2005/523/: Council Decision of 30 May 2005 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: 2005-05-30
Institutions: Council of the European Union
Subjects: accession to an agreement, intellectual property, international convention, plant variety right

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COUNCIL DECISION

of 30 May 2005

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

(2005/523/EC)

THE COUNCIL OF THE EUROPEAN UNION,

HAS DECIDED AS FOLLOWS:

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 308,
in conjunction with
Article 300(2), first subparagraph and Article 300(3), first sub-
paragraph thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

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.

Article 1

The revised text of

1.
the UPOV Convention is hereby
approved on behalf of the Community with regard to matters
within its competence.

The revised text of the UPOV Convention and a Declaration

2.
of the European Community are attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the
person or persons empowered to deposit, on behalf of the Com-
munity, the instrument of accession with the Secretary-General of
the Union for the Protection of New Varieties of Plants.

Article 3

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

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

Done at Brussels, 30 May 2005.

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

For the Council

The President

F. BODEN

(1)

(2)

(3)

(4)

(5)

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ACT OF 1991

INTERNATIONAL CONVENTION FOR THE PROTECTION OF NEW VARIETIES
OF PLANTS

of 2 December 1961,

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

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

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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

Chapter X:

Final provisions

Article 33:

Signature

Article 34: Relations between Contracting Parties and States bound by earlier Acts

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

(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
organisation, the territory in which the constituting treaty of
that intergovernmental organisation applies;

(ix)

‘authority’ means
Article 30(1)(ii);

the

authority

referred

to

in

For the purposes of this Act:

(i)

(ii)

‘this Convention’ means the present (1991) Act of the Inter-
national Convention for the Protection of New Varieties of
Plants;

(x)

‘Union’ means the Union for the Protection of New Variet-
ies of Plants founded by the Act of 1961 and further men-
tioned in the Act of 1972, the Act of 1978 and in this
Convention;

‘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 10 November
1972;

(xi)

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

(iii)

‘Act of 1978’ means the Act of 23 October 1978, of the
International Convention for the Protection of New Variet-
ies of Plants;

CHAPTER II

GENERAL OBLIGATIONS OF THE CONTRACTING PARTIES

(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 aforemen-

tioned 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, irrespec-
tive of whether the conditions for the grant of a breeder’s
right are fully met, can be

— defined by the expression of the characteristics result-
ing 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,

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

(States already members of the Union) Each Contracting Party
1.
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,

and

(i)

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

— considered as a unit with regard to its suitability for

being propagated unchanged;

and

(vii)

‘Contracting Party’ means a State or an intergovernmental
organisation, Party to this Convention;

(ii) at the latest by the expiration of a period of 10 years from the

said date, to all plant genera and species.

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Article 4

National treatment

Article 6

Novelty

(Treatment) Without prejudice to the rights specified in this
1.
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, pro-
vided that the said nationals, natural persons or legal entities com-
ply with the conditions and formalities imposed on the nationals
of the said other Contracting Party.

(Nationals) For the purposes of the preceding paragraph,
2.
‘nationals’ means, where the Contracting Party is a State, the
nationals of that State and, where the Contracting Party is an
intergovernmental organisation, the nationals of the States which
are members of that organisation.

CHAPTER III

CONDITIONS FOR THE GRANT OF THE BREEDER’S RIGHT

Article 5

Conditions of protection

(Criteria to be satisfied) The breeder’s right shall be granted

1.
where the variety is

(i) new,

(ii) distinct,

(iii) uniform

and

(iv) stable.

(Other conditions) The grant of the breeder’s right shall not be
2.
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 for-
malities provided for by the law of the Contracting Party with
whose authority the application has been filed and that he pays
the required fees.

1.
(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)

in the territory of the Contracting Party in which the appli-
cation has been filed earlier than one year before that date,

and

(ii)

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.

2.
(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 con-
sider a variety of recent creation existing at the date of such exten-
sion 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.

3.
(Territory in certain cases) For the purposes of paragraph 1, all
the Contracting Parties which are member States of one and the
same intergovernmental organisation may act jointly, where the
regulations of that organisation so require, to assimilate acts done
on the territories of the States members of that organisation to
acts done on their own territories and, should they do so, shall
notify the Secretary-General accordingly.

