In a joint letter addressed to the EU Directorate General for Health and Food Safety, AIPH, CIOPORA, Euroseeds and Plantum have requested that the European Commission considers reviewing the Council Regulation (EC) No 2100/94 (Basic regulation) on the protection of Community Plant Variety Rights (CPVR). The joint effort was prompted by the non-inclusion of the Community Plant Variety Rights (CPVR) system in the EU IP Roadmap, the document that draws a plan for the improvement of IP protection laws and mechanisms in the EU [1].
An effective plant breeding sector is essential for a variety of societal goals such as improving sustainable production systems and consumer qualities of agricultural and horticultural products. The European Green Deal and Farm to Fork Strategies will not deliver their goals without plant breeding. Breeders need an effective IP system in order to continue to invest in this important work. It is of utmost importance for breeders and growers that the EU Plant Variety Rights system is robust and effective.
Pointing out a number of provisions in the Basic Regulation that require improvement, the organizations argue that, however robust in the international comparison, the 25-year-old CPVR system fails to adapt to the latest developments in global agriculture, horticulture and plant breeding technologies. Already in 2011, the final report of the Evaluation of the Community Plant Variety Right Acquis [2] had requested an improvement of the Basic Regulation, but no legislative actions have been taken since.
The recent decision of the European Court of Justice (CJEU) in case C-176/18 (Nadorcott) regarding mandarin trees that were commercialised by a licensed grower without permission of the breeder in the period between the application and the grant of the right exposed the weakness of the provisional protection and the protection of harvested material under CPVR. This does not provide an incentive for breeders to commercialize their varieties before a PVR is granted. Especially in the case of fruit trees this is a serious problem as the testing period needed before the right is granted can easily take six years. Furthermore, the limited scope of protection for harvested material is particularly disadvantageous for horticultural varieties that are grown in territories outside the EU with a low-level or no IP protection and are subsequently sold in the EU. This equally affects European breeders and growers, depriving particularly the latter of their competitiveness against cheaper, IP non-compliant imported products. Breeders have also called for a better enforceability of the Farm Saved Seed provision regarding the payment of the remuneration and for a longer duration of CPVR protection for woody crops, flower bulbs and Asparagus.
Next to the joint letter to DG SANTE, which is the European Commission Directorate responsible for Community Plant Variety Rights, the above organisations together with the German [3] and Spanish [4] national seed associations and circa 20 individual breeding companies, especially fruit breeders, have reacted likewise to the public consultation of the IP roadmap by DG Growth, the Commission Directorate responsible for IP rights) [5].
[1] Intellectual property action plan <https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12510-Intellectual-Property-Action-Plan>
[2] Evaluation launched by the Directorate-General for Health and Consumers in collaboration with GHK – April 2011.
[3] Bundesverband Deutsche Pflanzenzüchter (BDP)
[4] Anove
[5] Intellectual property action plan. Public feedback. <https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12510-Intellectual-Property-Action-Plan/feedback?p_id=8196436> 24.08.2020
