During proceedings before the Liège corporate court, the Brussels-based Breeders Trust reached a settlement with a Belgian farm-saved seed potato grower. The grower refused to pay royalties on the area planted with farm-saved seed potatoes of the variety ‘Innovator’, protected by plant breeders’ rights (PBR). The potato grower found new arguments every time for not having to meet his payment obligation.
Registration is Necessary
EU Regulation 2100/94 gives every potato grower in the European Union the right to use part of the harvest in the following year as farm-saved seeds on their own farm. However, several legal provisions apply to the use of farm-saved seeds. First, in Belgium, there is an obligation to register the cultivation of the farm-saved seed potatoes with the Belgian Federal Authority FAVV. Then, there is the obligation to report the use of the cultivated farm-saved seed potatoes of a PBR-protected variety on the website: www.hoevepootgoed.be.
The potato grower involved has met both obligations. However, the farmer still refused to pay the royalties due to Breeders Trust, which made going to court inevitable.
The Settlement
In the settlement, the potato grower acknowledges that he is guilty of violating PBR by using potatoes of the variety ‘Innovator’ as farm-saved seeds on his own farm without paying the royalties due. He will refrain from further infringing the PBR, and has paid the owed royalties to Breeders Trust, plus an amount in compensation for the legal costs incurred by Breeders Trust caused by this infringement.
An Important Signal
For Breeders Trust, this settlement is an important signal. All users of farm-saved seeds of PBR-protected varieties are expected to pay royalties.
Breeders need this income to continue to develop new potato varieties that perform well in our changing climate, that are more resistant to pests and diseases and that are growing efficiently with the available nutrients. Exceptions to the obligation to pay royalties undermine the solidarity of the other users of farm-saved seeds. It remains necessary to sometimes go to court.
This case relates to a Belgian potato grower. Collecting royalties is also a challenge in other countries of the EU. Estimates of missed royalties annually run into millions of euros.
The Right to Question
Based on European Regulation 2100/94, a PBR holder is entitled to question potato growers whether farm-saved seeds of a PBR-protected variety are being used. Potato growers who make use of this must answer the question regarding their use. However, there are no lists of potato growers who use farm-saved seeds. In certain countries, farms may not be approached without information about their use of farm-saved seeds, and an indication regarding that use is required.
Combining Information
Identifying the users of farm-saved seeds is a process of bringing together information from different sources. Information from government services that look at potato cultivation from a phytosanitary point of view. Information from the sellers of seed potatoes and ultimately the quantities of potatoes supplied by the grower to the processing industry.
By combining all the information from all these sources, it can be made visible whether the potato growers have been able to grow the number of potatoes produced with the purchased amount of seed potatoes.
It is also important for the processing industry whether a potato grower has paid royalties on the quantity of potatoes supplied. The production of potatoes is only legal if all plant breeders’ requirements are met. No processor wants to process illegally produced potatoes into fries or crisps in his factory.
A New Database
Breeders Trust is working on the development of the PBR Database (www.pbrdatabase.eu). A database in which the flow of seed potatoes is tracked from the breeder to the farmer. Along all the links of the seed potato chain. This initiative is being developed in six countries in the European Union: Belgium, Denmark, Germany, France, Luxembourg, and the Netherlands with the possibility of expanding to other countries at a later date. The companies affiliated with Breeders Trust have selected varieties with which they participate in this project. The PBR Database is a highly secured black box in which all sales data must be uploaded. All traders involved (links in the chain) upload the data to whom they have sold. An intelligent Mass Balance system is used to calculate whether all seed potatoes supplied have been resold to a trader or a farmer. The ultimate goal is to get to know the group of potential farm-saved seed users.
