Proposal for a Council Decision approving the accession of the European Community to the International Convention for the Protection of New Varieties of Plants, as revised at Geneva on 19 March 1991
Date: 2004-12-16
Institutions: European Commission
Subjects: accession to an agreement, intellectual property, international convention, plant variety right

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.12.2004 
COM(2004) 798 final 

2004/0275 (CNS) 

Proposal for a 

COUNCIL DECISION 

approving the accession of the European Community to the International Convention 
for the Protection of New Varieties of Plants, as revised at Geneva on 19 March 1991 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

The main activities of the International Union for the Protection of New Varieties of Plants 
(UPOV)  are  concerned  with  promoting  international  harmonisation  and  cooperation  in  the 
introduction  of  plant  variety  protection  legislation.  Harmonisation  is  enhanced,  firstly, 
through specific activities undertaken within UPOV leading to recommendations and model 
agreements  and  forms  and,  secondly,  through  the  fact  that  UPOV  serves  as  a  forum  to 
exchange  views  and  share  experiences.  UPOV  has  established  a  detailed  set  of  general 
principles  for  the  conduct  of  the  examination  of  plant  varieties;  their  use  also  extends  to 
national listing and seed certification. 

The UPOV Convention introduced that intergovernmental organisation having competence in 
respect of matters governed by the Convention and having their own legislation providing for 
the  grant  and  protection  of  breeders’  rights  binding  on  all  its  Member  States,  may  become 
party to the UPOV Convention. As Council Regulation (EC) No 2100/94 of 27 July 1994 on 
Community Plant Variety Rights, as last amended by Council Regulation (EC) No 873/2004 
of  29 April  2004,  has  established  a  Community  system  of  plant  variety  rights,  this  would 
permit the European Community to accede to UPOV. 

The accession of the European Community to the UPOV Convention is necessary in order to 
fully  exercise  the  rights  conferred  by  this  Convention  to  the  parties  thereto,  and  also  to  be 
recognised as a member of the international society bound by the obligations laid down in this 
Convention;  all  citizens  of  the  European  Community  would  enjoy,  as  a  consequence  of 
Community  membership,  the  same  treatment  including  the  right  of  access  to  variety 
protection in other UPOV members as are accorded to nationals of such other members; the 
acceptance of the obligations ensures at the same time the fulfilment of obligations laid down 
in other international agreements, and in particular those of Article 27 (3) of the WTO-Treaty 
on Intellectual Property Rights Systems (TRIPS Agreement). 

Under the  UPOV  Convention  a  member  candidate  shall,  before  depositing  its  instrument  of 
accession, ask the UPOV Council to advise it in respect of the conformity of its laws with the 
provisions  of  the  Convention;  on  1  April  1997  the  European  Community  has  asked  such 
advice  in  respect  of  Council  Regulation  (EC)  No  2100/94  and  its  implementing  acts;  on  29 
April 1997 the UPOV Council adopted a decision embodying a positive advice. 

The Community should be represented at the meetings of the UPOV Council, which consists 
of  the  representatives  of  the  members  of  the  Union,  and  other  bodies  established  by  that 
Council  and  at  any  other  meeting  organised  by  UPOV;  the  Commission  would  ensure  the 
Community Plant Variety Office being associated in this respect. 

It is also important that the Community pays contributions on a voluntary basis, in accordance 
with the UPOV Convention, taking into account the contributions paid by its Member States: 
the  Community  will  pay  five  contribution  units  to  the  UPOV  annual  budget  (for  the  2004 
budgetary period one unit corresponds to 53,641 Swiss Francs). 

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2004/0275 (CNS) 

Proposal for a 

COUNCIL DECISION 

approving the accession of the European Community to the International Convention 
for the Protection of New Varieties of Plants, as revised at Geneva on 19 March 1991 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 37, in conjunction with Article 300(2), second subparagraph and Article 300(3), first 
subparagraph thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The  International  Convention  for  the  Protection  of  New  Varieties  of  Plants 
(hereinafter  referred  to  as  ‘the  UPOV  Convention’)  adopted  in  Geneva  on 
19 March 1991  makes  available  to  breeders  of  new  plant  varieties  an  exclusive 
property right, on the basis of a set of uniform and clearly defined principles. 

The competence of the Community to conclude or accede to international agreements 
or  treaties  does  not  derive  only  from  explicit  conferral  by  the  Treaty  but  may  also 
derive  from  other  provisions  of  the  Treaty  and  from  acts  adopted  pursuant  to  those 
provisions by Community institutions. 

The  subject  matter  of  the  UPOV  Convention  falls  also  within  the  scope  of  existing 
Community regulations in this field. 

It  follows  that  the  approval  of  the  UPOV  Convention  is  a  matter  of  both  the 
Community and its Member States. 

The UPOV Convention should be approved on behalf of the Community with regard 
to matters within its competence. 

The  President  of  the  Council  should  be  authorised  to  deposit  the  instrument  of 
accession of the Community,  

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HAS DECIDED AS FOLLOWS: 

Article 1 

1. 

The revised text of the International Convention for the Protection of New Varieties 
of Plants (hereinafter referred to as ‘the UPOV Convention’), as adopted at Geneva 
on 19 March 1991, is hereby approved on behalf of the Community with regard to 
matters within its competence. 

2. 

The revised text of the UPOV Convention is set out in Annex I. 

Article 2 

1. 

The President of the Council is hereby authorised to designate the person or persons 
empowered to deposit, on behalf of the Community, the instrument of accession with 
the  Secretary-General  of  the  Union  for  the  Protection  of  New  Varieties  of  Plants 
(hereinafter referred to as ‘UPOV’).  

2. 

The declaration set out in Annex II shall be attached to the instrument of accession. 

Article 3 

1. 

2. 

On  all  matters  within  the  sphere  of  competence  of  the  Community  with  regard  to 
plant  variety  protection,  the  Commission  shall  negotiate,  on  behalf  of  the 
Community, in the UPOV Council and other bodies established by that Council, in 
accordance  with  the  applicable  rules  of  the  EC  Treaty,  in  particular  Article  300 
thereof. 

The  Community  will  pay,  on  a  voluntary  basis,  a  contribution  for  each  relevant 
budgetary  period,  with  a  number  of  contribution  units  and  under  conditions,  which 
are specified in the declaration contained in Annex II, and within the limits set up for 
this purpose within the general budget of the Community. 

Done at Brussels,  

For the Council 
The President 

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1991-03-19 

ANNEX I 

ACT OF 1991 

INTERNATIONAL CONVENTION FOR THE PROTECTION 

OF NEW VARIETIES OF PLANTS 

of December 2, 1961 

as Revised at Geneva on November 10, 1972, 
on October 23, 1978, and on March 19, 1991 

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ACT OF 1991 

INTERNATIONAL CONVENTION 

FOR THE PROTECTION OF NEW VARIETIES OF PLANTS 

of December 2, 1961, 

as Revised at Geneva on November 10, 1972, 
on October 23, 1978, and on March 19, 1991 

LIST OF ARTICLES 

Chapter I:  Definitions 

Article 1: 

Definitions 

Chapter II:  General Obligations of the Contracting Parties 

Article 2: 

Basic Obligation of the Contracting Parties 

Article 3: 

Genera and Species to be Protected 

Article 4: 

National Treatment 

Chapter III:  Conditions for the Grant of the Breeder’s Right 

Article 5: 

Conditions of Protection 

Article 6: 

Novelty 

Article 7: 

Distinctness 

Article 8: 

Uniformity 

Article 9: 

Stability 

Chapter IV:  Application for the Grant of the Breeder’s Right 

Article 10:  Filing of Applications 

Article 11:  Right of Priority 

Article 12:  Examination of the Application 

Article 13:  Provisional Protection 

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Chapter V:  The Rights of the Breeder 

Article 14:  Scope of the Breeder’s Right 

Article 15:  Exceptions to the Breeder’s Right 

Article 16:  Exhaustion of the Breeder’s Right 

Article 17:  Restrictions on the Exercise of the Breeder’s Right 

Article 18:  Measures Regulating Commerce 

Article 19:  Duration of the Breeder’s Right 

Chapter VI:  Variety Denomination 

Article 20:  Variety Denomination 

Chapter VII:  Nullity and Cancellation of the Breeder’s Right 

Article 21:  Nullity of the Breeder’s Right 

Article 22:  Cancellation of the Breeder’s Right 

Chapter VIII: 

