WRITTEN QUESTION E-1667/01

by Jan Mulder (ELDR) to the Commission

(14 June 2001)

Subject: Community provisions on the protection of new plant varieties and enlargement negotiations

It is very important that Community provisions on the protection of new varieties be adopted by the new Member States upon accession at the latest and without any transitional periods. However, a situation may arise with regard to the protection of varieties which could be detrimental to the functioning of the internal market. In certain new Member States, it will be possible to cultivate varieties, which are protected by national provisions in other Member States, without having to pay a licence fee thus giving rise to distortions of competition and interfering with the proper functioning of the internal market.

1. Can the Commission indicate what results have been achieved thus far with regard to plant variety rights in the negotiations for accession? On the basis of these results, can the Commission give an assurance that new varieties listed in the Community register of plant varieties, which have already been rejected by candidate states pursuant to national provisions will be protected in future?

2. Can the Commission indicate what possibilities there are in order to afford protection to plant variety rights in any new Member States for varieties which currently enjoy protection in the Member States under national legislation but which pursuant to Regulation 2100/1994(1) could not be not included in the Community register of varieties despite the derogation under Article 116?

3. In the enlargement negotiations, is the Commission prepared to offer the possibility of including varieties, which currently only enjoy protection in candidate states, in the Community register of varieties, in a manner comparable to that pursuant to the derogation under Article 116, provided that a specific period is set to this end as of the date of accession and that the new Member States adopt the Community register of varieties in its entirety upon accession?

(1) OJ L 227, 1.9.1994, p. 1.

Answer given by Mr Byrne on behalf of the Commission

(17 September 2001)

In the Community, plant variety protection is available as follows:

- Community plant variety rights under Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights(1), as amended by Regulation of 25 October 1995,

- Plant variety rights under national laws of 13 of the current Member States of the Community.

Community plant variety rights have uniform effect within the territory of the Community, whilst the national plant variety rights have their effects restricted to the territory of the Member State concerned.

Cumulative protection by a Community plant variety right and a national plant variety right in a Member State is prohibited.

With the accession of new Member States, and in the absence of any derogation or transitional period, the effect of Community plant variety rights already granted prior to the accession would automatically extend to their respective territories, and the prohibition of cumulative protection would equally apply there.

The problem referred to by the Honourable Member, concerning the cultivation of varieties in an area of the Community in which there is no protection, had already been noted since the operation of the Common Catalogue system established by Community law on the marketing of seeds and other propagating material and has been one of the incentives for setting up a Community plant variety rights system.

1. Requests for derogation from the Community plant variety rights system, or for transitional periods as regards the implementation thereof would have to be notified by candidate countries to the Accession Conference as negotiating points in their position papers.

Not all of the candidate countries have reached a stage in their preparation for accession to the Community as to submit a negotiating position paper regarding the agriculture chapter.

Currently, with 11 position papers received regarding the veterinary and phytosanitary part of agriculture chapter, 9 candidate countries have made a clear statement that they accept the Community acquis in the field of plant variety rights, and will not seek any derogation or transitional period as regards the implementation thereof.

Without prejudice to the outcome of the negotiations on requests for temporary derogations in line with those adopted under Article 116 of the Regulation on Community plant variety rights for the initial phase of the system, all varieties protected under the Community system would be automatically protected in the new Member States upon accession, irrespective of whether they have been the subject of a procedure for national protection in those countries or not.

This geographical extension of protection would not apply to varieties protected under national plant variety rights in one or more of the current Member States, even if they are included in one of the Common Catalogues of Varieties set up by the Commission.

2. National plant varieties right systems of current or future Member States are not under Community responsibility, and the Commission cannot therefore identify what possibilities there are to afford protection of plant varieties in any new Member States for varieties which currently enjoy protection in the present Member States.

3. The Commission has already offered the possibility of opening access to Community plant variety protection for varieties which currently only enjoy protection in candidate countries. The conditions should be comparable to those of the derogation provided in Article 116 (1) and (2) of the Regulation on Community plant variety rights.

(1) OJ L 258, 28.10.1995.