b'first UPOV Convention of 1961 to provide an optional provisionalIn its answers to the questions, the CJEU concluded that: protection between the application date and the grant of protection.- the purchase and planting of variety constituents do not infringe The UPOV 1991 Convention obliges its members to safeguard theon article 13(2), as these acts are not mentioned in article 13(2), interests of the breeder during this period by providing measuresand the mandarins produced are not considered variety constit-that shall at least be the right to reasonable compensation for anyuents:acts executed with the variety that would need the authorization of the holder after the granting of the PVR. Note: this provision- t he protection of the harvested material depends on the require-does not protect the variety during the testing period but offers onlyments of article 13(3): non-authorized use of the constituents and financial compensation after the PVR has been granted. no reasonable opportunity to exercise the PVR on these constit-(The EU Regulation 2100/94 differs from the UPOV 1991uents:Convention in that instead of the term propagation material, it uses the term variety constituents, referring to (parts of) plants capable of- a s the acts performed by the grower, i.e. the planting of Nadorcott reproducing the variety.) trees and the production of mandarins were performed during the provisional protection, they could not be prohibited and were THE NADORCOTT CASE therefore not unauthorized:Key EventsAfter nine years of testing, the PVR protection for the variety was- the fruits from the trees planted before the granting of the PVR, granted in 2004. The extended testing period resulted from techni- but harvested after its granting, were not protected because the cal requirements and a hailstorm that damaged the trials. Duringconstituents of the variety were not used unauthorized.this long testing period, the still unprotected variety was adopted widely by growers to produce seedless mandarins inexpensively,COMMENTS ON THE JUDGMENTwithout paying fees. The reasoning of the CJEU makes it clear that the distinction After the granting of the right, one of the growers wasbetween the protection of propagating and harvested material was summoned to court for infringement by the Club de Variedadesconsidered by the CJEU contrary to the original intention of the Vegetales Protegidas (CVVP), which represented the variety holder,drafters of the UPOV 1991 Convention. Rather than seeing the Nadorcott Protection (NCP). After two negative court decisions forcascade, proposed to force the breeder to exercise the right first on CVVP, the case was elevated to the Spanish Supreme Court, whichthe propagating material, as a step-by-step process, designed not posed three preliminary questions to the CJEU. to hamper the trade, the CJEU viewed it as a two-tiered system: In its ruling, the CJEU emphasized that the Regulation pro- a dominant primary level and a secondary, more inferior level. It vides primary protection for the production or reproduction ofis evident that the CJEU, by interpreting this crucial issue, did variety constituents, while "secondary" protection for har- not delve into and consider the history of the development of the vested material is limited by conditions in paragraph 3cascade. of that article.The CJEU incorrectly considered article 95 as a period of protection. The provisional protection is not a PVR but merely a temporal measure that can only be exercised after the grant of that PVR. Consequently, the cascade as formulated in article 13(3) does not apply. This article 13(3) states:The provisions of paragraph 2 shall apply in respect of har-vested material only if this was obtained through the unauthorized use of variety constituents of the protected variety. It is self-evident that, during the period of provisional protection, the owner of the variety cannot authorize any of the acts as mentioned in Article 13. Moreover, the cas-cade, as shown above, was introduced for the reason that the holder should first exercise his existing right on the propagating material of the protected variety. And if the holder had no reasonable opportunity to do so, the holder may exercise the right on the harvested material. This rule can only be applied on a protected variety. Such has always been the intention, as shown in the preparatory papers of the UPOV Convention and the discussions during the Diplomatic Conference.Therefore, the conclusion of the CJEU, stating that, fruit obtained from those plants may not be regarded as having been obtained through unauthorised use within the meaning of Article 13(3) of that regulation, even if harvested after the Community plant variety right was granted, does not hold.Based on paragraph 2(a) of article 13, the use of the trees, grown and sold before the grant of PVR, to produce mandarins, becomes after the granting of the PVR, an unauthorized use of SEEDWORLD.COM/EUROPEISEED WORLD EUROPE I 33'