A protection for plant varieties which covers the entire European Union is examined and granted by a Community Office located in Angers (France).
The European Commission Regulation N° 2100/94 of July 27, 1994, established a Community Protection for New Varieties of Plants (the Community Protection). It also provided the grant of a Community “certificate” after a centralised examination procedure before the Community Plant Variety Office (the Community Office), based in Angers (France).
Like the Community trademark and designs, the Community Protection is valid in all countries of the European Union. It has the same consequences, in all of these countries, as a national right.
Community plant variety protection coexists with national protections on new variety of plants. However, if before to the grant of a Community Protection its holder was granted a national protection, he cannot use this last one as long as the Community Protection has not expired.
A variety can be protected by a Community Protection as long as it is novel, distinct, uniform and stable.
Plant variety definition
The EC Regulation provides the exact same definition as the one stated in the UPOV Convention. A plant variety is defined as “a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder’s right are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of the said characteristics and considered as a unit with regard to its suitability for being propagated unchanged”.
Plant Variety Novelty
A variety shall be deemed to be new if, at the date of application, variety constituents (breeding or vegetable proliferation material) or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder for purposes of its exploitation.
Plant variety distinctness
Varieties are distinct when clearly distinguishable, by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of the application.
Plant variety uniformity
A variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics which are included in the examination for distinctness, as well as any others used for the variety description.
Plant variety stability
A variety shall be deemed to be stable if its relevant characteristics remain unchanged after repeated reproductions or propagations.
Breeders can apply for a Community Protection, either before the Community Office, or before a national agency.
Breeders can benefit from a right of priority for a 12 months period. If an applicant has already applied for a national new variety protection in a Member State or in a Member of the International Union for the Protection of New Varieties of Plants (UPOV), and the date of application is within 12 months of the filing of the earlier application, the applicant shall enjoy a right of priority for the earlier application as regards the application for the Community plant variety right, provided the earlier application still exists on the date of application.
The application must contain a request for the grant of a Community plant variety right, the identification of the botanical taxon, information identifying the applicant, the breeder’s name and the assurance that, to the best of the applicants’ knowledge, no further persons have been involved in the breeding, or discovery and development, of the variety.
The application must also contain the variety’s provisional and technical descriptions as well as its geographical origin.
Finally, the variety must be designated by a denomination that it is not liable to give offence in one of the Member States or is not contrary to public policy. It must not be liable to mislead or to cause confusion concerning its characteristics, the value or the identity of the variety, or the identity of the breeder. Further, a variety denomination may be imposed to the applicant because a variety must have the same denomination in every European Union Member State.
If no denomination is provided, the Community Office may declare the application inadmissible.
The Community Office keeps a Community Protection registry containing information on all applications. This information is published in the Community Office’s Official Bulletin within two months from the application’s filing.
This publication constitutes the starting point of the protection.
As from the publication date, the application can be opposed to others and may also be used in infringement proceedings for later facts.
Furthermore, as soon as the application is filed and before the Community Office comes up with a rejection or granting decision of a Community Protection, every person may express before the Office their observations and objections concerning the Community Plant Variety Protection application.
Objections relating to the suggested variety denomination can be formulated within a three months period as from the denomination publication.
The request is then examined by the Office.
Examination of the application for Community Plant Variety Protection
Three steps must be distinguished in the examination procedure.
During this formal examination, the Community Office checks if the application complies with the conditions governing applications as described hereinbefore. It controls whether a right of priority has been claimed and whether the required fees have been paid within the specified time limit.
The Community Office gives the applicant an opportunity to correct any deficiencies that may have been identified.
The Office examines whether the variety may be the object of a Community plant variety right (i.e. whether the variety is new), whether the applicant is entitled to file an application and whether the proposed variety denomination is acceptable.
Following the previously mentioned examination, the Office arranges for a technical examination relating to compliance with the conditions of novelty, distinctness, uniformity and stability.
The Office determines, through general rules or through requests in individual cases, when, where and in what quantities and qualities the material for the technical examination and reference samples are to be submitted.