The Union 

Article 23:  Members 

Article 24:  Legal Status and Seat 

Article 25:  Organs 

Article 26:  The Council 

Article 27:  The Office of the Union 

Article 28:  Languages 

Article 29:  Finances 

Chapter IX:  Implementation of the Convention; Other Agreements 

Article 30: 

Implementation of the Convention 

Article 31:  Relations  between  Contracting  Parties  and  States  Bound  by  Earlier 

Acts 

Article 32:  Special Agreements 

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Chapter X:  Final Provisions 

Article 33:  Signature 

Article 34:  Ratification, Acceptance or Approval; Accession 

Article 35:  Reservations 

Article 36:  Communications  Concerning  Legislation  and  the  Genera  and  Species 

Protected; Information to be Published 

Article 37:  Entry into Force; Closing of Earlier Acts 

Article 38:  Revision of the Convention 

Article 39:  Denunciation 

Article 40:  Preservation of Existing Rights 

Article 41:  Original and Official Texts of the Convention 

Article 42:  Depositary Functions 

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CHAPTER I 

DEFINITIONS 

Article 1 
Definitions 

For the purposes of this Act: 

(i) 

(ii) 

“this Convention” means the present (1991) Act of the International Convention for 
the Protection of New Varieties of Plants;  

“Act  of  1961/1972”  means  the  International  Convention  for  the  Protection  of  New 
Varieties  of  Plants  of  December  2,  1961,  as  amended  by  the  Additional  Act  of 
November 10, 1972;  

(iii) 

“Act of 1978” means the Act of October 23, 1978, of the International Convention 
for the Protection of New Varieties of Plants;  

(iv) 

“breeder” means 

– 

– 

– 

the person who bred, or discovered and developed, a variety, 

the  person  who  is  the  employer  of  the  aforementioned  person  or  who  has 
commissioned  the  latter’s  work,  where  the  laws  of  the  relevant  Contracting 
Party so provide, or 

the successor in title of the first or second aforementioned person, as the case 
may be; 

(v) 

“breeder’s right” means the right of the breeder provided for in this Convention; 

(vi) 

“variety” means a plant grouping within a single botanical taxon of the lowest known 
rank,  which  grouping,  irrespective  of  whether  the  conditions  for  the  grant  of  a 
breeder’s right are fully met, can be 

– 

– 

– 

defined by the expression of the characteristics resulting from a given genotype 
or combination of genotypes, 

distinguished from any other plant grouping by the expression of at least one of 
the said characteristics and 

considered  as  a  unit  with  regard  to  its  suitability  for  being  propagated 
unchanged; 

(vii) 

“Contracting Party” means a State or an intergovernmental organization party to this 
Convention;  

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(viii) 

“territory,” in relation to a Contracting Party, means, where the Contracting Party is a 
State,  the  territory  of  that  State  and,  where  the  Contracting  Party  is  an 
intergovernmental organization, the territory in which the constituting treaty of that 
intergovernmental organization applies; 

(ix) 

“authority” means the authority referred to in Article 30(1)(ii);  

(x) 

“Union” means the Union for the Protection of New Varieties of Plants founded by 
the Act of 1961 and further mentioned in the Act of 1972, the Act of 1978 and in this 
Convention; 

(xi) 

“member of the Union” means a State party to the Act of 1961/1972 or  the Act of 
1978, or a Contracting Party. 

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CHAPTER II 

GENERAL OBLIGATIONS OF THE CONTRACTING PARTIES 

Article 2 
Basic Obligation of the Contracting Parties 

Each Contracting Party shall grant and protect breeders’ rights. 

Article 3 
Genera and Species to be Protected 

1. 

[States already members of the Union] Each Contracting Party which is bound by the 
Act of 1961/1972 or the Act of 1978 shall apply the provisions of this Convention, 

(i) 

at the date on which it becomes bound by this Convention, to all plant genera 
and species to which it applies, on the said date, the provisions of the Act of 
1961/1972 or the Act of 1978 and, 

(ii) 

at the latest by the expiration of a period of five years after the said date, to all 
plant genera and species. 

2. 

[New members of the Union] Each Contracting Party which is not bound by the Act 
of 1961/1972 or the Act of 1978 shall apply the provisions of this Convention, 

(i) 

at the date on which it becomes bound by this Convention, to at least 15 plant 
genera or species and, 

(ii) 

at the latest by the expiration of a period of 10 years from the said date, to all 
plant genera and species. 

Article 4 
National Treatment 

1. 

2. 

[Treatment] Without prejudice to the rights specified in this Convention, nationals of 
a Contracting Party as well as natural persons resident and legal entities having their 
registered offices within the territory of a Contracting Party shall, insofar as the grant 
and  protection  of  breeders’  rights  are  concerned,  enjoy  within  the  territory  of  each 
other  Contracting  Party  the  same  treatment  as  is  accorded  or  may  hereafter  be 
accorded  by  the  laws  of  each  such  other  Contracting  Party  to  its  own  nationals, 
provided  that  the  said  nationals,  natural  persons  or  legal  entities  comply  with  the 
conditions  and  formalities  imposed  on  the  nationals  of  the  said  other  Contracting 
Party. 

[“Nationals”]  For  the  purposes  of  the  preceding  paragraph,  “nationals”  means, 
where  the  Contracting  Party  is  a  State,  the  nationals  of  that  State  and,  where  the 
Contracting  Party  is  an  intergovernmental  organization,  the  nationals  of  the  States 
which are members of that organization. 

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CHAPTER III 

CONDITIONS FOR THE GRANT OF THE BREEDER’S RIGHT 

Article 5 
Conditions of Protection 

1. 

[Criteria to be satisfied] The breeder’s right shall be granted where the variety is 

(i) 

new, 

(ii)  distinct, 

(iii)  uniform and 

(iv)  stable. 

2. 

1. 

2. 

3. 

[Other conditions] The grant of the breeder’s right shall not be subject to any further 
or different conditions, provided that the variety is designated by a denomination in 
accordance  with  the  provisions  of  Article 20,  that  the  applicant  complies  with  the 
formalities provided for by the law of the Contracting Party with whose authority the 
application has been filed and that he pays the required fees. 

Article 6 
Novelty 

[Criteria]  The  variety  shall  be  deemed  to  be  new  if,  at  the  date  of  filing  of  the 
application for a breeder’s right, propagating or harvested material of the variety has 
not  been  sold  or  otherwise  disposed  of  to  others,  by  or  with  the  consent  of  the 
breeder, for purposes of exploitation of the variety 

(i) 

(ii) 

in the territory of the Contracting Party in which the application has been filed 
earlier than one year before that date and 

in a territory other than that of the Contracting Party in which the application 
has been filed earlier than four years or, in the case of trees or of vines, earlier 
than six years before the said date. 

[Varieties of recent creation] Where a Contracting Party applies this Convention to a 
plant  genus  or  species  to  which  it  did  not  previously  apply  this  Convention  or  an 
earlier Act, it may consider a variety of recent creation existing at the date of such 
extension  of  protection  to  satisfy  the  condition  of  novelty  defined  in  paragraph (1) 
even  where  the  sale  or  disposal  to  others  described  in  that  paragraph  took  place 
earlier than the time limits defined in that paragraph. 

[“Territory” in certain cases] For the purposes of paragraph (1), all the Contracting 
Parties which are member States of one and the same intergovernmental organization 
may  act  jointly,  where  the  regulations  of  that  organization  so  require,  to  assimilate 
acts done on the territories of the States members of that organization to acts done on 
their  own  territories  and,  should  they  do  so,  shall  notify  the  Secretary-General 
accordingly. 

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Article 7 
Distinctness 

The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety 
whose existence is a matter of common knowledge at the time of the filing of the application. 
In  particular,  the  filing  of  an  application  for  the  granting  of  a  breeder’s  right  or  for  the 
entering of another variety in an official register of varieties, in any country, shall be deemed 
to render that other variety a matter of common knowledge from the date of the application, 
provided that the application leads to the granting of a breeder’s right or to the entering of the 
said other variety in the official register of varieties, as the case may be. 

Article 8 
Uniformity 

The variety shall be deemed to be uniform if, subject to the variation that  may  be  expected 
from  the  particular  features  of  its  propagation,  it  is  sufficiently  uniform  in  its  relevant 
characteristics. 

Article 9 
Stability 

The variety shall be deemed to be stable if its relevant characteristics remain unchanged after 
repeated  propagation  or,  in  the  case  of  a  particular  cycle  of  propagation,  at  the  end  of  each 
such cycle. 

