The Spanish Supreme Court referred a question to the CJEU for a preliminary ruling in the context of a dispute between José Cánovas Pardo, S. L. and Club de Variedades Vegetales Protegidas, in relation to the exploitation by said company of mandarin trees of the variety called “Nadorcott” without the consent of the latter.

In summary, the relevant facts are that José Cánovas Pardo, S.L. exploited since 2006 a plantation containing 4,457 mandarin trees of the Nadorcott variety. On October 30, 2007, the holder of the rights over the variety requested the aforementioned company to cease the exploitation of the variety. The injunction was repeated on March 30, 2011 by the assignee of the rights (Club de Variedades Vegetales Protegidas).

In November 2011, Club de Variedades Vegetales Protegidas filed the corresponding lawsuit before the Court requesting a declaration of infringement of the exclusive rights over the Nadorcott variety from February 15, 2006 until such time as it ceased.

The Spanish Supreme Court indicated to the CJEU that, according to the national case law on intellectual property, a distinction must be made between a single act of infringement and a continuous act of infringement. In the latter case, the limitation periods are extended for as long as the act constituting the infringement continues. The Supreme Court asks whether such case-law is applicable to the limitation rules laid down in Article 96 of Regulation No 2100/94 and, in particular, whether all actions relating to infringing acts are time-barred where the holder of Community protection has brought his action more than three years after he became aware of the infringing acts and of the identity of their author, or whether only actions relating to acts committed more than three years before the filing of the action are time-barred.

The Court declares:

1) Article 96 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that the three-year limitation period laid down in that provision for the actions provided for in Articles 94 and 95 of that regulation starts to run, irrespective of whether the act of infringement of a protected variety continues and of the date on which that act ceased, on the date on which, first, the Community plant variety right was finally granted and, second, the holder of the Community plant variety right became aware of the existence of the act and the identity of its author.

2) Article 96 of Regulation No 2100/94 must be interpreted as meaning that the actions provided for in Articles 94 and 95 of that regulation relating to a group of acts infringing a protected variety which have been carried out more than three years after, first, Community plant variety rights have been finally granted and, second, the holder has become aware of the existence of each of the acts forming part of that group of acts, considered individually, and of the identity of its author, are to be regarded as time-barred.

CJEU of October 14, 2021 (Case C 186/18).