Although the grant of a Community plant variety right is based on an ex-officio examination, reasons may be given why the CPVO should not have granted protection. For this reason, Article 20 of Regulation (EC) No. 2100/94 (CPVR) provides rules for nullity of a Community plant variety right. Moreover, the right granted should only continue to exist if the variety fulfills after grant of protection the conditions “Uniformity” (Article 8 CPVR) and “Stability” (Article 9 CPVR). If the CPVR no longer complies with these requirements, the CPVO must cancel the right with effect in future according to Article 21 (para. CPVR).
In its decision NADORCOTT the General Court confirmed that under Article 20 (novelty of CPVRs) and 21 (cancelation of CPVRs) any person may after plant variety has been granted inde-pendently of an appeal lodged before the Board of Appeal apply to the Office for a declaration that the right is null and void or to have it cancelled on the ground that the conditions laid down in Article 7 to 10 of the CPVR were not complied with (judgement of 31 January 2008, T-95/06 – Federación de Cooperativas Agrarias de la Comunidad Valenciana v. CPVO, EU:T:2008:25, para. 81 – here).
In a decision of 2 September 2016 in appeal case A006/2007-RENV (Lemon Symphony) the BOA had to decide under which conditions the CPVO is obliged through the request by a third party for the cancellation of plant variety right under Article 21 CPVR to initiate cancellation proceedings. The BOA emphasizes that there must exist serious doubts that the conditions to uphold the protection are no longer complied with. There was no justification for allowing a third party to apply in all circumstances and without specific reasons for the cancellation of the registered plant variety right under Article 21 CPVR. With reference to the CJEU’s judgement of 21 May 2015 in case C-546/12P, Schräder v. CPVO, EU:C:2016:2015:332, Para 53-58 – here ) the Board of Appeal confirms that a third party seeking cancellation of a plant variety right must produce evidence and facts of sufficient substance to raise serious doubts as to the continued legal validity of the registered plant variety right.