b'The CJEU has ruled that the protection to be afforded to variety constituents is different from that to be afforded to har-vested material in accordance with the system of cascade protec-tion, that is, falling under one regime or the other has relevant legal implications.The CJEU begins by recalling that variety constituents must be understood as entire plants or parts of plants as far as such parts are capable of producing entire plants, and thus affirms that only plant material with a capacity for propagating can fall under the primary protection regime. In what concerns harvested material, the CJEU observes that in this case, fruit harvested from Nadorcott trees is not liable to be used as propagating material for plants of that vari-ety. Consequently, the CJEU considers that the planting of trees of such protected variety and the harvesting of fruits from those trees cannot be regarded as an act of production or reproduc-tion (multiplication) of variety constituents within the meaning of Article 13(2)(a) (primary protection regime), but must rather be regarded as the production of harvested material pursuant to Article 13(3) (secondary protection regime). Hence, under the secondary protection regime, the author-isation of the title holder of the protected variety can only be required if the two conditions of Article 13(3) are fulfilled.PRACTICAL SIGNIFICANCE This finding of the CJEU marks a dividing line between variety constituents and harvested material in terms of legal protec-tion. In the case of harvested material, two additional conditions must be fulfilled for the authorisation of the CPVR title holder to arise as necessary in relation to the acts in Article 13(2) to which he/she is entitled:-First, the harvested material must have been obtained through the unauthorised use of variety constituents of the protected variety. This means that the secondary protection regime is dependent upon the primary protection regime. One can imagine how complex this can be in probatory terms. Indeed, the gathering of evidence and the establishment of a link leading back to the root of the issue, namely, the unauthorised use of variety constituents in the first place, constitute a challenging exercise for any CPVR title holder and/or a licensee. -Second, the title holder must not have had reasonable opportunity to exercise his/her right in relation to those variety constituents. For instance, in the case at hand, this means that the title holder of the variety Nadorcott should not have been able to enforce his right in relation to the allegedly infringing trees visvis the Spanish nursery that propagated and sold such. Yet, the challenge here lies in demonstrating the existence of a negative premise: proving not having had reasonable opportunity to. Unfortunately, the CJEU has not provided any guidance for interpreting this second condition.In sum, breeders will lose control to a certain extent over the use of their protected varieties regarding the production of harvested material.2This is especially concerning for the horti-cultural industry, for which fruits and cut-flowers represent the main added-value products.3 EUROPEAN-SEED.COMIEUROPEAN SEED I 19'