b"NADORCOTT RECONSIDEREDTHE FATE OF THE CASCADE FOR THE BREEDER OF NEW VARIETIES.BY: HUIB GHIJSENBREEDING HISTORY the trade could be hampered. After many discussions WHY IT MATTERS In 1988, plant breeder El Bachir Nadori from theand changes, the final text provided that the protec-In 2019, theInstitut National de la Recherche Agronomiquetion included harvested material on the condition European Court(INRA) in Morocco developed the first mandarinthat the breeder had had no reasonable opportunity of Justice made avariety without seeds, a significant characteristic forto exercise his right on the propagating material.controversial rulingthe crop. Consequently, the breeder in 1995 soughtFrom the discussions in multiple meetings and that exposedprotection for the new variety, which he namedconsultations with breeders organizations, it is obvi-loopholes inNadorcott, under the EU Regulation EC/2100/94ous that the cascade applies exclusively to the pro-the provisionalfor Community Plant Variety Rights (PVR). tected variety. Article 14(2) of UPOV 1991 specifies protection andDuring the extensive nine-year testing period forthat propagating material from a protected variety is the protection ofthe PVR requirements between the varietys applica- used to produce the harvested material. harvested materialtion and granting, numerous Spanish growers seized under the UPOVthe opportunity to produce and harvest the valuableProvisional ProtectionPlant Varietymandarins without paying any license fees to theEvery new variety must undergo testing for Protection (PVP)breeder. This led to a series of legal cases, ultimatelyDistinctness, Uniformity and Stability System. That ruling,resulting in the preliminary ruling by the Court of(DUS) to qualify for protection. the NadorcottJustice of the European Union (CJEU) in 2019.This is a process that may case, had anThe CJEU's decision is important for inter- take one or more years, adverse impactpreting the Regulation and the UPOV Convention,dependingonthe on the generalspecifically concerning the scope of the provisionalcrop. Therefore, it interpretation ofprotection during the period between application andwas decided in the the protection ofgrant. Moreover, its relevance goes beyond the period harvested materialof provisional protection, as it also affects the possi-of protectedbility of acting against harvested material exported varieties in thefrom a territory where a variety is not protected, into European Uniona territory where that variety has protection.and, more broadly, in all UPOVTHE HISTORY OF THE UPOV Member States.CONVENTION 1991The latest revision of the UPOV Convention dates back to 1991, where the primary objective was to broaden the scope of the PVP to encompass the harvested material of a protected variety. This was especially important for ornamental and fruit species where the flowers and fruits are harvested from vege-tatively produced propagating material, such as trees and bushes, that can be harvested for many years. As these harvested products could not be protected under UPOV 1978, there was a necessity to include them.The Evolution of the Cascade ProvisionDuring preparatory UPOV discussions in 1989, it became clear that the extension of the scope of protec-tion to harvested material was, for a number of UPOV Member States, only acceptable on the condition that the owner of the protected variety be compelled to exercise the breeders rights first on the propagating material. These Member States feared that otherwise 32ISEED WORLD EUROPEISEEDWORLD.COM/EUROPE"