••easftaeasKEi 
iAKSBïsses COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(93) 104 final 
Brussels, 29 March 1993 
Amended proposal for a 
rrniiuni REGULATION (EEC) 
on Community plant variety rights 
^ y- :> 'i 
Arlfeaassa 
t^ElŒS (presented by the Commission pursuant to Article 149(3) 
of the EEC-Treaty) 
EXPLANATORY MEMORANDUM 
At its session of 28.10.1992, the Europoan Parliament doliverod ito opinion 
on the Commission proposal contained in document COM(90)347-final, 
concerning a proposal for a Council Regulation on Community plant variety 
rights. 
The present amended proposal takes into account amendments suggested by the 
European Parliament on which the Commission has taken a favourable 
position. 
****** 
Amended proposal for a 
COUNCtL REGULAT10M IEEC! 
on Community plant variety rights 
In response to the opinion delivered by the European Parliament(1) on the 
proposal for a Council Regulation sent by the Commission to the Council on 
6 September 1990 on Community plant variety rights, and in accordance with 
the third paragraph of Article 149 of the Treaty establishing the European 
Economic Community, the Commission has decided to amend the aforementioned 
proposal as follows: 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article S 
Object of Community plant variety right 
1. Varieties of all botanical taxa and hybride of 
taxa may form the object of Community plant 
variety rights. 
2. For the purpose of this Regulation, "variety" 
shall be taken to mean any group of plante as 
well ae parte of those plants aB far as they 
comprise more than a cell or cell line and are 
uauable for the production of plante, both 
referred to hereinafter ae "individuale", 
provided that: 
(a) it may be defined ae an entity on the 
basis of the expression of the 
characterietice of its individuals or of a 
particular distribution of such 
expreeeione in its individuale, 
(b) the expreeeione of the characterietice of 
its individuals are hereditary, or 
reproduceable in ueing repeatedly 
individuale of its components, and 
(c) the combination of expressions of the 
characteristics of its individuals ie not 
dietinctive for all individuals of a 
botanical taxon. 
In cases where the commercial use of a variety 
doee not imply the production of entire plants, 
plants" within the meaning of the above 
definition shall be taken to mean those parts 
of plants which have to Jbe produced for the 
purpose of ueing the variety. Article 5 
Object of Community plant variety right 
Unchanged 
For the purpose of this Regulation "variety" 
shall mean a plant grouping within a single 
botanical taxon of the lowest known rank, which 
grouping can be: 
- defined by the expression of the 
characterietice resulting from a given genotype 
or combination of genotype, 
- 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. 
(1) OJ No C 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article 11 
Entitlement to Community plant variety rights Article 11 
Entitlement to Community plant variety rights 
1. The original breeder or discoverer of the 
variety or hie successor in title shall be 
entitled to the Community plant variety right. The breeder or discoverer of the variety or his 
successor in title shall be entitled to the 
Community plant variety right. 
2. If two or more pereons have bred or discovered 
the variety jointly, entitlement shall be 
vested jointly in them or their respective 
successors in title. Unchanged. 
Where a variety is derived essentially from 
individuals of only one other variety (source 
variety) for which a Community plant variety 
right has been granted under this Regulation, 
entitlement to the right referred to in 
paragraph 1 shall likewise be vested jointly in 
the holder of the plant variety right in 
respect of the source variety and the original 
breeder or discoverer of the derived variety, 
or his successor, if: 
(a) the derived variety IB the result of a 
mutation, or 
(b) the derived variety exhibits predominantly 
the same exprssions of most of the 
important characteristics as the source 
variety, and no evidence is available of 
an impact on economically relevant 
characteristics as compared to the source 
variety. Deleted 
Where not a Community plant variety right but a 
national industrial property right has been 
granted in one of the States referred to in 
Article 12(1) to another party for the source 
variety, the provisions of paragraph 3 shall 
apply mutatis mutandis, providing the law of 
the State concerned contains a provision 
comparable to paragraph 3. Deleted 
If the breeder or discoverer is an employee, 
the entitlement to the Community plant variety 
right shall be determined in accordance with 
the national law applicable to the employment 
relationship in the context of which the 
variety was bred or discovered. If the breeder or discoverer is an employee, the 
entitlement to the Community plant variety right 
shall be determined in accordance with the 
national law applicable to the employment 
relationship in the context of which the variety 
was bred or discovered. 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
6. Where entitlement to a Community plant variety 
right is vested jointly in two or more persons 
pursuant to paragraphs 2 to 5, one o more of 
them may empower the others by written 
declaration to such effect to claim entitlement 
thereto. Where entitlement to a Community plant variety 
right is vested jointly in two or more pereone 
pursuant to paragraphs 2 or 3, one or more of 
them may empower the others by written 
declaration to such effect to claim entitlement 
thereto. 