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1. 

2. 

3. 

1. 

2. 

3. 

CHAPTER IV 

APPLICATION FOR THE GRANT OF THE BREEDER’S RIGHT 

Article 10 
Filing of Applications 

[Place of first application] The breeder may choose the Contracting Party with whose 
authority he wishes to file his first application for a breeder’s right. 

[Time of subsequent applications] The breeder may apply to the authorities of other 
Contracting Parties for the grant of breeders’ rights without waiting for the grant to 
him of a breeder’s right by the authority of the Contracting Party with which the first 
application was filed. 

[Independence of protection] No Contracting Party shall refuse to grant a breeder’s 
right or limit its duration on the ground that protection for the same variety has not 
been  applied  for,  has  been  refused  or  has  expired  in  any  other  State  or 
intergovernmental organization. 

Article 11 
Right of Priority 

[The  right;  its  period]  Any  breeder  who  has  duly  filed  an  application  for  the 
protection of a variety in one of the Contracting Parties (the “first application”) shall, 
for the purpose of filing an application for the grant of a breeder’s right for the same 
variety  with  the  authority  of  any  other  Contracting  Party  (the  “subsequent 
application”), enjoy a right of priority for a period of 12 months. This period shall be 
computed from the date of filing of the first application. The day of filing shall not be 
included in the latter period. 

[Claiming the right] In order to benefit from the right of priority, the breeder shall, in 
the  subsequent  application,  claim  the  priority  of  the  first  application.  The  authority 
with  which  the  subsequent  application  has  been  filed  may  require  the  breeder  to 
furnish,  within  a  period  of  not  less  than  three  months  from  the  filing  date  of  the 
subsequent  application,  a  copy  of  the  documents  which  constitute  the  first 
application, certified to be a true copy by the authority  with  which  that application 
was filed, and samples or other evidence that the variety which is the subject matter 
of both applications is the same. 

[Documents and material] The breeder shall be allowed a period of two years after 
the  expiration  of  the  period  of  priority  or,  where  the  first  application  is  rejected  or 
withdrawn,  an  appropriate  time  after  such  rejection  or  withdrawal,  in  which  to 
furnish,  to  the  authority  of  the  Contracting  Party  with  which  he  has  filed  the 
subsequent application, any necessary information, document or material required for 
the  purpose  of  the  examination  under  Article 12,  as  required  by  the  laws  of  that 
Contracting Party. 

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4. 

[Events occurring during the period] Events occurring within the period provided for 
in paragraph (1), such as the filing of another application or the publication or use of 
the variety that is the subject of the first application, shall not constitute a ground for 
rejecting the subsequent application. Such events shall also not give rise to any third-
party right. 

Article 12 
Examination of the Application 

Any decision to grant a breeder’s right shall require an examination for compliance with the 
conditions under Articles 5 to 9. In the course of the examination, the authority may grow the 
variety or carry out other necessary tests, cause the growing of the variety or the carrying out 
of other necessary tests, or take into account the results of growing tests or other trials which 
have already been carried out. For the purposes of examination, the authority may require the 
breeder to furnish all the necessary information, documents or material. 

Article 13 
Provisional protection 

Each  Contracting  Party  shall  provide  measures  designed  to  safeguard  the  interests  of  the 
breeder during the period between the filing or the publication of the application for the grant 
of  a  breeder’s  right  and the  grant  of  that  right.  Such  measures  shall  have  the  effect  that  the 
holder of a breeder’s right shall at least be entitled to equitable remuneration from any person 
who, during the said period, has carried out acts which, once the right is granted, require the 
breeder’s authorization as provided in Article 14. A Contracting Party may provide that the 
said measures shall only take effect in relation to persons whom the breeder has notified of 
the filing of the application. 

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CHAPTER V 

THE RIGHTS OF THE BREEDER 

Article 14 
Scope of the Breeder’s Right 

1. 

[Acts in respect of the propagating material] 

(a)  Subject to Articles 15 and 16, the following acts in respect of the propagating 

material of the protected variety shall require the authorization of the breeder: 

(i) 

production or reproduction (multiplication), 

(ii) 

conditioning for the purpose of propagation, 

(iii)  offering for sale, 

(iv)  selling or other marketing, 

(v) 

exporting, 

(vi) 

importing, 

(vii)  stocking for any of the purposes mentioned in (i) to (vi), above. 

(b)  The breeder may make his authorization subject to conditions and limitations. 

[Acts  in  respect  of  the  harvested  material]  Subject  to  Articles 15  and 16,  the  acts 
referred  to  in  items  (i)  to  (vii)  of  paragraph  (1)(a)  in  respect  of  harvested  material, 
including entire plants and parts of plants, obtained through the unauthorized use of 
propagating  material  of  the  protected  variety  shall  require  the  authorization  of  the 
breeder,  unless  the  breeder  has  had  reasonable  opportunity  to  exercise  his  right  in 
relation to the said propagating material. 

[Acts  in  respect  of  certain  products]  Each  Contracting  Party  may  provide  that, 
subject  to  Articles 15  and 16,  the  acts  referred  to  in  items (i)  to (vii)  of 
paragraph (1)(a) in respect of products made directly from harvested material of the 
protected  variety  falling  within  the  provisions  of  paragraph (2)  through  the 
unauthorized use of the said harvested material shall require the authorization of the 
breeder,  unless  the  breeder  has  had  reasonable  opportunity  to  exercise  his  right  in 
relation to the said harvested material. 

[Possible  additional  acts]  Each  Contracting  Party  may  provide  that,  subject  to 
Articles 15  and 16,  acts  other  than  those  referred  to  in  items (i)  to  (vii)  of 
paragraph (1)(a) shall also require the authorization of the breeder. 

2. 

3. 

4. 

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5. 

[Essentially derived and certain other varieties] 

(a)  The provisions of paragraphs (1) to (4) shall also apply in relation to 

(i) 

varieties which are essentially derived from the protected variety, where 
the protected variety is not itself an essentially derived variety, 

(ii)  varieties  which  are  not  clearly  distinguishable  in  accordance  with 

Article 7 from the protected variety and 

(iii)  varieties  whose  production  requires  the  repeated  use  of  the  protected 

variety. 

(b)  For  the  purposes  of  subparagraph (a)(i),  a  variety  shall  be  deemed  to  be 

essentially derived from another variety (“the initial variety”) when 

(i) 

it is predominantly derived from the initial variety, or from a variety that 
is itself predominantly derived from the initial variety, while retaining the 
expression of the essential characteristics that result from the genotype or 
combination of genotypes of the initial variety,  

(ii) 

it is clearly distinguishable from the initial variety and 

(iii)  except  for  the  differences  which  result  from  the  act  of  derivation,  it 
conforms  to  the  initial  variety  in  the  expression  of  the  essential 
characteristics that result from the genotype or combination of genotypes 
of the initial variety. 

(c)  Essentially derived varieties may be obtained for example by the selection of a 
natural or induced mutant, or of a somaclonal variant, the selection of a variant 
individual from plants of the initial variety, backcrossing, or transformation by 
genetic engineering. 

Article 15 
Exceptions to the Breeder’s Right 

1. 

[Compulsory exceptions] The breeder’s right shall not extend to 

(i) 

acts done privately and for non-commercial purposes,  

(ii) 

acts done for experimental purposes and 

(iii)  acts  done  for  the  purpose  of  breeding  other  varieties,  and,  except  where  the 
provisions  of  Article 14(5)  apply,  acts  referred  to  in  Article 14(1)  to  (4)  in 
respect of such other varieties.  

2. 

[Optional exception] Notwithstanding Article 14, each Contracting Party may, within 
reasonable  limits  and  subject  to  the  safeguarding  of  the  legitimate  interests  of  the 
breeder,  restrict  the  breeder’s  right  in  relation  to  any  variety  in  order  to  permit 
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 or a variety covered by Article 14(5)(a)(i) or (ii). 

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Article 16 
Exhaustion of the Breeder’s Right 

1. 

[Exhaustion  of  right]  The  breeder’s  right  shall  not  extend  to  acts  concerning  any 
material  of  the  protected  variety,  or  of  a  variety  covered  by  the  provisions  of 
Article 14(5), which has been sold or otherwise marketed by the breeder or with his 
consent in the territory of the Contracting Party concerned, or  any material derived 
from the said material, unless such acts 

(i) 

involve further propagation of the variety in question or 

(ii) 

involve an export of material of the variety, which enables the propagation of 
the variety, into a country which does not protect varieties of the plant genus or 
species to which the variety belongs, except where the exported material is for 
final consumption purposes. 

