The dispute in the main proceedings and the question referred for a preliminary ruling
21 Kokopelli is a non-profit-making association which sells seed of old vegetable and flower varieties originating from organic agriculture and supplies to its members varieties of vegetables which are not widely cultivated in France.
22 Baumaux is engaged in the business of producing and marketing flower and vegetable seed. In 2005 it brought unfair competition proceedings against Kokopelli, seeking, in particular, lump-sum damages of EUR 50 000, together with the cessation of all advertising in relation to the varieties marketed by Kokopelli.
23 By judgment of 14 January 2008, the tribunal de grande instance de Nancy (Nancy Regional Court) ordered Kokopelli to pay damages to Baumaux for unfair competition. That court found that Kokopelli and Baumaux were operating in the sector of old seed or collectors’ seed, that, of the products which they were marketing, 233 were identical or similar, and that they were supplying the same customers (amateur gardeners) and were therefore competitors. It therefore considered that Kokopelli was engaging in acts of unfair competition by offering for sale vegetable seed which was neither in the French catalogue nor in the common catalogue of varieties of vegetable species.
24 Kokopelli appealed against that judgment to the cour d’appel de Nancy (Nancy Court of Appeal).
25 In those circumstances, the cour d’appel de Nancy decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Are Council Directives 98/95/EC, 2002/53/EC and 2002/55/EC and Commission Directive 2009/145 valid in the light of the following fundamental rights and principles of the European Union, namely, freedom to pursue an economic activity, proportionality, equal treatment or non-discrimination and the free movement of goods, and also in the light of the commitments arising from the [ITPGRFA], particularly in so far as they impose restrictions on the production and marketing of old seed and plants?’
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