Proposal for a COUNCIL REGULATION (EC) providing for an extension of the duration of a Community plant variety right in respect of potatoes
Date: 1996-03-13
Institutions: European Commission
Subjects: European patent, industrial property, patent law, plant propagation, potato

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  13.03.1996 
COM(96) 95  final 

Proposal  for a 

COUNCIL REGULATION (EC) 

providing for an extension of the duration of a Cononunity plant variety 
right in respect of potatoes 

(presented by the Commission) 

EXPLANATORY  MEMORANDUM 

Council Regulation  (EC) No 2100/94 on Community plant variety  rights1 has 
established  a new Community  regime which provides  for the grant, at 
Community level, of plant variety rights, a specific  form of industrial 
property  rights system for new plant varieties. These rights will have a 
direct and uniform effect throughout  the Community. 

For the purpose of the implementation of a Regulation, a Community Plant 
Variety Office, hereinafter  referred to as "the Office", has legally been 
established  on 01.09.1994, the date of entry into  force of the Regulation. 

If granted by the Office, the term of a Community plant variety right 
shall, in principle, run until the end of the 25th calendar year or, in the 
case of varieties  of vine and tree species, until the end of the 30th 
calendar year, following  the year of grant. The Regulation provides  for the 
possibility  of extending  these terms up to a further  five years. To this 
end, an implementing  regulation may be adopted by the Council, acting by 
qualified majority on proposal  from the Commission. 

The attached Commission proposal aims at providing  for an extension  in the 
case of plant varieties  of potatoes. The need  for such proposal  at this 
moment  results  from the following: 
1.  It is a recognised principle  that breeding of new potato  varieties 

entails  specific technical difficulties  and promises  equitable benefit 
at a fairly late stage. Both, the research expenses  and the successful 
establishment  of even the best potato varieties  on the market can hence 
not be compared with other agricultural crops. 
This  recognised principle is reflected in the national legislation of 
most of the Member  States of the European Union being also Member of 
the International Union  for the Protection of New Varieties  of Plants 
(UPOV), which provide  for an extension of the duration of a national 
property  right in the case of potatoes by a further 5 years in 
comparison with the other agricultural  species. As the European 
Community also envisages accession to UPOV by ratifying  the convention 
of 1991, it is appropriate to align the policy on the duration of 
protection  for potato varieties. 

0J No L 227, 1.9.1994, p. 1, as last amended by Council Regulation  (EC) 
No 2506/95 of 25.10.1995, 0J No L 258, 28.10.1995, p. 3 

I 

- 2 -

2.  The Office  has  been  operational  since  1995  and  has  received  more  than 

3200  applications  for  Community  plant  variety  rights  amongst  which 

about  200  applications  relate  to  potato  varieties  (state  as  at 

1.2.1996). 

It  is  probable  that  the  first  Community  plant  variety  rights  will  be 

granted  in  1996  by  the Office. 

In  consequence,  expectations  of  potato  breeders  the  legitimacy  of  which 

is  explained  above  will  soon  have  found  shape  in  Community  plant 

variety  rights.  Immediate  action  by  the  European  Community  is  hence 

required  in  order  to  allow  an  appropriate  planning  for  potato  breeders 

in  future. 

Subsidiarity 

a)  What  are  the  objectives  of  the measure  in  relation  to  obligations  with 

which  the  Community  is  charged? 

The  measure  pursues  the  same  objective  as  the  Regulation  No  2100/94, 

i.e.  to  ensure  compatibility  with  the  requirements  of  the  single  market 

concept;  the  proposal  does  not  affect  the  co-existence  of  national 

regimes  with  the  Community  system. 

b)  Does  the measure  arise  from  an  area  where  there  is  exclusive  Community 

competence  or  where  competence  is  shared  with  Member  States? 

Exclusive  Community  competence  in  respect  of  the  Community  systems  of 

industrial  property  rights. 

c)  What  forms  of  actions  are  at  the  disposal  of  the  Community? 

Legislation  implementing  an  already  adopted  regulation,  exclusively. 

d)  Is  uniform  regulation  necessary  or  would  a directive  imposing  general 

objectives  suffice,  leaving  execution  to be  carried  out  at  Member 

State's  level? 

Uniform  regulation  is  necessary. 

The  proposal  would  have  no  impact  on  small  or medium-sized  enterprises  and 

no  financial  implications  for  the  budget  for  the  European  Union. 

3 

COUNCIL REGULATION  (EC) 

providing  for an extension  of the terms of a 

Community plant variety  right in respect of potatoes 

PROPOSAL FOR 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard to the Treaty establishing  Che European Community, 

Having  regard to Council Regulation  (EC) No 2100/94 of 27 July  1994 on 
Community plant variety  rights1, as amended by Regulation  (EC) No 2506/95 
of 25 October  19952, and in particular Article  19  (2) thereof, 

Having  regard to the proposal  from the Commission, 

Whereas  it is recognised  that technical difficulties  in potato breeding 
require  expenditure of research activities  for a long period  in comparison 
with the overwhelming majority of all the other agricultural crops; 
whereas, in addition, experience on the market has shown that a new potato 
variety  reveals  its commercial value only in long terms in comparison with 
those agricultural  species  requiring also long term research activities; 
whereas,  for these reasons, an equitable  refunding  of the research 
activities  is only possible at a fairly  late stage of the protection in 
comparison with the other agricultural crops; 

Whereas  in order to establish a legal environment  conducive  to achieve such 
equitable  refunding, an extension of the initial duration of a Community 
plant variety  right by further  five years  in the case of potatoes  is the 
most appropriate measure; 

Whereas  such extension should apply to all valid Community plant variety 
rights which were granted prior to the entry into  force of this  Regulation 
or which will be granted  in future unless  such a right is duly  surrendered 
by the holder or terminated by a decision of the Community  Plant Variety 
Office; 

OJ No L 227, 1.9.1994, p.l 
OJ No L 258, 28.10.1995, p.3 

k 

-  2 -

Whereas the period of extension should be reduced if a national property 
right or rights in respect of the same variety have been effective in a 
Member State prior to the grant of a Community plant variety  right and 
accordingly, would have allowed  a breeder  to take already advantages  of his 
variety; whereas  a comparable principle was already laid down, under the 
transitional  regime of Article  116 of the Basic Regulation; 

HAS ADOPTED THIS REGULATION: 

Article 1 
1.  The duration of a Community plant variety  right in respect of varieties 
of potatoes  shall be extended until  the end of the 5th calendar year, 
following  the last calendar year Of the duration provided  for in 
Article  19(1) of the Basic Regulation. 

2.  In the case of varieties  to which Article  116(4) 4th indent of the 

Basic Regulation does not apply, the extension referred  to in paragraph 
1 shall be reduced by the longest period in full years during which any 
national property right or rights have been effective in a Member State 
in respect of the same variety prior to the grant of the Community 
plant variety right. 

Article 2 
This Regulation shall enter into  force  on  the day  following  its publication 
in the Official  Journal of the European Communities. 

This Regulation  shall be binding  in its entirety and directly applicable in 

all Member  States. 

ISSN 0254-1475 

COM(96) 95 final 

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