2. 

[Meaning  of  “material”]  For  the  purposes  of  paragraph (1),  “material”  means,  in 
relation to a variety, 

(i) 

propagating material of any kind,  

(ii)  harvested material, including entire plants and parts of plants, and 

(iii)  any product made directly from the harvested material.  

3. 

1. 

2. 

[“Territory” in certain cases] For the purposes of paragraph (1), all the Contracting 
Parties which are member States of one and the same intergovernmental organization 
may  act  jointly,  where  the  regulations  of  that  organization  so  require,  to  assimilate 
acts done on the territories of the States members of that organization to acts done on 
their  own  territories  and,  should  they  do  so,  shall  notify  the  Secretary-General 
accordingly. 

Article 17 
Restrictions on the Exercise of the Breeder’s Right 

[Public interest] Except where expressly provided in this Convention, no Contracting 
Party  may  restrict  the  free  exercise  of  a  breeder’s  right  for  reasons  other  than  of 
public interest. 

[Equitable remuneration]  When  any  such  restriction  has the effect of authorizing a 
third party to perform any act for which the breeder’s authorization is required, the 
Contracting  Party  concerned  shall  take  all  measures  necessary  to  ensure  that  the 
breeder receives equitable remuneration. 

Article 18 
Measures Regulating Commerce 

The  breeder’s  right  shall  be  independent  of  any  measure  taken  by  a  Contracting  Party  to 
regulate within its territory the production, certification and marketing of material of varieties 
or the importing or exporting of such material. In any case, such measures shall not affect the 
application of the provisions of this Convention. 

EN 

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Article 19 
Duration of the Breeder’s Right 

1. 

2. 

[Period of protection] The breeder’s right shall be granted for a fixed period. 

[Minimum period] The said period shall not be shorter than 20 years from the date of 
the  grant  of  the  breeder’s  right.  For  trees  and  vines,  the  said  period  shall  not  be 
shorter than 25 years from the said date. 

EN 

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CHAPTER VI 

VARIETY DENOMINATION 

Article 20 
Variety Denomination 

1. 

[Designation of varieties by denominations; use of the denomination] 

(a)  The  variety  shall  be  designated  by  a  denomination  which  will  be  its  generic 

designation. 

(b)  Each Contracting Party shall ensure that, subject to paragraph (4), no rights in 
the designation registered as the denomination of the variety shall hamper the 
free  use  of  the  denomination  in  connection  with  the  variety,  even  after  the 
expiration of the breeder’s right. 

[Characteristics  of  the  denomination]  The  denomination  must  enable  the  variety  to 
be identified. It may not consist solely of figures except where this is an established 
practice  for  designating  varieties.  It  must  not  be  liable  to  mislead  or  to  cause 
confusion  concerning  the  characteristics,  value  or  identity  of  the  variety  or  the 
identity  of  the  breeder.  In  particular,  it  must  be  different  from  every  denomination 
which designates, in the territory of any Contracting Party, an existing variety of the 
same plant species or of a closely related species. 

[Registration  of  the  denomination]  The  denomination  of  the  variety  shall  be 
submitted  by  the  breeder  to  the  authority.  If  it  is  found  that  the  denomination  does 
not satisfy the requirements of paragraph (2), the authority shall refuse to register it 
and  shall  require  the  breeder  to  propose  another  denomination  within  a  prescribed 
period. The denomination shall be registered by the authority at the same time as the 
breeder’s right is granted. 

[Prior rights of third persons] Prior rights of third persons shall not be affected. If, 
by reason of a prior right, the use of the denomination of a variety is forbidden to a 
person who, in accordance with the provisions of paragraph (7), is obliged to use it, 
the authority shall require the breeder to submit another denomination for the variety. 

[Same  denomination  in  all  Contracting  Parties]  A  variety  must  be  submitted  to  all 
Contracting Parties under the same denomination. The authority of each Contracting 
Party  shall  register  the  denomination  so  submitted,  unless  it  considers  the 
denomination  unsuitable  within  its  territory.  In  the  latter  case,  it  shall  require  the 
breeder to submit another denomination. 

[Information  among  the  authorities  of  Contracting  Parties]  The  authority  of  a 
Contracting Party shall ensure that the authorities of all the other Contracting Parties 
are  informed  of  matters  concerning  variety  denominations,  in  particular  the 
submission,  registration  and  cancellation  of  denominations.  Any  authority  may 
address its observations, if any, on the registration of a denomination to the authority 
which communicated that denomination. 

2. 

3. 

4. 

5. 

6. 

EN 

20 

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7. 

8. 

[Obligation to use the denomination] Any person who, within the territory of one of 
the Contracting Parties, offers for sale or markets propagating material of  a variety 
protected  within  the  said  territory  shall  be  obliged  to  use  the  denomination  of  that 
variety, even after the expiration of the breeder’s right in that variety, except where, 
in accordance with the provisions of paragraph (4), prior rights prevent such use. 

[Indications  used  in  association  with  denominations]  When  a  variety  is  offered  for 
sale or marketed, it shall be permitted to associate a trademark, trade name or other 
similar indication with a registered variety denomination. If such an indication is so 
associated, the denomination must nevertheless be easily recognizable. 

EN 

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CHAPTER VII 

NULLITY AND CANCELLATION OF THE BREEDER’S RIGHT 

Article 21 
Nullity of the Breeder’s Right 

1. 

[Reasons of nullity] Each Contracting Party shall declare a breeder’s right granted by 
it null and void when it is established  

(i) 

(ii) 

that the conditions laid down in Articles 6 or 7 were not complied with at the 
time of the grant of the breeder’s right,  

that,  where  the  grant  of  the  breeder’s  right  has  been  essentially  based  upon 
information and documents furnished by the breeder, the conditions laid down 
in  Articles  8  or  9  were  not  complied  with  at  the  time  of  the  grant  of  the 
breeder’s right, or 

(iii) 

that the breeder’s right has been granted to a person who is not entitled to it, 
unless it is transferred to the person who is so entitled.  

2. 

[Exclusion  of  other  reasons]  No  breeder’s  right  shall  be  declared  null  and  void  for 
reasons other than those referred to in paragraph (1). 

Article 22 
Cancellation of the Breeder’s Right 

1. 

[Reasons for cancellation] 

(a)  Each  Contracting  Party  may  cancel  a  breeder’s  right  granted  by  it  if  it  is 
established  that  the  conditions  laid  down  in  Articles  8  or  9  are  no  longer 
fulfilled. 

(b)  Furthermore, each Contracting Party may cancel a breeder’s right granted by it 

if, after being requested to do so and within a prescribed period, 

(i) 

the  breeder  does  not  provide  the  authority  with  the  information, 
documents  or  material  deemed  necessary  for  verifying  the  maintenance 
of the variety, 

(ii) 

the breeder fails to pay such fees as may be payable to keep his right in 
force, or 

(iii) 

the  breeder  does  not  propose,  where  the  denomination  of  the  variety  is 
cancelled after the grant of the right, another suitable denomination. 

2. 

[Exclusion of other reasons] No breeder’s right shall be cancelled for reasons other 
than those referred to in paragraph (1). 

EN 

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CHAPTER VIII 

THE UNION 

Article 23 
Members 

The Contracting Parties shall be members of the Union. 

Article 24 
Legal Status and Seat 

[Legal personality] The Union has legal personality. 

[Legal  capacity]  The  Union  enjoys  on  the  territory  of  each  Contracting  Party,  in 
conformity with the laws applicable in the said territory, such legal capacity as may 
be necessary for the fulfillment of the objectives of the Union and for the exercise of 
its functions. 

[Seat] The seat of the Union and its permanent organs are at Geneva. 

[Headquarters agreement] The Union has a headquarters agreement with the Swiss 
Confederation. 

1. 

2. 

3. 

4. 

Article 25 
Organs 

The permanent organs of the Union are the Council and the Office of the Union. 

Article 26 
The Council 

1. 

2. 

3. 

4. 

[Composition] The Council shall consist of the representatives of the members of the 
Union.  Each  member  of  the  Union  shall  appoint  one  representative  to  the  Council 
and one alternate. Representatives or alternates may be accompanied by assistants or 
advisers. 

[Officers] The Council shall elect a President and a first Vice-President from among 
its  members.  It  may  elect  other  Vice-Presidents.  The  first  Vice-President  shall  take 
the place of the President if the latter is unable to officiate. The President shall hold 
office for three years. 