7. For the purposes of proceedings before the 
Office, the first applicant shall be deemed to 
be entitled to claim the entitlement to the 
Community plant variety right. This shall not 
apply if the Office is aware, by the time the 
decision on the aplication for grant of the 
Community plant variety right is taJcen, or it 
is shown by a final judgment delivered with 
regard to a claim for entitlement pursuant to 
Article 95(4), that entitlement is not or is 
not solely vested in the first applicant. 
Where, in the event referred to in the second 
sentence, the identity of the sole or other 
person entitled has been determiend, the latter 
may enter the proceedings ae applicant. Deleted. 
Article 13 
Rights of the holder of a Community plant 
variety right and prohibited acte Article 13 
Rights of the holder of a Community plant 
variety right and prohibited acts 
A Community plant variety right shall have the 
effect that the holder or holders of the 
Community plant variety right, hereinafter 
referred to as "the holder", shall be entitled 
to effect the acts set out in paragraph 2 in 
respect of the variety. Unchanged 
All other persons shall be prohibited, without 
prejudice to the provisions of Articles 14 and 
IS, save with the consent of the holder, from 
reproducing or propagating the variety or from 
offering, disposing of to others, using or 
importing into the Community, exporting from 
the Community or possessing for any of the 
abovementioned purposea individuale or other 
parte of plante or harveeted material of the 
varieties or products obtained directly 
therefrom, all, i.e. individuale, other parte 
of plante or harvested material and products 
directly obtained, referred to hereinafter ae 
"material". All other persons shall be prohibited, without 
prejudice to the provieione of Articles 14 and 
15, save with the consent of the holder, from 
reproducing or propagating the variety and, to 
the extent specified in implementing rules 
pursuant to Article 109, the variety which ie 
essentially derived from the protected variety, 
where the protected variety is not iteelf an 
essentially derived variety, or from offering, 
disposing of to others, ueing or importing into 
the Community, exporting from the Community or 
possessing for any of the abovementioned purposes 
individuale or other parte of plante or harveet&d 
material of the varietieB ae referred to above or 
producte obtained directly therefrom, all, i.e. 
individuale, other parte of plants or harveeted 
material and producte directly obtained, referred 
to hereinafter ae "material". 
*1 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
3. If in the case of Article 11(3) no Community 
plant variety right has been granted for the 
derived variety, all other persons shall be 
prohibited, save with the consent of the holder 
of the source variety, from effecting acts of 
the type set put in paragraph 2 in respect of 
the derived variety. Deleted 
The exercise of the rights conferred by 
Community plant variety rights may not violate 
any provisions adopted on the grounds of public 
morality, public policy or public security; the 
protection of health and life of humans, 
animals or plants; the protection of the 
environment; or the safeguarding of 
competition, trade and agricultural production. The exercise of the rights conferred by Community 
plant variety rights may not violate any 
provisions adopted on the grounde of public 
morality, public policy or public security; the 
protection of health and life of humane, animale 
or plante; the protection of the environment ; or 
the safeguarding of competition, trade and 
agricultural production. 
For the purpose of safeguarding agricultural 
production in the case of plant species 
governed by Community rules on the marketing of 
seeds or other propagating material, 
authorization may be given at Community level 
and in accordance with the procedure laid down 
in the implementing rules pursuant to 
Article 109, to permit growers of propagating 
material of a variety for which a Community 
plant variety right has been granted to plant 
on their own holding harvested material 
obtained therefrom. Such authorization may be 
given only under conditions which shall be set 
up in an appropriate manner at Community level, 
upon initiative of the Commission. 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article 13a (new) 
Derogation from Plant variety rights 
By way of derogation from Article 13, and for the 
purpose of safeguarding agricultural production, 
farmers may without prejudice to the provisions 
of paragraph 2, use on their own holding for the 
purposes of reproduction or propagation - either 
by themselves or with the help of others -
harvested material obtained through cultivation 
on their own holding of propagating material of a 
variety coming under the Community variety 
protection. 
Any genus and species excluded by special 
exemption from the provisions of paragraph 1 of 
this Article, together with any other additional 
requirement or limitation imposed by such 
exclusion, shall be the subject of implementing 
rules pursuant to Article 109. 
Where these requirements include the payment of a 
remuneration for the use referred to in 
paragraph 1, this remuneration must he sensibly 
lower than the amount charged for the licensed 
production of propagating material of the same 
variety. 
The Member States shall include in their 
legislation measures penalizing the flight or 
illegal handling of propagating material of the 
variety for which a Community plant variety right 
has been obtained, except for the cases and 
practices set out in this Article. 