Article 7

Distinctness

The variety shall be deemed to be distinct if it is clearly distin-
guishable 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 breed-
er’s right or for the entering of another variety in an official reg-
ister 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.

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Article 8

Uniformity

The variety shall be deemed to be uniform if, subject to the varia-
tion that may be expected from the particular features of its
propagation,
relevant
characteristics.

sufficiently uniform in its

is

it

Article 9

Stability

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

CHAPTER IV

APPLICATION FOR THE GRANT OF THE BREEDER’S RIGHT

Article 10

Filing of applications

(Claiming the right) In order to benefit from the right of pri-
2.
ority, the breeder shall, in the subsequent application, claim the
priority of the first application. The authority with which the sub-
sequent application has been filed may require the breeder to fur-
nish, 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.

3.
(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 appro-
priate 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.

(Events occurring during the period) Events occurring within the
4.
period provided for in paragraph 1, such as the filing of another
application or the publication or use of the variety that is the sub-
ject 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.

1.
(Place of first application) The breeder may choose the Con-
tracting Party with whose authority he wishes to file his first
application for a breeder’s right.

Article 12

Examination of the application

2.
(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 appli-
cation was filed.

3.
(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
organisation

Any decision to grant a breeder’s right shall require an examina-
tion for compliance with the conditions under Articles 5 to 9. In
the course of the examination, the authority may grow the vari-
ety 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

Article 11

Right of priority

1.
(The right; its period) Any breeder who has duly filed an appli-
cation 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.

Each Contracting Party shall provide measures designed to safe-
guard the interests of the breeder during the period between the
filing or the publication of the application for the grant of a breed-
er’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

5.

(Essentially derived and certain other varieties)

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 authorisation 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 authorisation subject to condi-

tions and limitations.

2.
(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 unauthorised use of propagating
material of the protected variety shall require the authorisation of
the breeder, unless the breeder has had reasonable opportunity to
exercise his right in relation to the said propagating material.

3.
(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 unauthorised
use of the said harvested material shall require the authorisation
of the breeder, unless the breeder has had reasonable opportunity
to exercise his right in relation to the said harvested material.

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

tion to:

(i)

varieties which are essentially derived from the protected
variety, where the protected variety is not itself an essen-
tially derived variety;

(ii) varieties which are not clearly distinguishable in accor-

dance 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 expres-
sion 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 soma-
clonal 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

(Compulsory exceptions) The breeder’s right shall not extend

1.
to:

(i)

acts done privately and for non-commercial purposes;

(ii) acts done for experimental purposes;

and

4.
(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
authorisation of the breeder.

(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.

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(Optional exception) Notwithstanding Article 14, each Con-
2.
tracting 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 farm-
ers 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).

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 vari-
ety 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.

(Meaning of material) For the purposes of paragraph (1),

2.
‘material’ means, in relation to a variety,

(i) propagating material of any kind,

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

(Equitable remuneration) When any such restriction has the
2.
effect of authorising a third party to perform any act for which the
breeder’s authorisation is required, the Contracting Party con-
cerned 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 import-
ing or exporting of such material. In any case, such measures shall
not affect the application of the provisions of this Convention.

Article 19

Duration of the breeder’s right

(Period of protection) The breeder’s right shall be granted for

1.
a fixed period.

2.
(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.

CHAPTER VI

VARIETY DENOMINATION

Article 20

Variety denomination

and

(Designation of

1.
denomination)

varieties by denominations; use of

the

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

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

be its generic designation.

3.
(Territory in certain cases) For the purposes of paragraph 1, all
the Contracting Parties which are member States of one and the
same intergovernmental organisation may act jointly, where the
regulations of that organisation so require, to assimilate acts done
on the territories of the States members of that organisation 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

1.
(Public interest) Except where expressly provided in this Con-
vention, no Contracting Party may restrict the free exercise of a
breeder’s right for reasons other than of public interest.

(b) Each Contracting Party shall ensure that, subject to para-
graph 4, no rights in the designation registered as the denomi-
nation 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.

2.
(Characteristics of the denomination) The denomination must
enable the variety to be identified. It may not consist solely of fig-
ures 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 Con-
tracting Party, an existing variety of the same plant species or of a
closely related species.

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(Registration of the denomination) The denomination of the
3.
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
4.
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 accor-
dance with the provisions of paragraph (7), is obliged to use it, the
authority shall require the breeder to submit another denomina-
tion for the variety.