[Sessions]  The  Council  shall  meet  upon  convocation  by  its  President.  An  ordinary 
session of the Council shall be held annually. In addition, the President may convene 
the Council at his discretion; he shall convene it, within a period of three months, if 
one-third of the members of the Union so request. 

[Observers]  States  not  members  of  the  Union  may  be  invited  as  observers  to 
meetings of the Council. Other observers, as well as experts, may also be invited to 
such meetings. 

EN 

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5. 

[Tasks] The tasks of the Council shall be to: 

(i) 

study  appropriate  measures  to  safeguard  the  interests  and  to  encourage  the 
development of the Union;  

(ii) 

establish its rules of procedure; 

(iii)  appoint  the  Secretary-General  and,  if  it  finds  it  necessary,  a  Vice  Secretary-

General and determine the terms of appointment of each; 

(iv)  examine  an  annual  report  on  the  activities  of  the  Union  and  lay  down  the 

program for its future work; 

(v)  give to the Secretary-General all necessary directions for the accomplishment 

of the tasks of the Union; 

(vi)  establish the administrative and financial regulations of the Union; 

(vii)  examine and approve the budget of the Union and fix the contribution of each 

member of the Union; 

(viii)  examine and approve the accounts presented by the Secretary-General; 

(ix) 

fix the date and place of the conferences referred to in Article 38 and take the 
measures necessary for their preparation; and 

(x) 

in general, take all necessary decisions to ensure the efficient functioning of the 
Union.  

6. 

[Votes] 

(a)  Each member of the Union that is a State shall have one vote in the Council. 

(b)  Any  Contracting  Party  that  is  an  intergovernmental  organization  may,  in 
matters within its competence, exercise the rights to vote of its member States 
that  are  members  of  the  Union.  Such  an  intergovernmental  organization  shall 
not  exercise  the  rights  to  vote  of  its  member  States  if  its  member  States 
exercise their right to vote, and vice versa. 

7. 

[Majorities] Any decision of the Council shall require a simple majority of the votes 
cast,  provided  that  any  decision  of  the  Council  under  paragraphs  (5)(ii),  (vi)  and 
(vii), and under Articles 28(3),  29(5)(b) and 38(1) shall require three-fourths of the 
votes cast. Abstentions shall not be considered as votes. 

EN 

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Article 27 
The Office of the Union 

[Tasks  and  direction  of  the  Office]  The  Office  of  the  Union  shall  carry  out  all  the 
duties and tasks entrusted to it by the Council. It shall be under the direction of the 
Secretary-General. 

[Duties of the Secretary-General] The Secretary-General shall be responsible to the 
Council;  he  shall  be  responsible  for  carrying  out  the  decisions  of  the  Council.  He 
shall  submit  the  budget  of  the  Union  for  the  approval  of  the  Council  and  shall  be 
responsible  for  its  implementation.  He  shall  make  reports  to  the  Council  on  his 
administration and the activities and financial position of the Union. 

[Staff] Subject to the provisions  of Article 26(5)(iii), the  conditions of appointment 
and employment of the staff necessary for the efficient performance of the tasks of 
the Office of the Union shall be fixed in the administrative and financial regulations. 

Article 28 
Languages 

[Languages of the Office] The English, French, German and Spanish languages shall 
be used by the Office of the Union in carrying out its duties. 

[Languages in certain meetings] Meetings of the Council and of revision conferences 
shall be held in the four languages. 

[Further languages] The Council may decide that further languages shall be used. 

1. 

2. 

3. 

1. 

2. 

3. 

Article 29 
Finances 

1. 

[Income] The expenses of the Union shall be met from  

(i) 

the annual contributions of the States members of the Union, 

(ii)  payments received for services rendered, 

(iii)  miscellaneous receipts. 

2. 

[Contributions: units] 

(a)  he share of each State member of the Union in the total amount of the annual 
contributions  shall  be  determined  by  reference  to  the  total  expenditure  to  be 
met  from  the  contributions  of  the  States  members  of  the  Union  and  to  the 
number  of  contribution  units  applicable  to  it  under  paragraph  (3).  The  said 
share shall be computed according to paragraph (4). 

(b)  The  number  of  contribution  units  shall  be  expressed  in  whole  numbers  or 
fractions thereof, provided that no fraction shall be smaller than one-fifth. 

EN 

25 

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3. 

[Contributions: share of each member] 

(a)  he number of contribution units applicable to any member of the Union which 
is  party  to  the  Act  of  1961/1972  or  the  Act  of  1978  on  the  date  on  which  it 
becomes bound by this Convention shall be the same as the number applicable 
to it immediately before the said date. 

(b)  ny other State member of the Union shall, on joining the Union, indicate, in a 
declaration  addressed  to  the  Secretary-General,  the  number  of  contribution 
units applicable to it. 

(c)  Any  State  member  of  the  Union  may,  at  any  time,  indicate,  in  a  declaration 
addressed  to  the  Secretary-General,  a  number  of  contribution  units  different 
from  the  number  applicable  to  it  under  subparagraph  (a)  or  (b).  Such 
declaration,  if  made  during  the  first  six  months  of  a  calendar  year,  shall  take 
effect  from  the  beginning  of  the  subsequent  calendar  year;  otherwise,  it  shall 
take effect from the beginning of the second calendar year which follows the 
year in which the declaration was made. 

4. 

[Contributions: computation of shares] 

(a)  For each budgetary period, the amount corresponding to one contribution unit 
shall be obtained by dividing the total amount of the expenditure to be met in 
that period from the contributions of the States members of the Union by the 
total number of units applicable to those States members of the Union. 

(b)  he  amount  of  the  contribution  of  each  State  member  of  the  Union  shall  be 
obtained by multiplying the amount corresponding to one contribution unit by 
the number of contribution units applicable to that State member of the Union. 

5. 

[Arrears in contributions] 

(a)  State  member  of  the  Union  which  is  in  arrears  in  the  payment  of  its 
contributions may not, subject to subparagraph (b), exercise its right to vote in 
the  Council  if  the  amount  of  its  arrears  equals  or  exceeds  the  amount  of  the 
contribution due from it for the preceding full year. The suspension of the right 
to  vote  shall  not  relieve  such  State  member  of  the  Union  of  its  obligations 
under this Convention and shall not deprive it of any other rights thereunder. 

(b)  The  Council  may  allow  the  said  State  member  of  the  Union  to  continue  to 
exercise its right to vote if, and as long as, the Council is satisfied that the delay 
in payment is due to exceptional and unavoidable circumstances. 

6. 

[Auditing of the accounts] The auditing of the accounts of the Union shall be effected 
by  a  State  member  of  the  Union  as  provided  in  the  administrative  and  financial 
regulations. Such State member of the Union shall be designated, with its agreement, 
by the Council. 

EN 

26 

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7. 

[Contributions of intergovernmental organizations] Any Contracting Party which is 
an  intergovernmental  organization  shall  not  be  obliged  to  pay  contributions.  If, 
nevertheless, it chooses to pay contributions, the provisions of paragraphs (1) to (4) 
shall be applied accordingly. 

EN 

27 

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IMPLEMENTATION OF THE CONVENTION; OTHER AGREEMENTS 

CHAPTER IX 

Article 30 
Implementation of the Convention 

1. 

[Measures  of  implementation]  Each  Contracting  Party  shall  adopt  all  measures 
necessary for the implementation of this Convention; in particular, it shall: 

(i) 

provide  for  appropriate  legal  remedies  for  the  effective  enforcement  of 
breeders’ rights;  

(ii)  maintain  an  authority  entrusted  with  the  task  of  granting  breeders’  rights  or 

entrust the said task to an authority maintained by another Contracting Party;  

(iii)  ensure  that  the  public  is  informed  through  the  regular  publication  of 

information concerning 

– 

– 

applications for and grants of breeders’ rights, and 

proposed and approved denominations. 

2. 

1. 

2. 

[Conformity  of  laws]  It  shall  be  understood  that,  on  depositing  its  instrument  of 
ratification,  acceptance,  approval  or accession,  as  the  case  may  be,  each  State  or 
intergovernmental organization must be in a position, under its laws, to give effect to 
the provisions of this Convention. 

Article 31 
Relations Between Contracting Parties and States Bound by Earlier Acts 

[Relations between States bound by this Convention] Between States members of the 
Union  which  are  bound  both  by  this  Convention  and  any  earlier  Act  of  the 
Convention, only this Convention shall apply. 