(* 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article 14 
Limitation of the effects of 
Community plant variety rights Article 14 
Limitation of the effects of 
Community plant variety rights 
The rights conferred by a Community plant variety 
right shall not extend to: 
(a) acts relating to products that do not 
constitute material ; 
(b) acts effected privately and for non­
commercial purposes; 
(c) acts effected for experimental purposes; 
(d) acts effected for the purpose of discovering 
or creating new varieties; 
(e) without prejudice to the provisions of 
Article 13 (3), acts effected for the purpose 
of using the new varieties discovered or 
created pursuant to subparagraph (d), unless 
individuals of the protected variety have 
to be used repeatedly for the production 
of the new variety for commercial 
purposes, or 
the new variety or the material of this 
variety comes under the protection of a 
property right which does not contain a 
comparable provision: 
(f) acts whose prohibition would violate the 
provisions laid down in Article 13(4). The rights conferred by a Community plant variety 
right shall not extend to: 
(a) acts relating to products that do not constitute 
material ; 
(b) acts effected privately and for non-commercial 
purposes ; 
(c) acts effected for experimental purposes ; 
(d) acts effected for the purpose of discovering or 
creating new varieties; 
(e) without prejudice to the provieione related to 
essentially derived varieties pursuant to 
Article 13 (2), acts effected for the purpose of 
using the new varieties discovered or created 
pursuant to subparagraph (d), unless individuals 
of the protected variety have to be used 
repeatedly for the production of the new variety 
for commercial purpoaea, or 
(f) acte whoee prohibition would violate the 
provisions laid down in Article 13(3) or 13a. 
Article 18 
Duration of Community plant variety rights Article 18 
Duration of Community plant variety rights 
The term of the Community plant variety right 
shall run until the end of the 30th calender 
year, or, in the case of varieties of vine and 
tree species, until the end of the 50th 
calendar year, following the year of grant. The term of the Community plant variety right 
shall run until the end of the 20th calendar 
year, or, in the case of varieties of vine and 
tree species, until the end of the 25th calendar 
year, following the year of grant. 
A Community plant variety right shall lapse 
before the expiry of the terms laid down in 
paragraph 1 if the holder surrenders it by 
sending a written declaration to such effect to 
the Office, and with effect from the day 
following the day on which the declaration is 
received by the Office. Unchanged 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article 89 
Cumulative protection prohibited 
Varieties that are the subject matter of 
Community plant variety rights shall not be 
patented nor be the subject of national plant 
variety rights. Any rights granted contrary to 
the first sentence shall be ineffective. Article 89 
Cumulative protection prohibited 
Plant varieties shall not be patented. This 
prohibition shall be interpreted in accordance 
with the definition of variety laid down in 
Article 5(2) of this Regulation. Nor shall 
varieties that are the subject matter of 
Community plant variety rights be the subject 
matter of any other form of national plant 
variety rights. Any rights granted contrary to 
this paragraph shall be ineffective. 
Where the holder has been granted another right 
ae referred to in paragraph 1 for the same 
variety prior to grant of the Community plant 
variety right, he shall be unable to invoke the 
rights conferred by such protection in respect 
of the variety for as long as the Community 
plant variety right remains effective. 2. Unchanged 
Article 103 
Penalties for infringements of 
Community plant variety rights Article 103 
Penalties for infringements of 
Community plant variety rights 
Member States shall ensure that on 1 July 1992 at 
the latest the same provisions are made applicable 
to penalize infringements of Community plant 
variety rights as apply in the matter of 
infringements of corresponding national industrial 
property rights. Member States shall ensure that on at 
the latest the same provisions are made applicable to 
penalize infringements of Community plant variety 
rights as apply in the matter of infringements of 
corresponding national industrial property rights. 
Article 112 
Transitional provisions Article 112 
Transitional provisions 
The Office shall be established in good time to 
assume fully the tasks incumbent upon it pursuant 
to this Regulation as from 1 July 1992. The Office shall be established in good time to 
assume fully the tasks incumbent upon it pursuant to 
this Regulation ae from . 
Article 113 
Entry info force 
This Regulation shall enter into force on 
1 April 1991. 
Articles 1, 2, 3, 5 to 28 and 48 to 102 shall 
apply from 1 July 1992. 
This Regulation shall be binding in its entirety 
and directly applicable in all Member States. Article 113 
Entry info force 
This Regulation shall enter into force on 
Articles 1, 2, 3, 5 to 28 and 48 to 102 shall apply 
from 
This Regulation shall be binding in its entirety and 
directly applicable in all Member States. 
Î 

ÏÇQA.V r.nr.i -s Ane 
COM (93) 104 final 
DOCUMENTS 
EN 03 02 
Catalogue number : CB-CO-93-126-EN-C 
ISBN 92-77-53769-8 
Office for Official PubKcations of the European Communities 
1^2985 Luxembourg 
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