What changed between the draft committee report and the plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

11 unchanged paragraphs

on the proposal for a regulation of the European Parliament and of the Council on the supplementary protection certificate for plant protection products (recast)

(COM(2023)0223 – C90149/2023 – 2023/0128(COD))

(Ordinary legislative procedure – recast)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2023)0223),

– having regard to Article 294(2) and Article 114(1) Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90149/2023),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Economic and Social Committee of 27 September 2023,

– having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts,

– having regard to Rules 110 and 59 of its Rules of Procedure,

– having regard to the opinion of the Committee on Agriculture and Rural Development,

Changed:– having regard to the report of the Committee on Legal Affairs (A90000/2023),(A9-0023/2024),

4 unchanged paragraphs

A. whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the Commission proposal does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance;

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

Removed:Article 8 – paragraph 1 – point c a (new): (ca) where applicable, the consent of the third party referred to in Article 6(2);

Added:Recital 11: (11) One of the conditions for the grant of a certificate should be that the product is protected by the basic patent, in the sense that the product should fall within the scope of one or more claims of that patent, as interpreted by the person skilled in the art in light of the description of the patent on the basis of that person’s general knowledge in the relevant field and on the prior art at the filing date or priority date of the basic patent. This should not necessarily require that the active substance of the product be explicitly identified in the claims or, in the event of a preparation, this should not necessarily require that each active substances be explicitly identified in the claims, provided that each active substance is specifically identifiable in the light of all the information disclosed by that patent on the basis of the prior art at the filing date or priority date of the basic patent.

Removed:Article 8 – paragraph 2 a (new): 2a. The applicant shall be responsible for the accuracy of the information and documentation submitted in relation to its application.

Added:Recital 12: (12) To avoid overprotection, it should be provided that no more than one certificate, whether national or unitary, may protect the same product in a Member State. Therefore it should be required that the product, or any derivative such as salts, esters, ethers, isomers, mixtures of isomers, or complexes, equivalent to the product from a phytosanitary perspective, should not have already been the subject of a prior certificate, whether for the same application or for a different one.

Added:Recital 32: (32) The examination of a centralised application for a certificate should be conducted, under supervision of the Office, by an examination panel including one member of the Office as well as two examiners employed by the national patent offices. This would ensure that optimal use be made of expertise in supplementary protection certificates and related patent matters, located today at national offices only. To ensure an optimal quality of the examination, the Office and the competent national authorities should make sure that designated examiners have the relevant expertise and sufficient experience in the assessment of supplementary protection certificates. Additional suitable criteria should be laid down in respect of the participation of specific examiners in the centralised procedure, in particular as regards qualification and conflicts of interest.

Added:Recital 40: (40) To safeguard procedural rights and ensure a complete system of remedies, where the applicant or another party is adversely affected by a decision of the Office, the applicant or that party should have the right, subject to a fee, to file within 2 months an appeal against the decision, before a Board of Appeal of the Office. This also applies to the examination opinion, that may be appealed by the applicant. Decisions of that Board of Appeal should, in turn, be amenable to actions before the General Court, which has jurisdiction to annul or to alter the contested decision. In case of a combined application including a request for a unitary certificate, a common appeal may be filed.

Added:Recital 41: (41) When appointing members of the Boards of Appeal in matters regarding centralised applications for certificates, their relevant expertise, independence and sufficient prior experience in supplementary protection certificate or patent matters should be taken into account.

Added:Article 2 – paragraph 1 – point 15 a (new): (15a) ‘economically linked’ means, in respect of different holders of two or more basic patents protecting the same product, that one holder, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with another holder.

Added:Article 3 – paragraph 2: 2. The holder of more than one patent for the same product shall not be granted more than one certificate for that product. However, where two or more applications concerning the same product and emanating from two or more holders of different patents are pending, one certificate for that product may be issued to each of those holders, where they are not economically linked. The same principle shall apply mutatis mutandis to applications submitted by the holder concerning the same product for which one or more certificates or unitary certificates have been previously granted to other different holders of different patents.

Added:Article 8 – paragraph 1 – point c a (new): (ca) where applicable, the consent of the third party referred to in Article 6(2) of this Regulation;

Added:Article 15 – paragraph 1 – point a: (a) the certificate was granted contrary to Articles 3 and 6;

Added:Article 23 – paragraph 2: 2. Where the centralised application for a certificate and the product to which it relates comply with Articles 3(1) and 6(2) in respect of all or some of the designated Member States, the Office shall adopt a reasoned positive examination opinion in respect of such Member States. The Office shall notify that opinion to the applicant.

Added:Article 23 – paragraph 3: 3. Where the centralised application for a certificate and the product to which it relates does not comply with Articles 3(1) and 6(2) in respect of all or some of the designated Member States, the Office shall adopt a reasoned negative examination opinion in respect of such Member States. The Office shall notify that opinion to the applicant.

Added:Article 26 – paragraph 2: 2. Opposition may only be filed on the grounds that one or more of the conditions set out in Article 3 or 6 are not fulfilled for one or more of the designated Member States.