[Possible relations with States not bound by this Convention] Any State member of 
the Union not bound by this Convention may declare, in a notification addressed to 
the  Secretary-General,  that,  in  its  relations  with  each  member  of  the  Union  bound 
only by this Convention, it will apply the latest Act by which it is bound. As from the 
expiration of one month after the date of such notification and until the State member 
of  the  Union  making  the  declaration  becomes  bound  by  this  Convention,  the  said 
member of the Union shall apply the latest Act by which it is bound in its relations 
with each of the members of the Union bound only by this Convention, whereas the 
latter shall apply this Convention in respect of the former. 

Article 32 
Special Agreements 

Members of the Union reserve the right to conclude among themselves special agreements for 
the protection of varieties, insofar as such agreements do not contravene the provisions of this 
Convention. 

EN 

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CHAPTER X 

FINAL PROVISIONS 

Article 33 
Signature 

This Convention shall be open for signature by any State which is a member of the Union at 
the date of its adoption. It shall remain open for signature until March 31, 1992. 

Article 34 
Ratification, Acceptance or Approval; Accession 

1. 

[States and certain intergovernmental organizations] 

(a)  Any State may, as provided in this Article, become party to this Convention. 

(b)  Any intergovernmental organization may, as provided in this Article, become 

party to this Convention if it 

(i) 

has competence in respect of matters governed by this Convention, 

(ii)  has its own legislation providing for the grant and protection of breeders’ 

rights binding on all its member States and 

(iii)  has  been  duly  authorized,  in  accordance  with  its  internal  procedures,  to 

accede to this Convention. 

2. 

3. 

[Instrument of adherence] Any State which has signed this Convention shall become 
party  to  this  Convention  by  depositing  an  instrument  of  ratification,  acceptance  or 
approval  of  this  Convention.  Any  State  which  has  not  signed  this  Convention  and 
any  intergovernmental  organization  shall  become  party  to  this  Convention  by 
depositing an instrument of accession to this Convention. Instruments of ratification, 
acceptance, approval or accession shall be deposited with the Secretary-General. 

[Advice  of  the  Council]  Any  State  which  is  not  a  member  of  the  Union  and  any 
intergovernmental  organization  shall,  before  depositing  its  instrument  of  accession, 
ask  the  Council  to  advise  it  in  respect  of  the  conformity  of  its  laws  with  the 
provisions of this Convention. If the decision embodying the advice is positive, the 
instrument of accession may be deposited. 

EN 

29 

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Article 35 
Reservations 

1. 

2. 

[Principle] Subject to paragraph (2), no reservations to this Convention are permitted. 

[Possible exception] 

(a)  withstanding  the  provisions  of  Article 3(1),  any  State  which,  at  the  time  of 
becoming party to this Convention, is a party to the Act of 1978 and which, as 
far as varieties reproduced asexually are concerned, provides for protection by 
an  industrial  property  title  other  than  a  breeder’s  right  shall  have  the  right  to 
continue to do so without applying this Convention to those varieties. 

(b)  ny  State  making  use  of  the  said  right  shall,  at  the  time  of  depositing  its 
instrument  of  ratification,  acceptance,  approval  or  accession,  as  the  case  may 
be, notify the Secretary-General accordingly. The same State may, at any time, 
withdraw the said notification. 

Article 36 
Communications Concerning Legislation and the Genera and Species Protected; 
Information to be Published 

1. 

[Initial  notification]  When  depositing  its  instrument  of  ratification,  acceptance  or 
approval  of  or  accession  to  this  Convention,  as  the  case  may  be,  any  State  or 
intergovernmental organization shall notify the Secretary-General of 

(i) 

its legislation governing breeder’s rights and 

(ii) 

the  list  of  plant  genera  and  species  to  which,  on  the  date  on  which  it  will 
become  bound  by  this  Convention,  it  will  apply  the  provisions  of  this 
Convention. 

2. 

[Notification of changes] Each Contracting Party shall promptly notify the Secretary-
General of 

(i) 

any changes in its legislation governing breeders’ rights and 

(ii) 

any extension of the application of this Convention to additional plant genera 
and species.  

3. 

[Publication  of  the  information]  The  Secretary-General  shall,  on  the  basis  of 
communications  received  from  each  Contracting  Party  concerned,  publish 
information on 

(i) 

the  legislation  governing  breeders’  rights  and  any  changes  in  that  legislation, 
and 

(ii) 

the  list  of  plant  genera  and  species  referred  to  in  paragraph  (1)(ii)  and  any 
extension referred to in paragraph (2)(ii). 

EN 

30 

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1. 

2. 

3. 

1. 

2. 

1. 

2. 

3. 

4. 

Article 37 
Entry into Force; Closing of Earlier Acts 

[Initial entry into force] This Convention shall enter into force one month after five 
States  have  deposited  their  instruments  of  ratification,  acceptance,  approval  or 
accession,  as  the  case  may  be,  provided  that  at  least  three  of  the  said  instruments 
have been deposited by States party to the Act of 1961/1972 or the Act of 1978. 

[Subsequent  entry  into  force]  Any  State  not  covered  by  paragraph  (1)  or  any 
intergovernmental  organization  shall  become  bound  by  this  Convention  one  month 
after  the  date  on  which  it  has  deposited  its  instrument  of  ratification,  acceptance, 
approval or accession, as the case may be. 

[Closing  of  the  1978  Act]  No  instrument  of  accession  to  the  Act  of 1978  may  be 
deposited  after  the  entry  into  force  of  this  Convention  according  to  paragraph (1), 
except that any State that, in conformity with the established practice of the General 
Assembly  of  the  United Nations,  is  regarded  as  a  developing  country  may  deposit 
such  an  instrument  until  December 31,  1995,  and  that  any  other  State  may  deposit 
such  an  instrument  until  December 31,  1993,  even  if  this  Convention  enters  into 
force before that date. 

Article 38 
Revision of the Convention 

[Conference] This Convention may be revised by a conference of the members of the 
Union. The convocation of such conference shall be decided by the Council. 

[Quorum and majority] The proceedings of a conference shall be effective only if at 
least  half  of  the  States  members  of  the  Union  are  represented  at  it.  A  majority  of 
three-quarters  of  the  States  members  of  the  Union  present  and  voting  at  the 
conference shall be required for the adoption of any revision. 

Article 39 
Denunciation 

[Notifications] Any Contracting Party may denounce this Convention by notification 
addressed to the Secretary-General. The Secretary-General shall promptly notify all 
members of the Union of the receipt of that notification. 

[Earlier  Acts]  Notification  of  the  denunciation  of  this  Convention  shall  be  deemed 
also  to  constitute  notification  of  the  denunciation  of  any  earlier  Act  by  which  the 
Contracting Party denouncing this Convention is bound. 

[Effective  date]  The  denunciation  shall  take  effect  at  the  end  of  the  calendar  year 
following the year in which the notification was received by the Secretary-General. 

[Acquired rights] The denunciation shall not affect any rights acquired in a variety by 
reason  of  this  Convention  or  any  earlier  Act  prior  to  the  date  on  which  the 
denunciation becomes effective. 

EN 

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Article 40 
Preservation of Existing Rights 

This Convention shall not limit existing breeders’ rights under the laws of Contracting Parties 
or  by  reason  of  any  earlier  Act  or  any  agreement  other  than  this  Convention  concluded 
between members of the Union. 

Article 41 
Original and Official Texts of the Convention 

[Original] This Convention shall be signed in a single original in the English, French 
and German languages, the French text prevailing in case of any discrepancy among 
the various texts. The original shall be deposited with the Secretary-General. 

[Official  texts]  The  Secretary-General  shall,  after  consultation  with  the  interested 
Governments, establish official texts of this Convention in the Arabic, Dutch, Italian, 
Japanese  and  Spanish  languages  and  such  other  languages  as  the  Council  may 
designate. 

Article 42 
Depositary Functions 

[Transmittal of copies] The Secretary-General shall transmit certified copies of this 
Convention to all States and intergovernmental organizations which were represented 
in  the  Diplomatic  Conference  that  adopted  this  Convention  and,  on  request,  to  any 
other State or intergovernmental organization. 

[Registration]  The  Secretary-General  shall  register  this  Convention  with  the 
Secretariat of the United Nations. 

1. 

2. 

1. 

2. 

