WRITTEN QUESTION P-1266/03 by Caroline Lucas (Verts/ALE) to the Commission. TRIPs, UPOV and Farmers' Rights.
Date: 2003-03-27
Institutions: European Parliament, Provisional data
Subjects: TRIPS, bilateral relations, farmer, intellectual property, international convention, negotiation of an agreement (EU), plant variety right, service, trade agreement (EU)

C 78 E/708

Official Journal of the European Union

EN

27.3.2004

The Commission hopes to conclude the negotiations with the EEA EFTA countries and the Acceding
Countries on the enlargement of the EEA Agreement in the near future. Once the negotiations are
concluded, the draft EEA enlargement instrument will be transmitted to the Parliament. As for the
timetable, it is expected that the EEA enlargement instrument will be ratified in parallel to the Treaty of
Accession to the European Union. As for the involvement of the Parliament it shall give its assent in
accordance with Article 300 (3) second subparagraph of the EC Treaty, since the EEA Agreement belongs
to the category of agreements concluded by the Community in accordance with Article 310 of the Treaty.

(2004/C 78 E/0757)

WRITTEN QUESTION P-1266/03

by Caroline Lucas (Verts/ALE) to the Commission

(27 March 2003)

Subject: TRIPs, UPOV and Farmers’ Rights

The EU in its bilateral trade agreements almost invariably seeks to impose obligations on its partners to
accede to international treaties on intellectual property which go beyond their existing commitments. One
example is the use of what has been termed ‘TRIPs Plus’ to require trading partners to accede to the
International Convention for the Protection of New Varieties of Plants (UPOV 1991) which carries specific
rules on plant variety rights not contained in TRIPs. The EU-Lebanon agreement is the latest example;
although Lebanon is not yet a member of the WTO it is required to accede both to UPOV 1991 and to the
TRIPs Agreement within 5 years.

The Commission in its Concept Paper of September 2002 on the review of TRIPs Article 27.3b and the
TRIPs/CBD relationship notes that Article 27.3b requires effective sui generis protection of plant variety
rights but agrees that, although the UPOV 1991 Convention meets the standard of effectiveness in
Article 27.3(b), other protection models may be equally effective.

In addition, the Concept Paper says that Farmers’ exemptions (i.e. exceptions to plant variety rights or
patents allowing farmers to save, use, exchange or sell seeds of protected varieties or seeds) can, under
certain circumstances, be justified under Article 27.3(b) of the TRIPs Agreement, or under Article 30 of the
TRIPs Agreement. These rights are either not available or are severely restricted under UPOV 1991.

Will the Commission please explain why it pursues a set of objectives in its bilateral trade negotiations
which clearly and effectively prevent the application of the more flexible intellectual property rules in
respect of plant varieties, as provided by the multilateral TRIPs agreement?

Answer given by Mr Lamy on behalf of the Commission

(30 April 2003)

Through its Communication (Concept Paper) of 17 October 2002 (1) the Union was the first developed
country Member of the World Trade Organisation (WTO) to address the review of Article 27.3(b) of the
Trade Related Intellectual Property Rights (TRIPs) Agreement and related issues in a substantial,
constructive and systematic manner.

In particular, the Union acknowledged that the UPOV Convention was not the only possible sui generis
protection model for plant varieties and advocated an interpretation of the TRIPs Agreement that would
allow for farmers’ exemptions. This approach was welcomed by developing country Members, both in the
TRIPs Council and in the Committee on Trade and Environment.

Bilateral trade agreements concluded by the Union do contain a reference to the UPOV Convention, either
through a commitment to adhere to the UPOVC or by a best-endeavours close (which, however, does not
constitute a firm obligation in itself). These commitments are part of a balanced package of mutual
commitments and concessions, which have not been ‘imposed’ but have been freely accepted by the
trading partner.

27.3.2004

EN

Official Journal of the European Union

C 78 E/709

Since 2002, the Union approach has been adjusted to further accommodate development concerns:
in ongoing bilateral negotiations, the Commission is proposing that the trade partner, as an alternative to
the UPOV Convention, could equally implement some other adequate and effective sui generis system of
protection of plant varieties, in compliance with Article 27.3(b) of the TRIPS Agreement.

In the Commission’s assessment the UPOV Convention (in both its 1978 and 1991 versions) offers a
protection regime much more flexible than patent protection and therefore better suited to the specifities
of plant varieties (as a matter of fact, the Convention serves as a model for Community and national
legislation in several Member States). Therefore, certain developing countries, e.g. Mexico, Brazil and
Argentina, have adhered to the UPOV Convention, without having previously taken any such commitment
in a bilateral agreement with the Union.

As regards farmers’ exceptions, the UPOV Convention provides for a ‘farmers’ privilege’, which permits
farmers to use for propagating purposes, on their own holdings, the product of the harvest which they
have obtained by planting, on their own holdings, the protected variety.

Moreover, the Convention states that breeders’ rights do not extend to acts done privately and for non-
in the view of the Commission, cover any act done by
commercial purposes: this exception does,
subsistence farmers (whose activities are, by definition,
‘non-commercial’) with regard to protected
varieties, including the exchange of seed. So, as far as subsistence farmers are concerned, the possibility to
provide for exceptions goes well beyond the ‘farmers’ privilege’.

Also, the Convention in many cases allows for the free breeding of new varieties on the basis of existing
varieties (be it by agro-business or by farmers).

Finally, adherence to the UPOV Convention does not prevent the establishment of additional protection
regimes for traditional farming practices, traditional knowledge or varieties which do not meet the criteria
set out in the UPOV Convention, as well as the protection of farmers’ rights as set out in the International
Treaty on Plant Genetic Resources for Food and Agriculture.

Exemptions beyond those available under the 1991 Act of the UPOV Convention could be conceived and
defended as being allowed under Article 27.3(b) of the TRIPs Agreement. It would, however, be wrong to
state that the UPOV Convention does not provide for a flexible system and for farmers’ exemptions.

As such, the 1991 UPOV Convention does provide for an effective and flexible sui generis system for the
protection of plant varieties though alternative models could be put in place, and would be consistent with
the TRIPs Agreement provided they offer effective protection.

(1)

IP/C/W/383.

(2004/C 78 E/0758)

WRITTEN QUESTION E-1280/03

by María Sornosa Martínez (PSE) to the Commission

(4 April 2003)

Subject: Incorrect transposition into national law of Directive 2002/49/EC

The Spanish Government is in the process of transposing into national
relating to the assessment and management of environmental noise.

law Directive 2002/49/EC (1)

Although the deadline for transposition has been set at July 2004, the preliminary draft law drawn up by
the government has already sparked fierce controversy among sections of the public and ecologists, who
feel that the government’s draft law does not satisfy the expectations of the directive, especially with
reference to the following:

(cid:1) the distribution of responsibilities between the various parallel administrations in the field of
environmental noise is not sufficiently delineated, despite being an obligation under the Directive;