For the purposes of the technical examination, the Office makes the variety growing or undertakes any other investigations required.
The applicant has the obligation to submit samples that comply with the Office standards. Samples must be wholesome, non-infected by a virus or any parasitic decease.
The Community Office may entrust administrative authorities, not necessarily dependant from State Members, and any other technically qualified body, to proceed with the technical examination. Their designation depends on their speciality and their scientific qualifications.
An examination report is sent to the applicant who is allowed to solicit a complement of expertise if to his opinion the report is incomplete or insufficient.
In accordance with the results of the examination procedures, the Community Office may either issue the certificate or refuse to grant any Community right.
The grant decision comprises a description of the plant variety. It is also notified to the applicant and published in the Community Office Official Bulletin.
The Community Office can reject the application at the end of each of the three previously described examination procedures. The rejection decisions are subject to an appeal before the Boards of appeal of the Office.
Community Plant Variety Protection nullity
The Community Office has jurisdiction to hear nullity actions against Community Plant Variety rights.
The Office declares the Community plant variety right null and void if it is established that the variety lacks of distinctive character, novelty or uniformity and stability characters at the filing date.
The Community Protection can also be declared void in case the right has been granted to a person who is not entitled to it.
Duration and maintenance
The protection starts from the issuance of the Community Protection certificate and may last for a period of 25 years, or 30 years in case of varieties of grapes and and trees if annual fees are regularly paid.
The Community Office cancels the Community Plant Variety right retroactively if it is established that the samples coming from the vegetative collection preserved by the holder and submitted by him, no longer comply with the conditions of uniformity. The cancellation may be made effective at the time the default showed up (i.e. a time prior to cancellation).
In fact, during the entire duration of the Community Protection, the Office shall verify the continuing unaltered existence of the protected variety. For this purpose, a technical verification shall be carried out. The holder is required to provide all the information necessary to assess the continuing unaltered existence of the variety. He may also be required, in accordance with the instructions given by the Office, to submit material of the variety so as to permit to verify whether appropriate measures have been taken to ensure the continuing unaltered existence of the variety.
Thus, the breeder is obliged to permanently preserve a vegetative collection of the new protected variety as well as its reproduction material.
Rights conferred by the Community Plant Variety Protection
The Community Plant Variety Protection extends to the following different elements of the protected plant:
The holder can only exercise his rights following this order and in subsidiary manner.
Furthermore, the Community Protection extends to varieties that essentially derive from the protected variety, where this variety is predominantly derived from the initial variety and is distinct in accordance with the initial variety’s definition.
Production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting from the Community, importing to the Community and stocking all or a part of the plant variety, as well as its constituents and harvested material require the holder’s authorization.
An infringement action may be brought against persons that proceed to these acts without the holder’s authorization.
However, are not considered infringement acts, the ones done privately and for non-commercial, purposes, for experimental purposes and for the purpose of breeding, or discovering and developing other varieties.
Furthermore, farmers are authorized to use for propagating purposes in the field, on their own holding the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety, which is covered by a Community plant variety right.
This “farmer privilege” only applies to agricultural plant species of fodder plants, cereals, potatoes, oil and fiber plants.
The legitimate interests of the breeders are safeguarded as farmers shall be required to pay an equitable remuneration to the holder, which is lower than the amount charged for the licensed production of propagating material of the same variety in the same area.
The holder of a Community Protection certificate, as well as exclusives licensees may bring an infringement action before the Courts.
An infringement claim shall be time barred after three years from the time at which the Community plant variety right has finally been granted and the holder has had knowledge of the act and of the identity of the party liable or, in the absence of such knowledge, after 30 years from the termination of the act concerned.
National Courts of the EU countries have jurisdiction to hear all litigation matters relating to Community Plant Variety rights.
The infringement action shall be brought first before the Courts of the Member State or another Contracting Party to the Lugano Convention in which the defendant is domiciled or has his seat or, in the absence of such, has an establishment.
The competent Courts apply their national law, including their private international law.
Specific infringement sanctions are decided by the Courts according to their national laws.