EN 

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Resolution on Article 14(5) 

The  Diplomatic  Conference  for  the  Revision  of  the  International  Convention  for  the 
Protection of New Varieties of Plants held from March 4 to 19, 1991, requests the Secretary-
General  of  UPOV  to  start  work  immediately  after  the  Conference  on  the  establishment  of 
draft  standard  guidelines,  for  adoption  by  the  Council  of  UPOV,  on  essentially  derived 
varieties. 

Recommendation Relating to Article 15(2) 

The Diplomatic Conference recommends that the provisions laid down in Article 15(2) of the 
International Convention for the Protection of New Varieties of Plants of December 2, 1961, 
as Revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991, 
should  not  be  read  so  as  to  be  intended  to  open  the  possibility  of  extending  the  practice 
commonly called “farmer’s privilege” to sectors of agricultural or horticultural production in 
which  such  a  privilege  is  not  a  common  practice  on  the  territory  of  the  Contracting  Party 
concerned. 

Common Statement Relating to Article 34 

The Diplomatic Conference noted and accepted a declaration by the Delegation of Denmark 
and  a  declaration  by  the  Delegation  of  the  Netherlands  according  to  which  the  Convention 
adopted by the Diplomatic Conference will not, upon its ratification, acceptance, approval or 
accession  by  Denmark  or  the  Netherlands,  be  automatically  applicable,  in  the  case  of 
Denmark, in  Greenland and the Faroe Islands and, in the case of the  Netherlands,  in  Aruba 
and the Netherlands Antilles. The said Convention will only apply in the said territories if and 
when  Denmark  or  the  Netherlands,  as  the  case  may  be,  expressly  so  notifies  the  Secretary-
General. 

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ANNEX II 

Declaration of the European Community 

The following declaration shall be attached to the instrument of accession deposited with the 
Secretary-General of UPOV: 

“With  reference  to  Article  29  (7)  of  the  UPOV  Convention  the  Community  will  pay,  on  a 
voluntary  basis,  five  contribution  units  to  the  UPOV  budget  in  accordance  with 
Article 29 (3) (b), with effect from the budgetary period 2005”. 

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LEGISLATIVE FINANCIAL STATEMENT 

Policy area(s): Health and consumer protection 

Activit(y/ies): Food Safety, Animal Health, Animal Welfare and Plant Health 

TITLE  OF  ACTION:  ACCESSION  OF  THE  EUROPEAN  COMMUNITY  TO  THE  INTERNATIONAL 
CONVENTION  FOR  THE  PROTECTION  OF  NEW  VARIETIES  OF  PLANTS,  ADOPTED  AT 
GENEVA ON 19 MARCH 1991 

1. 

BUDGET LINE(S) + HEADING(S) 

CHAPTER 17  04 — FOOD  SAFETY,  ANIMAL  HEALTH,  ANIMAL  WELFARE  AND 

PLANT HEALTH  

ARTICLE 17  04  09 — INTERNATIONAL  AFFAIRS  IN  THE  FIELD  OF  FOOD  SAFETY,  ANIMAL  HEALTH, 

ANIMAL WELFARE AND PLANT HEALTH 

2. 

OVERALL FIGURES  

2.1. 

Total allocation for action (Part B): 1.032 € million for commitment 

2.2. 

Period of application: 

2005 - 2010 

2.3. 

Overall multiannual estimate of expenditure: 

(a) 

Schedule  of  commitment  appropriations/payment  appropriations 
intervention) (see point 6.1.1) 

(financial 

€ million (to three decimal places) 

n + 1 

n + 2 

n + 3 

n + 4 

Year 
(2005) 

Commitments 

0.172 

0.172 0.172 

0.172 

0.172 

n+5 
and 
subs. 
Years 
0.172 

Total 

1.032 

Payments 

0.172 

0.172  0.172 

0.172 

0.172 

0.172 

1.032 

(b) 

Technical and administrative assistance and support expenditure(see point 6.1.2) 

Commitments 

Payments 

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Subtotal a+b 

Commitments 

0.172 

0.172 

0.172 

0.172 

0.172 

0.172 

1.032 

Payments 

0.172 

0.172 

0.172 

0.172 

0.172 

0.172 

1.032 

(c) 

Overall  financial  impact  of  human  resources  and  other  administrative  expenditure  
(see points 7.2 and 7.3) 

Commitments/ 
payments 

TOTAL a+b+c 

Commitments 

Payments 

2.4. 

Compatibility with financial programming and financial perspective 

X 

Proposal is compatible with existing financial programming. 

Proposal  will  entail  reprogramming  of  the  relevant  heading  in  the  financial 
perspective. 

Proposal  may  require  application  of  the  provisions  of  the  Interinstitutional 
Agreement. 

2.5. 

Financial impact on revenue: 

X 

Proposal  has  no  financial  implications  (involves  technical  aspects  regarding 
implementation of a measure) 

OR 

Proposal has financial impact – the effect on revenue is as follows: 

(NB All details and observations relating to the method of calculating the effect on 
revenue should be shown in a separate annex.) 

Budget line 

Revenue 

(€ million to one decimal place) 

Prior to
action 
[Year 
n-1] 

[Yea
r n] 

Situation following action 

[n+1] [n+2] [n+3

[n+4]  [n+5] 

] 

a) Revenue in absolute terms 

b) Change in revenue 

 ∆ 

(Please specify each budget line involved, adding the appropriate number of rows 
to the table if there is an effect on more than one budget line.) 

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3. 

BUDGET CHARACTERISTICS 

Type of expenditure 

New 

EFTA 
contribution 

Contributions 
form applicant 
countries 

Heading in 
financial 
perspective 

DO 

CND 

YES 

NO 

NO 

4 

4. 

LEGAL BASIS  

Art. 37 in conjunction with Art. 300 of the EC Treaty 

5. 

DESCRIPTION AND GROUNDS 

5.1. 

Need for Community intervention 1 

5.1.1.  Objectives pursued 

The main activities of the International Union for the Protection of New Varieties of Plants 
(UPOV)  are  concerned  with  promoting  international  harmonisation  and  cooperation  in  the 
introduction  of  plant  variety  protection  legislation.  Harmonisation  is  enhanced,  firstly, 
through specific activities undertaken within UPOV leading to recommendations and model 
agreements  and  forms  and,  secondly,  through  the  fact  that  UPOV  serves  as  a  forum  to 
exchange  views  and  share  experiences.  UPOV  has  established  a  detailed  set  of  general 
principles  for  the  conduct  of  the  examination  of  plant  varieties;  their  use  also  extends  to 
national listing and seed certification. The Council of UPOV consists of the representatives of 
the members of the Union. Certain intergovernmental organisations, such as the Community, 
may become members.  

Council Regulation (EC) No 2100/94 of 27 July 1994 on Community Plant Variety Rights, as 
last amended by Council Regulation (EC)  No 873/2004  of 29  April 2004, has  established a 
Community  system  of  plant  variety  rights.  The  Community  Plant  Variety  Office  (CPVO) 
implements and applies the system for the protection of plant variety rights on a Community 
level. The CPVO is a Community institution that has been operating since 27 April 1995. Any 
individual  plant  breeder  or  breeding  company  whose  domicile  or  headquarters  is  located  in 
the European Union can apply. 

Through  improved  arrangements  on  an  international  level  the  Community  and  its  Member 
States  would  be  able  to  further  minimise  the  cost  of  operating  their  protection  systems. 
Obtaining protection in several countries by individual plant breeders and breeding companies 
throughout the Union at relatively low cost depends on suitable international agreements. The 
direct  involvement  of  the  Community  is  widely  considered  as  an  important  step  in  this 
direction. 

As the 1991 Act of the UPOV Convention provides for the possibility of accession to UPOV 
by intergovernmental organisations, the Community should be represented at the meetings of 
the  UPOV  Council  and  other  bodies  established  by  that  Council  and  at  any  other  meeting 
organised  by  UPOV;  the  Commission  would  ensure  the  Community  Plant  Variety  Office 

1 

For further information, see separate explanatory note. 

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being associated in this respect. For political reasons it is also important that the Community 
pays  contributions  on  a  voluntary  basis,  in  accordance  with  Article  29  (7)  of  the  UPOV 
Convention, taking into account the contributions paid by its Member States. 

5.1.2.  Measures taken in connection with ex ante evaluation  

Article  34  (1)  (b)  of  the  UPOV  Convention  introduced  that  intergovernmental  organisation 
having  competence  in  respect  of  matters  governed  by  the  Convention  and  having  their  own 
legislation providing for the grant and protection of breeders’ rights binding on all its Member 
States,  may  become  party  to  the  UPOV  Convention.  This  would  permit  the  European 
Community to accede to UPOV. 