5.
(Same denomination in all Contracting Parties) A variety must
be submitted to all Contracting Parties under the same denomi-
nation. 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.

6.
(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 con-
cerning variety denominations, in particular the submission, reg-
istration and cancellation of denominations. Any authority may
address its observations, if any, on the registration of a denomi-
nation to the authority which communicated that denomination.

7.
(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 vari-
ety, except where, in accordance with the provisions of para-
graph 4, prior rights prevent such use.

8.
(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 asso-
ciated, the denomination must nevertheless be easily recognisable.

(ii)

that, where the grant of the breeder’s right has been essen-
tially 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.

(Exclusion of other reasons) No breeder’s right shall be declared
2.
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.

CHAPTER VII

NULLITY AND CANCELLATION OF THE BREEDER’S RIGHT

(Exclusion of other reasons) No breeder’s right shall be can-

2.
celled for reasons other than those referred to in paragraph 1.

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,

CHAPTER VIII

THE UNION

Article 23

Members

(i)

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,

The Contracting Parties shall be members of the Union.

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Article 24

Legal status and seat

(iv)

examine an annual report on the activities of the Union and
lay down the program for its future work;

1.

(Legal personality) The Union has legal personality.

(v)

give to the Secretary-General all necessary directions for the
accomplishment of the tasks of the Union;

2.
(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 ful-
filment 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

3.
Geneva.

(Headquarters agreement) The Union has a headquarters agree-

4.
ment with the Swiss Confederation.

Article 25

Organs

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

Article 26

The Council

6.

(Votes)

(Composition) The Council shall consist of the representatives
1.
of the members of the Union. Each member of the Union shall
appoint one representative to the Council and one alternate. Rep-
resentatives or alternates may be accompanied by assistants or
advisers.

2.
(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.

3.
(Sessions) The Council shall meet upon convocation by its
President. An ordinary session of the Council shall be held annu-
ally. In addition, the President may convene the Council at his dis-
cretion; he shall convene it, within a period of three months, if
one third of the members of the Union so request.

(Observers) States not mMmbers of the Union may be invited
4.
as observers to meetings of the Council. Other observers, as well
as experts, may also be invited to such meetings.

5.

(i)

(Tasks) The tasks of the Council shall be to:

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 appoint-
ment of each;

(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 organi-
sation may, in matters within its competence, exercise the
rights to vote of its member States that are members of the
Union. Such an intergovernmental organisation 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 quarters of
the votes cast. Abstentions shall not be considered as votes.

Article 27

The Office of the Union

1.
(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
2.
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.

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(Staff) Subject to the provisions of Article 26(5)(iii), the con-
3.
ditions 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
1.
Spanish languages shall be used by the Office of the Union in car-
rying out its duties.

(Languages in certain meetings) Meetings of the Council and of

2.
revision conferences shall be held in the four languages.

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) The amount of the contribution of each State member of the
Union shall be obtained by multiplying the amount corre-
sponding to one contribution unit by the number of contri-
bution units applicable to that State member of the Union.

(Further languages) The Council may decide that further lan-

3.
guages shall be used.

5.

(Arrears in contributions)

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) The 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 contri-
butions of the States members of the Union and to the num-
ber 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.

3.

(Contributions: share of each member)

(a) The 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) Any 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 num-
ber of contribution units different from the number appli-
cable 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 sec-
ond calendar year which follows the year in which the dec-
laration was made.

(a) State member of the Union which is in arrears in the pay-
ment of its contributions may not, subject to subpara-
graph (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 sus-
pension of the right to vote shall not relieve such State mem-
ber 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 excep-
tional 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 pro-
vided in the administrative and financial regulations. Such State
Member of the Union shall be designated, with its agreement, by
the Council.

(Contributions of intergovernmental organisations) Any Con-
7.
tracting Party which is an intergovernmental organisation 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.

CHAPTER IX

IMPLEMENTATION OF THE CONVENTION; OTHER
AGREEMENTS

Article 30

Implementation of the Convention

(Measures of implementation) Each Contracting Party shall
1.
adopt all measures necessary for the implementation of this Con-
vention; in particular, it shall:

(i) provide for appropriate legal remedies for the effective

enforcement of breeders’ rights;

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(ii) maintain an authority entrusted with the task of granting
breeders’ rights or entrust the said task to an authority main-
tained by another Contracting Party;

CHAPTER X

FINAL PROVISIONS

(iii) ensure that the public is informed through the regular pub-

lication of information concerning

Article 33

Signature

— applications for and grants of breeders’ rights,

and

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 31 March 1992.

