b'Aspects on Essentially Derived Varieties in the EU MARTIN EKVAD SHARES HIS PERSONAL VIEW ON EDVS.BY: MARTIN EKVAD T he European Union plant vari-ety protection system (EU PVP) isbasedontheUPOV1991 Convention. The concept of essentially derived varieties (EDV) is found in Art 13 of Council Regulation 2100/94 (the EU PVP Regulation). The text of Article 13 is similar but not identical to Art 14 of the UPOV 1991 Act. I will come back to this. The CPVO is the EU Agency tasked by the legislator to implement the EU PVP system. The agency processes applications and takes decisions to grant titles valid throughout the 28 EU Member States. However, the CPVO is not mandated to take decisions on whether a variety is an EDV or not. One reason for this is that it is not considered appropriate that an admin-istrative body who grants titles also set-tles disputes between parties on the scope of a right. Another reason is that PVPs are considered as part of the civil law system, although certain infringements are sub-ject to criminal law, and it is in the first hand up to a holder to defend his intellec-tual property should it not be respected. This means that if parties cannot agree on whether a variety is an EDV or not, the holder of the initial variety may ask a court to rule on the matter.Martin EkvadIn the EU, the holder of the initial variety (IV) and the breeder of the EDV tend in practice to find a business solutionthe EU system relies in the first instance on the marketing of the EDV. However,The CPVO is noton the business to settle their disputes this is not always the case. One reasonand as the last resort on courts, it may be for this is that the rules on how to definemandated to takeimportant to discuss at UPOV level that an EDV leaves room for interpretation. Indecisions if a variety isthis model is reflected as an example in the EU there are very few court cases onthe UPOV EXN on EDVs, which is pres-EDVs which means that jurisprudencean EDV or not. It wouldently not the case. addressing this question has not devel- However, in the EU PVP system EDVs oped. In the absence of other more bind- not be appropriate thatcan be registered by the CPVO. In a nut-ing legal authorities, it is quite probablean administrative bodyshell, the holder of an initial variety and that the UPOV Explanatory Note (EXN)the breeder of an EDV can make a decla-on EDV will be studied and referred to bywho grants titles wouldration to the effect that the EDV in ques-judges although the Explanatory Notestion is in fact an EDV. Such a declaration are not binding law. For these reasons italso settle disputescan be entered into the CPVO register is important for the industry and societybetween parties on thewhich is public. It should be noted that the as a whole that the information in theCPVO does not make an assessment as to UPOV Explanatory Note on EDVs give asscope of a right. whether the technical criteria to establish clear guidelines as possible. The fact thatthe EDV are fulfilled. The CPVO can also 28IEUROPEAN SEEDIEUROPEAN-SEED.COM'