“Nadorcott”

• 1. Plant variety rights, like other intellectual property rights broadly considered (e.g. patents or registered designs), are alien to the effect provided for in Art. 85 of the Commercial Code (statute of limitations).

• 2. The scope of the breeder’s ius prohibendi and its exhaustion are governed by the plant variety legislation itself, and no other forms or means of exhaustion of the right of ownership over tangible assets apply.

• 3. There is a distinction between infringement claims as such, which concern acts of infringement subsequent to the grant of a Community plant variety right, and provisional protection in respect of acts prior to the grant.

• 4. The planting of a protected variety and the harvesting of the fruits from plants of that variety may not be regarded as an “act of production or reproduction (multiplication)” of variety constituents within the meaning of Art. 13(2)(a) of Regulation No. 2100/94.

• 5. A breeder may not prohibit the use of variety constituents for the sole purpose of producing an agricultural harvest, but merely acts leading to the reproduction and propagation of the protected variety.

• 6. The activity of planting a protected variety and harvesting the fruit thereof, which is not liable to be used as propagating material, only requires the authorisation of the holder of the Community plant variety right relating to that plant variety where the conditions laid down in Art. 13(3) of that regulation are fulfilled.

• 7. Article 13(3) of Regulation No. 2100/94 is interpreted as meaning that the fruit of a plant variety, which is not likely to be used as propagating material, may not be regarded as having been obtained through the “unauthorised use of variety constituents” of that plant variety, within the meaning of that provision, where those variety constituents were propagated and sold to a farmer by a nursery in the period between the publication of the application for a Community plant variety right in relation to that plant variety and the grant thereof.

• 8. The essential prerequisite for the application of the provisional protection provided for in Art. 95 of the Regulation is that a person carries out an act that would be prohibited subsequent thereto.