Commission Regulation (EC) No 2605/98 of 3 December 1998 amending Regulation (EC) No 1768/95 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community Plant Variety Rights
Date: 1998-12-03
Institutions: European Commission
Subjects: application of EU law, derogation from EU law, industrial property, plant propagation

L 328/6

EN

Official Journal of the European Communities

4. 12. 98

COMMISSION REGULATION (EC) No 2605/98

of 3 December 1998

amending Regulation (EC) No 1768/95 implementing rules on the agricultural
exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on
Community Plant Variety Rights

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 2100/94 of
27 July 1994 on Community plant variety rights (1) (the
Basic Regulation), as amended by Regulation (EC) No
2506/95 (2), and in particular Article 14(3) thereof,

Whereas Article 14 of the Basic Regulation provides for a
derogation from Community plant variety rights for the
purposes of safeguarding agricultural production (agricul-
tural exemption);

Whereas Commission Regulation (EC) No 1768/95 (3) has
established conditions to give effect to this derogation and
to safeguard the legitimate interests of the breeder and of
the farmer;

Whereas it was not possible at that time to specify the
level of the equitable remuneration to be paid for the use
made of the aforesaid derogation;

Whereas, however, it was stipulated in that Regulation
that the initial level as well as the system for subsequent
adaptations should be specified as soon as possible;

Whereas in the meanwhile agreements between breeders’
and farmers’ organisations have been concluded in several
Member States, which concern, inter alia, the level of the
remuneration;

Whereas it is appropriate to ensure that the agreements
are made operational as Community guidelines in respect
of the level of remuneration, for the respective areas and
the respective species;

Whereas, in areas or for species, to which such agree-
ments do not apply, the remuneration to be paid shall in
principle be 50 % of
the
licensed production of propagating material, modulated
by an appropriate sliding scale, where such scale has been
established in respect of the respective national plant
variety rights;

the amounts charged for

Whereas those levels shall be reviewed by 1 January 2003
at the latest;

(1) OJ L 227, 1. 9. 1994, p. 1.
(2) OJ L 258, 28. 10. 1995, p. 3.
(3) OJ L 173, 25. 7. 1995, p. 14.

Whereas it is appropriate to provide for a reasonable
incentive for a speedy conclusion of further agreements
between breeders’ and farmers’ organisations for areas or
species not yet covered, where they are already under
preparation; whereas a level which is inferior to the one
specified above and only applicable for a limited period of
time may encourage certain organisations to reach final-
isation of such agreements as soon as possible;

Whereas the Administrative Council of the Community
Plant Variety Office has been consulted;

Whereas the measures provided for in this Regulation are
the Standing
in accordance with the opinion of
Committee on Plant Variety Rights,

HAS ADOPTED THIS REGULATION:

Article 1

The following paragraphs 4, 5, 6 and 7 are added to
Article 5 of Regulation (EC) No 1768/95:

established

in the Community

‘4. Where in the case of paragraph 2 the level of
remuneration is the subject of agreements between
organisations of holders and of
farmers, with or
without participation of organisations of processors,
at
which are
Community, national or regional
level respectively,
the agreed levels shall be used as guidelines for the
determination of the remuneration to be paid in the
area and for the species concerned, if these levels and
the conditions thereof have been notified to the
Commission in writing by authorised representatives
of the relevant organisations and if on that basis the
agreed levels and conditions
thereof have been
published in the “Official Gazette” issued by the
Community Plant Variety Office.

5. Where in the case of paragraph 2 an agreement
as referred to in paragraph 4 does not apply, the
remuneration to be paid shall be 50 % of the amounts
charged for the licensed production of propagating
material as specified in paragraph 2.

However, if a Member State has notified the Commis-
sion before 1 January 1999 of the imminent conclu-
sion of an agreement as referred to in paragraph 4
between the relevant organisations established at

4. 12. 98

EN

Official Journal of the European Communities

L 328/7

national or regional level, the remuneration to be paid
in the area and for the species concerned shall be
40 % instead of 50 % as specified above, but only in
respect of the use of the agricultural exemption made
prior to the implementation of such agreement and
not later than 1 April 1999.

6. Where in the case of paragraph 5 the farmer has
made use, in the relevant period, of the agricultural
exemption at a ratio of more than 55 % of the total
material of the relevant variety used for his produc-
tion, the level of the remuneration to be paid in the
area and for the species concerned shall be the one
which would apply in respect of such a variety if it
was protected in the relevant Member State under its
national system of plant variety rights, if a national
system exists which has established such level, and
provided that that level is more than 50 % of the

amounts charged for the licensed production of prop-
agating material as specified in paragraph 2. In the
absence of such level under the national scheme, the
provisions of paragraph 5 shall apply irrespective of
the ratio of use.

7.
By 1 January 2003 at the latest, the provisions of
paragraph 5, first subparagraph, and of paragraph 6
shall be reviewed in the light of experiences gained
under this Regulation and of developments of the
ratio referred to in paragraph 3, with a view to their
possible adaptation, by 1 July 2003, as may be neces-
sary to establish or to stabilise the reasonably balanced
ratio, stipulated in the aforesaid paragraph,
in the
whole or part of the Community.'

Article 2

This Regulation shall enter into force on the 20th 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.

Done at Brussels, 3 December 1998.

For the Commission

Franz FISCHLER

Member of the Commission