any right or means of redress.
2. The application for re-establishment shall be filed in writing within 2 months of the removal of the obstacle to compliance with the time limit. The omitted act shall be completed within this period. The application shall only be admissible within the year immediately following the expiry of the unobserved time limit.
3. The application for re-establishment shall state the grounds on which it is based and shall set out the facts on which it relies. It shall not be deemed to be filed until the fee for re-establishment of rights has been paid.
4. The SPC Division, or where applicable the Boards of Appeal, shall decide upon the application.
5. This Article shall not be applicable to the time limits referred to in paragraph 2 of this Article, or in Article 15(1) and (3).
Article 45
Interruption of proceedings
1. Proceedings before the Office under this Regulation shall be interrupted:
(a) in the event of the death or legal incapacity of the applicant or of the person authorised by national law to act on behalf of the applicant. To the extent that that death or incapacity does not affect the authorisation of a representative appointed under Article 36, proceedings shall be interrupted only on application by such representative;
(b) in the event of the applicant being prevented, for legal reasons resulting from action taken against his property, from continuing the proceedings before the Office;
(c) in the event of the death or legal incapacity of the representative of the applicant, or of that representative being prevented, for legal reasons resulting from action taken against his property, from continuing the proceedings before the Office.
2. Proceedings before the Office shall be resumed as soon as the identity of the person authorised to continue them has been established.
3. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by setting out the detailed arrangements for the resumption of proceedings before the Office.
Article 46
Costs
1. The losing party in opposition proceedings and proceedings for a declaration of invalidity, including in related appeal proceedings, shall bear the fees paid by the other party. The losing party shall also bear all costs incurred by the other party that are essential to the proceedings, including travel and subsistence and the remuneration of a representative, within the maximum rates set for each category of costs in the implementing act to be adopted in accordance with paragraph 7. The fees to be borne by the losing party shall be limited to the fees paid by the other party in those proceedings.
2. Where each party succeeds on some and fails on other heads, or if reasons of equity so dictate, the SPC Division or Board of Appeal shall decide a different apportionment of costs.
3. Where proceedings are terminated the costs shall be at the discretion of the SPC Division or Board of Appeal.
4. Where the parties conclude before the SPC Division or Board of Appeal a settlement of costs differing from that provided for in paragraphs 1 to 3, the body concerned shall take note of that agreement.
5. The SPC Division or Board of Appeal shall fix the amount of the costs to be paid pursuant to paragraphs 1 to 3 of this Article when the costs to be paid are limited to the fees paid to the Office and the representation costs. In all other cases, the registry of the Board of Appeal or SPC Division shall fix, on request, the amount of the costs to be reimbursed. The request shall be admissible only for the period of 2 months following the date on which the decision for which an application was made for the costs to be fixed becomes final and shall be accompanied by a bill and supporting evidence. For the costs of representation an assurance by the representative that the costs that have been incurred shall be sufficient. For other costs, it shall be sufficient if their plausibility is established. Where the amount of the costs is fixed pursuant to the first sentence of this paragraph, representation costs shall be awarded at the level laid down in the implementing act adopted pursuant to paragraph 7 of this Article and irrespective of whether they have been actually incurred.
6. Decisions on the fixing of costs adopted in accordance with paragraph 5 shall state the reasons on which they are based, and may be reviewed by a decision of the SPC Division or Board of Appeal on a request filed within 1 month of the date of notification of the awarding of costs. It shall not be deemed to be filed until the fee for reviewing the amount of the costs has been paid. The SPC Division or the Board of Appeal, as the case may be, shall take a decision on the request for a review of the decision on the fixing of costs without oral proceedings.
7. The Commission shall adopt implementing acts specifying the maximum rates for costs essential to the proceedings and actually incurred by the successful party. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50.
8. When specifying the maximum rates with respect to travel and subsistence costs, the Commission shall take into account the distance between the place of residence or business of the party, representative or witness or expert and the place where the oral proceedings are held, the procedural stage at which the costs have been incurred, and, as far as costs of representation are concerned, the need to ensure that the obligation to bear the costs may not be misused for tactical reasons by the other party. In addition, subsistence expenses shall be calculated in accordance with the Staff Regulations of Officials of the Union and the Conditions of Employment of Other Servants of the Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/6832. The losing party shall bear the costs for one party in the proceedings only and, where applicable, one representative only.
Article 47
Enforcement of decisions fixing the amount of costs
1. Any final decision of the Office fixing the amount of costs shall be enforceable.
2. Enforcement shall be governed by the rules of civil procedure in force in the Member State in the territory of which it is carried out. Each Member State shall designate a single authority responsible for verifying the authenticity of the decision referred to in paragraph 1 and shall communicate its contact details to the Office, the Court of Justice and the Commission. The order for enforcement shall be appended to the decision by that authority, with the verification of the authenticity of the decision as the sole formality
3. When these formalities have been completed on application by the party concerned, the latter may proceed to enforcement in accordance with the national law, by bringing the matter directly before the competent authority.
4. Enforcement may be suspended only by a decision of the Court of Justice. However, the courts of the Member State concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.
Article 48
Financial provisions
1. The expenses incurred by the Office in carrying out the additional tasks given to it in accordance with this Regulation shall be covered by the procedural fees to be paid to it by applicants and by a fraction of the annual fees paid by the holders of unitary certificates, while the remainder of the annual fees shall be shared with the Member States in accordance with the number of unitary certificates having legal effect in each of them. The fraction of the annual fees to be shared with Member States shall initially be set at a certain value but shall be reviewed every 5 years, in such a manner as to achieve financial sustainability for the activities carried out by the Office under this Regulation as well as under Regulations [COM(2023) 231], [COM(2023) 223] and [COM(2023) 222].
2. For the purposes of paragraph 1, the Office shall keep an account of the annual fees paid to it by holders of unitary certificates in force in the respective Member States.
3. The expenses incurred by a competent national authority participating in proceedings under this Chapter shall be covered by the Office and shall be paid annually, on the basis of the number of proceedings in which that competent national authority was involved during the preceding year.
4. The Commission is empowered to adopt implementing acts laying down rules on the financial transfers between the Office and Member States, the amounts of these transfers, and the remuneration to be paid by the Office regarding the participation of competent national authorities referred to in paragraph 3. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 50.
5. Article 12 of Regulation (EU) No 1257/2012 shall apply to the annual fees due in respect of unitary certificates.
Article 49
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Articles 15(13), 22(13), 26(8), 28, 32(2), 39(4), 40(6), 41(4), 42(5) and 45(3) shall be conferred on the Commission for an indeterminate period of time from XXX [OP please insert the date = date of entry into force].
3. The delegation of power referred to in Articles 15(13), 22(13), 26(8), 28, 32(2), 39(4), 40(6), 41(4), 42(5) and 45(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Articles 15(13), 22(13), 26(8), 28, 32(2), 39(4), 40(6), 41(4), 42(5) and 45(3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 50
Committee procedure
1. The Commission shall be assisted by a Committee on Supplementary Protection Certificates established by Regulation [COM(2023) 231]. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 51
Evaluation
By xxxxxx [OP, please insert: five years after the date of application], and every five years thereafter, the Commission shall evaluate the implementation of this Regulation.
Article 52
Entry into force and application
This Regulation shall enter into force on XXX [OP – please insert the date - the 20th day following its publication in the Official Journal of the European Union].
It shall apply from xxxxx [OP please insert first day of the 12th month after the date of entry into force].
This Regulation shall be binding in its entirety and directly applicable in all Member States.