Under Article 34 (3) of the UPOV Convention a member candidate shall, before depositing its 
instrument of accession, ask the UPOV Council to advise it in respect of the conformity of its 
laws  with  the  provisions  of  the  Convention;  on  1  April  1997  the  European  Community  has 
asked  such  advice  in  respect  of  Council  Regulation  (EC)  No  2100/94  and  its  implementing 
acts; on 29 April 1997 the UPOV Council adopted a decision embodying a positive advice. 

The accession of the European Community to the UPOV Convention is necessary in order to 
fully  exercise  the  rights  conferred  by  this  Convention  to  the  parties  thereto,  and  also  to  be 
recognised as a member of the international society bound by the obligations laid down in this 
Convention;  all  citizens  of  the  European  Community  would  enjoy,  as  a  consequence  of 
Community  membership,  the  same  treatment  including  the  right  of  access  to  variety 
protection in other UPOV members as are accorded to nationals of such other members; the 
acceptance of the obligations ensures at the same time the fulfilment of obligations laid down 
in other international agreements, and in particular those of Article 27 (3) of the WTO-Treaty 
on Intellectual Property Rights Systems (TRIPS Agreement). 

5.1.3.  Measures taken following ex post evaluation 

Not applicable 

5.2. 

Action envisaged and budget intervention arrangements 

The  President  of  the  Council  will  deposit  the  instrument  of  accession  with  the  Secretary-
General of UPOV. 

The Community will be represented at the meetings of the UPOV Council and other bodies 
established  by  that  Council  and  at  any  other  meeting  organised  by  UPOV.  The  Community 
Plant Variety Office will be associated in this respect. 

The Community will pay, on a voluntary basis, five contribution units  to  the UPOV  annual 
budget (for the 2004 budgetary period one unit corresponds to 53,641 Swiss Francs).  

5.3.  Methods of implementation 

For  each  budgetary  period,  UPOV  calculates  the  amount  corresponding  to  one  unit  its 
members contribute to the budget. The amount of the contribution of each member is obtained 
by  multiplying  the  amount  corresponding  to  one  contribution  unit  by  the  number  of 
contribution  units  applicable  to  that  member.  Although  intergovernmental  organisations  are 
not obliged to pay contributions to the organisation the Community will pay, on a voluntary 

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basis, five contribution units to the UPOV budget, corresponding to the amount provided by 
the largest EU Member States (see list).  

EU Member States’ contributions to the 2004 budget of UPOV (53,641 CHF/unit): 

Country  Units 
1.50 

Austria 

Fee 
51,563.35 

EUR 

Belgium 

1.50 

EUR 

51,563.35  

Czech Republic 

0.50 

EUR 

17,187.785 

Denmark 

1.50 

EUR 

51,563.35  

Estonia  

0.20 

EUR 

6,875.114 

Finland 

1.00 

EUR 

34,375.57  

France 

5.00 

EUR 

171,877.85  

Germany 

5.00 

EUR 

171,877.85  

Hungary 

0.50 

EUR 

17,187.785 

Ireland 

1.00 

EUR 

34,375.57  

Italy 

2.00 

EUR 

68,751.14  

Latvia 

0.20 

EUR 

6,875.114 

Lithuania 

0.20 

EUR 

6,875.114 

Netherlands 

3.00 

EUR 

103,126.71  

Poland 

0.50 

EUR 

17,187.785 

Portugal 

0.50 

EUR 

17,187.785  

Slovakia 

0.50 

EUR 

17,187.785 

Slovenia 

0.20 

EUR 

6,875.114 

Spain 

2.00 

EUR 

68,751.14  

Sweden 

1.50 

EUR 

51,563.35  

UK 

2.00 

EUR 

68,751.14 

EU members total  30.30 

EUR  1,041,579.771 

Planned Community 
contribution 

5.00 

(EUR 

171,877.85) 

Based  on  the  situation  UPOV  members  contribute  to  the  budget  in  2004,  five  units  would 
correspond to 171,877. A decision on adjustment for the budget period 2005 will be taken in 
autumn 2004. 

6. 

FINANCIAL IMPACT 

6.1. 

Total financial impact on Part B - (over the entire programming period) 

(The method of calculating the total amounts set out in the table below must be explained by 
the breakdown in Table 6.2.) 

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6.1.1.  Financial intervention 

Commitments (in € million to three decimal places) 

Breakdown 

[Year 
n] 

[n+1] 

[n+2] 

[n+3] 

[n+4] 

0.172 

0.172 

0.172 

0.172 

0.172 

Action 1 

Action 2 

etc. 

[n+5 
and 
subs. 
Years] 
0.172 

Total 

1.032 

TOTAL  0.172 

0.172 

0.172 

0.172 

0.172 

0.172 

1.032 

6.1.2.  Technical  and  administrative  assistance,  support  expenditure  and  IT  expenditure 

(commitment appropriations) 

[Year 
n] 

[n+1] 

[n+2] 

[n+3] 

[n+4] 

Total 

[n+5 
and 
subs. 
years] 

1) 
administrative assistance 

Technical 

and 

Technical 

a) 
offices 

assistance 

b)  Other 
administrative assistance: 

technical 

and 

- intra muros: 

- extra muros: 

of  which  for  construction 
and 
of 
maintenance 
computerised  management 
systems 

Subtotal 1 

2) Support expenditure 

a) Studies 

b) Meetings of experts 

c) Information and 
publications 

Subtotal 2 

TOTAL 

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6.2. 

Calculation  of  costs  by  measure  envisaged  in  Part  B  (over  the  entire 
programming period)2 

(Where  there  is  more  than  one  action,  give  sufficient  detail  of  the  specific  measures  to  be 
taken for each one to allow the volume and costs of the outputs to be estimated.) 

Commitments (in € million to three decimal places) 

Breakdown  

Type  
of outputs 
(projects, files ) 

Number of 
outputs 

Average unit 
cost 

(total for years 
1…n)  

Total cost 

(total for years 
1…n)  

1 

2 

3 

4=(2X3) 

Action 1 

- Measure 1 

- Measure 2  

Action 2 

- Measure 1 

- Measure 2 

- Measure 3 

etc. 

TOTAL COST 

Contribution 
to the UPOV 
budget  

1 

0.172 

1.032 

7. 

IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE  

7.1. 

Impact on human resources 

Staff to be assigned to management of the 
action using existing and/or additional 
resources 

Number of 
permanent posts 

Number of 
temporary posts 

Total 

Description of tasks deriving from the 
action 

If necessary, a fuller description of the 
tasks may be annexed. 

Types of post 

Officials 
temporary staff 

or 

A 

B 

C 

Other human resources 

Total 

2 

For further information, see separate explanatory note. 

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7.2. 

Overall financial impact of human resources 

Type of human resources 

Amount (€) 

Method of calculation *  

Officials 

Temporary staff 

Other human resources 

(specify budget line) 

Total 

The amounts are total expenditure for twelve months. 

7.3. 

Other administrative expenditure deriving from the action 

Amount € 

Method of calculation 

2,500 

Two missions to UPOV 

Budget line 

(number and heading) 

Overall allocation (Title A7) 

A0701 – Missions 

A07030 – Meetings 
A07031 – Compulsory committees 1 
A07032 – Non-compulsory committees 1 

A07040 – Conferences 

A0705 – Studies and consultations 

Other expenditure (specify) 

Information systems (A-5001/A-4300) 

Other expenditure - Part A (specify) 

Total  2,500 

The amounts are total expenditure for twelve months. 

1 Specify the type of committee and the group to which it belongs. 

I. 

II. 

Annual total (7.2 + 7.3) 

Duration of action 

III. 

Total cost of action (I x II) 

2,500 € 

6 years 

15,000 € 

8. 

FOLLOW-UP AND EVALUATION 

8.1. 

Follow-up arrangements 

The  President  of  the  Council  will  deposit  the  instrument  of  accession  with  the  Secretary-
General of UPOV. 

The  Commission  will  represent  the  Community  at  the  meetings  of  the  UPOV  Council  and 
other bodies established by that Council and at any other meeting organised by UPOV.  

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8.2. 

Arrangements and schedule for the planned evaluation 

No evaluation planned. 

9. 

ANTI-FRAUD MEASURES 

Not applicable. 

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