Council Regulation (EC) No 873/2004 of 29 April 2004 amending Regulation (EC) No 2100/94 on Community plant variety rights
Date: 2004-04-29
Institutions: Council of the European Union
Subjects: European organisation, crop production, patents licence, plant propagation, protection of plant life

L 162/38

EN

Official Journal of the European Union

30.4.2004

COUNCIL REGULATION (EC) No 873/2004

of 29 April 2004

amending Regulation (EC) No 2100/94 on Community plant variety rights

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 308 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

(7)

(8)

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

Council Regulation (EC) No 2100/94 of 27 July 1994
on Community plant variety rights (2) creates a Com-
munity regime for plant varieties, co-existing with
national regimes, which allows for the grant of industrial
property rights, valid throughout the Community (Com-
munity plant variety rights).

The implementation and application of this regime are
carried out by a Community office with legal person-
ality, known as the Community Plant Variety Office (the
Office).

The term ‘compulsory licence’ should have the same
meaning and content as the current term ‘compulsory
exploitation right’.

Only the Office is entitled to grant a compulsory licence
for a plant variety which is protected by a Community
plant variety right.

The Community's legal framework for the protection of
biotechnological inventions, established in Directive 98/
44/EC of the European Parliament and of the Council of
6 July 1998 on the legal protection of biotechnological
inventions (3) lays down in Article 12 rules for the grant
of non-exclusive compulsory licences where protected
plant varieties,
including Community plant varieties,
incorporate patented inventions, and vice versa.

Article 29 of Regulation (EC) No 2100/94, while
providing in general for the grant of compulsory licences
for Community plant varieties on grounds of public
interest, does not expressly refer to the licences to be
provided in accordance with Article 12 of Directive 98/
44/EC.

(1) Opinion of 13 January 2004 (not yet published in the Official

Journal).

(2) OJ L 227, 1.9.1994, p. 1. Regulation as last amended by Regulation

(EC) No 1650/2003 (OJ L 245, 29.9.2003, p. 28).

(3) OJ L 213, 30.7.1998, p. 13.

Considering the need to ensure transparency and coher-
ence of the system of compulsory cross-licensing it is
appropriate to amend the rules established by Regulation
(EC) No 2100/94, making express reference and setting
out
relating to compulsory
licences provided for in Directive 98/44/EC.

the specific conditions

Considering the national scope of the protection for
biotechnological
inventions according to Directive 98/
44/EC it is necessary to ensure that the national patent
holder be granted a cross-licence for a plant variety right
only in the Member State(s) where he/she can claim a
patent for a biotechnological invention.

(9)

The Treaty provides for no powers, other than those in
Article 308 thereof, for the adoption of this Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

Article 29 of Regulation (EC) No 2100/94 shall be replaced by
the following:

‘Article 29

Compulsory licensing

1.
Compulsory licences shall be granted to one or more
persons by the Office, on application by that person or
those persons, but only on grounds of public interest and
after consulting the Administrative Council referred to in
Article 36.

2.
On application by a Member State, by the Commis-
sion or by an organisation set up at Community level and
registered by the Commission, a compulsory licence may
to a category of persons satisfying
be granted, either
specific requirements, or
to anyone in one or more
Member States or throughout the Community. It may be
granted only on grounds of public interest and with the
approval of the Administrative Council.

30.4.2004

EN

Official Journal of the European Union

L 162/39

The Office shall, when granting the compulsory
3.
licence pursuant to paragraphs 1, 2, 5 or 5a, stipulate the
type of acts covered and specify the reasonable conditions
pertaining thereto as well as the specific requirements
referred to in paragraph 2. The reasonable conditions shall
the interests of any holder of plant
take into account
variety rights who would be affected by the grant of the
compulsory licence. The reasonable conditions may include
a possible time limitation, the payment of an appropriate
royalty as equitable remuneration to the holder and may
impose certain obligations on the holder, the fulfilment of
which are necessary to make use of
the compulsory
licence.

4.
On the expiry of each one-year period after the grant
of the compulsory licence pursuant to paragraphs 1, 2, 5
or 5a, and within the possible time limitation set out in
paragraph 3, any of the parties to proceedings may request
that the decision on the grant of the compulsory licence be
cancelled or amended. The sole grounds for such a request
shall be that the circumstances determining the decision
taken have in the meantime undergone change.

5.
On application, a compulsory licence shall be granted
to the holder in respect of an essentially derived variety if
the criteria set out in paragraph 1 are met. The reasonable
conditions referred to in paragraph 3 shall
include the
payment of an appropriate royalty as equitable remunera-
tion to the holder of the initial variety.

On application, a compulsory licence for the non-
5a.
exclusive use of a protected plant variety pursuant
to
Article 12(2) of Directive 98/44/EC shall be granted to the
holder of a patent for a biotechnological invention, subject

to payment of an appropriate royalty as equitable remu-
neration, provided that
the patent holder demonstrates
that:

(i) he/she has applied unsuccessfully to the holder of the
plant variety right to obtain a contractual licence; and

(ii) the invention constitutes significant technical progress
of considerable economic interest compared with the
protected plant variety.

in order to enable him/her to acquire or exploit
Where,
his/her plant variety right, a holder has been granted a
compulsory licence in accordance with Article 12(1) of
Directive 98/44/EC for the non-exclusive use of a patented
invention, a non-exclusive cross-licence on reasonable
terms to exploit the variety shall be granted, on application,
to the holder of the patent for that invention,

The territorial scope of the licence or cross-licence referred
to in this paragraph shall be limited to the part or parts of
the Community covered by the patent.

6.
The implementing rules pursuant to Article 114 may
specify certain other examples of licences in the public
interest referred to in paragraphs 1, 2 and 5a, and more-
over lay down details for the implementation of paragraphs
1 to 5a.

Compulsory licences may not be granted by Member

7.
States in respect of a Community plant variety right.’

Article 2

This Regulation shall enter
into force on the 20th day
following that of its publication in the Official Journal of the
European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Luxembourg, 29 April 2004.

For the Council

The President

M. McDOWELL