OPINION OF THE COMMISSION pursuant to Article 189 b (2) (d) of the EC Treaty, on the European Parliament' s amendments to the Council' s common position regarding the proposal for a EUROPEAN PARLIAMENT AND COUNCIL REGULATION (EC) concerning the creation of a supplementary protection certificate for plant protection products
Date: 1996-05-02
Institutions: European Commission
Subjects: industrial property, marketing, patent, plant health product, product safety

COMMISSION OF THE EUROPEAN  COMMUNITIES 

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Brusseis,02.05  1996 
COM(%)  185fuial 

94/0285(COD) 

OPINION  OF  THE  COMMISSION 
pursuant to  Article  189 b  (2)  (d)  of  the  EC Treaty, 
oil  the European  Parliament's  amendments 
to the Council's  common  position  regarding  the 

proposal  for  a 
EUROPEAN  PARLIAMENT  AND  COUNCIL  REGULATION  (EC) 

concerning the creation of a supplementary  protection 
certificate  for plant protection products 

AMENDING  IHE  PROPOSAL  OF  IHE  COMMISSION 
pursuant  to  Article  189 a (2)  of  the EC  Treaty 

1.  BACKGROUND 

a) 

b) 

c) 

d) 

e) 

f) 

g) 

On  12 December  1994, the  Commission  sent  to  the  Council  a proposal  for  a 
regulation concerning the creation of a supplementary protection certificate  for 
plant protection products (COM (94) 579  final)1. 

On 27 April  1995, the Economic and Social Committee delivered its opinion2. 

On  15  June  1995,  the  Parliament  adopted  in  first  reading  a  favourable 
resolution containing 4 amendments to the proposal of the Commission3. 

On 6 October  1995, the Commission adopted, pursuant to Article  189A (2) of 
the  EC  Treaty,  an  amended  proposal  which  fully  incorporated  these  4 
amendments (COM (95) 456  final)4. 

On 27 November  1995, the Council adopted a common position5. 

On  7  December  1995,  the  Commission  accepted  this  common  position  and 
communicated its opinion to the European Parliament (SEC(95)  1841  final). 

On  12 March  1996, the European  Parliament  voted  in second  reading for  one 
amendment to the common position. 

2.  THE REGULATION'S OBJECTIVE 

The  proposal  has  as  its  objective  the  harmonisation  and  the  prolongation  of  the 
duration  of  protection  for  patents  for  inventions  in  the  plant  protection  products 
sector  (insecticides,  fungicides,  herbicides  and  growth  regulators)  in  the  Union. 
Equally,  it  also  strives  for  the  objective  of  the  industrial  policy  which  favours 
research in the plant protection  product  sector.  These objectives are achieved by the 
creation  of  a  new  form  of  industrial  property,  the  supplementary  protection 
certificate  This will take effect  upon the expiration  of the basic patent  and can last 
up  to  a  maximum  of  5  years 
It  will  operate  so  as  to  provide  a  supplementary 
protection to that which is obtained by a patent 

3.  OPINION  OF  THE  COMMISSION  TOWARDS  THE  AMENDMENT  OF 

THEEP 

The European Parliament  adopted, during its second reading, a single amendment to 
the Council's common  position.  This amendment  seeks to  change into  a  "recital" a 
declaration  that  the  Council  and the  Commission  wanted  to  include  in an  annex  to 

1 

JOn°C  390 oH 1.12.1994, p.21. 

2 

JO n° C 155 of 21.06.1995. p. 14. 

3 

JO n° C  166 of 03.07.1995. p.89. 

4 

JO n° C 335 of  13.12.1995. p. 15 

5 

JO n° C 353 of 30.12.1995, p;36. 

y* 

the minutes of the meeting  of the Council  which  will  adopt  the  legislation  in its  final 
form. 

The  objective  of  the  European  Parliament  (which  is  shared  by  the  Council  and  the 
Commission)  is  to  ensure  a  uniform  application  and  interpretation  of  the  two 
regulations  which  create  supplementary  protection  certificates,  namely  the  present 
regulation  establishing  a  supplementary  protection  certificate  for  plant  protection 
products  and  the  Council's  regulation  N°  1768/92  of  18  June  1995  concerning  the 
creation of a supplementary protection certificates  for medicines. 

There are two advantages  obtained by changing the declaration  in the minutes of the 
Council to a "recital": 

1) 

2) 

greater transparency since the declaration will be made public in this 
manner; 

greater legal security and, if the case arises, the possibility of intervention 
by the Court of justice 

However,  the formulation  of the amendment  as adopted by the  European  Parliament 
could  give  the  impression  that  it  seeks  to  modify  certain  clauses  of  a  regulation  -
regulation N°  1768/92 of the Council  - for which a proposal  for modification has not 
been presented by the Commission. 

Consequently,  in  order  to  meet  the  chosen  objectives  of  the  three  institutions, 
together  with  ensuring  that  there  is  adequate  legal  coherence  between  the  two 
regulations,  the  Commission  accepts  the  spirit  and  the  aim  of  the  amendment 
adopted by the European Parliament but proposes a slightly different  formulation. 

£ 

Amended Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND COUNCIL 

concerning the creation of a supplementary protection 
certificate  for plant protection products 

(presented by the Commission pursuant to Article  189 A, paragraph 2 of the EC Treaty) 

3 

common position of the Council- 

- Modified  Text 

Preamble  16A (new) 

(16A)  whereas  the  present  regulation,  in 
particular  recitals  12.  13  and  14  and 
Articles 3(2). 4. 8(l)(c)  and  17(2). and the 
regulation  of  the  Council  N°  1768/92  of 
18  June  1992  concerning  the  creation  of 
supplementary  protection  certificates  for 
medicinal  products,  in  particular  recital  9 
and Articles  3. 4.  8(1 )(c)  and  17.  must  be 
interpreted and applied in a uniform way; 

ISSN  0254-1475 

COM(96) 185 final 

DOCUMENTS 

EN 

05 

Catalogue number  : CB-CO-96-194-EN-C 

ISBN 92-78-03142-9 

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