— proposed and approved denominations.

Article 34

Ratification, acceptance or approval; accession

2.
(Conformity of laws) It shall be understood that, on deposit-
ing its instrument of ratification, acceptance, approval or acces-
sion, as the case may be, each State or intergovernmental
organisation must be in a position, under its laws, to give effect
to the provisions of this Convention.

1.

(States and certain intergovernmental organisations)

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

this Convention.

Article 31

(b) Any intergovernmental organisation may, as provided in this

Article, become party to this Convention if it

Relations between Contracting Parties and States bound
by earlier acts

1.
(Relations between States bound by this Convention) Between
States members of the Union which are bound both by this Con-
vention and any earlier Act of the Convention, only this Conven-
tion shall apply.

2.
(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 notifica-
tion and until the State member of the Union making the decla-
ration 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 them-
selves special agreements for the protection of varieties, insofar as
this
such agreements do not contravene the provisions of
Convention.

(i) has competence in respect of matters governed by this

Convention,

(ii) has its own legislation providing for the grant and pro-
tection of breeders’ rights binding on all its member
States,

and

(iii) has been duly authorised, in accordance with its internal

procedures, to accede to this Convention.

(Instrument of adherence) Any State which has signed this
2.
Convention shall become party to this Convention by depositing
an instrument of ratification, acceptance or approval of this Con-
vention. Any State which has not signed this Convention and any
intergovernmental organization shall become party to this Con-
vention by depositing an instrument of accession to this Conven-
tion.
ratification, acceptance, approval or
accession shall be deposited with the Secretary-General.

Instruments of

3.
(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.

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Article 35

Reservations

(Publication of the information) The Secretary-General shall,
3.
on the basis of communications received from each Contracting
Party concerned, publish information on

(Principle) Subject to paragraph 2, no reservations to this

1.
Convention are permitted.

(i)

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

2.

(Possible exception)

and

(a) Notwithstanding 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 repro-
duced 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 Conven-
tion to those varieties.

(b) Any 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 ratifi-
cation, acceptance or approval of or accession to this Convention,
as the case may be, any State or intergovernmental organisation
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.

(Notification of

2.
promptly notify the Secretary-General of

changes) Each Contracting Party shall

(ii)

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

Article 37

Entry into force; closing of earlier acts

(Initial entry into force) This Convention shall enter into force
1.
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.

2.
(Subsequent entry into force) Any State not covered by para-
graph 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
3.
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 Assem-
bly of the United Nations, is regarded as a developing country
may deposit such an instrument until 31 December 1995, and
that any other State may deposit such an instrument until
31 December 1993, even if this Convention enters into force
before that date.

Article 38

Revision of the Convention

1.
(Conference) This Convention may be revised by a conference
of the members of the Union. The convocation of such confer-
ence shall be decided by the Council.

2.
(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.

(i)

any changes in its legislation governing breeders’ rights,

Article 39

Denunciation

and

(ii) any extension of the application of this Convention to addi-

tional plant genera and species.

1.
(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.

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(Earlier Acts) Notification of the denunciation of this Con-
2.
vention shall be deemed also to constitute notification of the
denunciation of any earlier Act by which the Contracting Party
denouncing this Convention is bound.

3.
(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.

4.
(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.

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 mem-
bers of the Union.

Article 41

Original and official texts of the Convention

1.
(Original) This Convention shall be signed in a single origi-
nal 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.

2.
(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

1.
(Transmittal of copies) The Secretary-General shall transmit
certified copies of this Convention to all States and intergovern-
mental organizations which were represented in the Diplomatic
Conference that adopted this Convention and, on request, to any
other State or intergovernmental organisation.

(Registration) The Secretary-General shall register this Con-

2.
vention with the Secretariat of the United Nations.

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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 4 to 19 March 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 Con-
tracting 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 Confer-
ence will not, upon its ratification, acceptance, approval or accession by Denmark or the Netherlands, be auto-
matically 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.

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 budget-
ary period 2005’.