Added:Article 26 – paragraph 4 – point c a (new): (ca) any evidence the opponent relies on in support of the opposition.

Article 26 – paragraph 6: 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 its decision as well as its reasoning for that decision to the opponent, unless these deficiencies have been remedied before expiry of the opposition filing period referred to in paragraph 1.

Article 26 – paragraph 8 a (new): 8a. In cases where several oppositions have been filed against an examination opinion, the Office shall deal with the oppositions jointly and issue one single decision in respect of all oppositions filed.

Change 2

Changed:Article 26 – paragraph 9: 9. The Office shall issue a decision on the oppositionopposition, including a detailed reasoning for itsthat decisiondecision, within 6 months, unless the complexity of the case requires a longer period.

Change 3

Changed:Article 26 – paragraph 10: 10. If the opposition panel considers that no ground for opposition prejudices the maintenance of the examination opinion, it shall reject the opposition, and notify the opponent of its decisiondecision, and the Office shall mention this in the Register.

Change 4

Removed:Article 27 – paragraph 1 a (new): 1a. Once a competent national authority is appointed by the Office as a participating office, it shall appoint its designated examiners based on relevant expertise and whether they have sufficient experience for the centralised examination procedure.

Added:Article 26 – paragraph 11: 11. 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, notify the opponent of its decision and the Office shall mention this in the Register.

Removed:Article 28 – paragraph 3 – point a: (a) relevant expertise and sufficient experience in the examination of patents and supplementary protection certificates;

Added:Article 26 – paragraph 12 a (new): 12a. Full transparency shall be ensured throughout the whole opposition proceeding, which shall be open, whenever possible, to public participation.

Removed:Article 28 – paragraph 3 – point c: (c) that there is no examiner employed by a competent national authority making use of the exemption laid down in Article 10(5).

Added:Article 27 – paragraph 1: 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 centralised applications, on the basis of their relevant expertise and their experience in the field.

Added:Article 28 – paragraph 3 – point a: (a) relevant expertise and sufficient experience in the examination of patents and supplementary protection certificates, ensuring, in particular, that at least one examiner has a minimum of five years of experience in the examination of patents and supplementary protection certificates;

Added:Article 28 – paragraph 3 – point a a (new): (aa) where possible, geographical balance amongst the participating offices;

Added:Article 28 – paragraph 3 – point c: (c) that there is than one examiner employed by a competent national authority making use of the exemption laid down in Article 10(5).

Added:Article 29 – 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, including the evidence supporting these grounds, shall be filed within three months of the date of notification of the decision. / Any reply to the statement of grounds of appeal shall be submitted in writing no later than three months from the date of the filing of the statement of grounds of appeal. The Office shall, where applicable, fix a date for oral proceedings within three months following the filing of the reply or within six months following the filing of the statement of grounds of appeal, whichever is earlier. The Office shall issue a written decision within three months of the date of the oral hearing, or of the filing of the reply to the statement of grounds of appeal, as applicable.

Article 29 – paragraph 4 a (new): 4a. The Office shall inform the applicant of its decision without undue delay.

Article 29 – paragraph 5: 5. Where an appeal before the Boards of Appeal of the Office results in a decision which is not in line with the examination opinion and is remitted to the Office, the decision of the Boards shall annul or alter that opinion before transmitting it to the competent national authorities of the designated Member States.

Change 5

Removed:Article 30 – paragraph 4 a (new): 4a. Article 166(9) of Regulation (EU) 2017/1001 shall be respected.

Added:Article 30 – paragraph 4: 4. Members of the Boards of Appeal in matters regarding centralised applications for certificates shall be appointed in accordance with Article 166(5) of Regulation (EU) 2017/1001. When appointing members of the Boards of Appeal in matters regarding centralised applications for certificates, their prior experience in supplementary protection certificate or patent matters shall be taken into account.

Added:Article 30 – paragraph 4 a (new): 4a. Article 166(9) of Regulation (EU) 2017/1001 shall apply to the Boards of Appeal in matters regarding centralised applications for certificates.

Added:Article 34 – paragraph 1 – point j: (j) the date and the examination opinion in respect of each of the designated Member States;

Article 34 – paragraph 1 – point l: (l) where applicable, the filing of an opposition, its status and its outcome, including where applicable a summary of the revised examination opinion;

Article 34 – paragraph 1 – point m: (m) where applicable, the filing of an appeal, its status and the outcome of the appeal proceedings, including where applicable a summary of the revised examination opinion;

Change 6

Changed:Article 44 – paragraph 3: 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. Where an expert is summonsedsummonsed, itthe Office or the relevant panel, as applicable, shall be verifiedverify that that expert is free of any conflict of interest. The period of notice provided in such summons shall be at least 1 month, unless they agree to a shorter period.

Change 7

Changed:Article 56 – paragraph 1: By ...… [OP,[OJ: please insert: five years after the date of application], and every five years thereafter, the Commission shall carry out an evaluation of the application of Chapter III and present a report on the main findings to the European Parliament and to the Council.