Proposal for a Council Regulation amending Regulation (EC) No 2100/94 as regards the entitlement to file an application for a Community plant variety right
Date: 2007-07-25
Institutions: European Commission
Subjects: European organisation, crop production, plant propagation, protection of plant life

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.7.2007 
COM(2007) 445 final 

2007/0161 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 2100/94 as regards the entitlement to file an application 
for a Community plant variety right 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

Article 12 of the Community Regulation on plant variety rights sets out the conditions for the 
entitlement  to  file  an  application  for  a  Community  plant  variety  right.  According  to  this 
provision, only breeders from countries which are members of the International Union for the 
Protection  of  New  Varieties  of  Plants  (UPOV)  are  entitled  to  apply  for  a  Community  plant 
variety right (CPVR) under the same rules as for applicants from a Member State. 

For  other  applicants,  the  Commission  has  to  decide  whether  they  are  entitled  to  file  an 
application. According to Article 12(1)(b) of the Regulation, such a decision may be subject 
to  reciprocal  and  equivalent  requirements.  The  provision  stipulates  that  the  Commission’s 
decision may depend on whether the country in question, 

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affords protection for varieties of the same botanical taxon, 

affords this protection to nationals of all Member States, 

and whether the level of protection afforded corresponds to the protection provided 
by Regulation (EC) 2100/94. 

Objective of the proposed amendment  

To  facilitate  trade  and  align  the  provisions  of  the  Regulation  with  other  Community  law,  it 
appears necessary to amend Regulation 2100/94 so that the conditions for entitlement to file 
an  application  for  the  CPVR  are  simplified  and  one  application  system  for  all  applicants  is 
introduced. 

Potential impact of the amendment 

Deleting the provisions of Article 12(1)(a) and 12(1)(b) will contribute to the simplification of 
Community legislation. 

Since  its  establishment  in  1994  the  Community  Plant  Variety  Office  has  received  27317 
applications  for  Community  Plant  Variety  Rights  (situation  on  28  February  2007).  4693 
applications  (17.1  %)  originated  from  non-EU  countries.  During  the  whole  period  only  89 
applications  were  received  from  applicants  of  third  countries  which  were  not  member  of 
UPOV, requiring a Commission decision in accordance with Article 12(1)(b). 

Therefore, considering the twelve years experience with the implementation of the Regulation 
and the number and situation of countries which are not member of UPOV, this proposal will 
have no noticeable impact on small or medium-sized undertakings in the Member States. 

The proposal has no new financial implications for the Community budget. 

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2007/0161 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 2100/94 as regards the entitlement to file an application 
for a Community plant variety right 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 308 thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Parliament2, 

Whereas: 

(1) 

(2) 

Regulation  (EC)  No  2100/94  of  27  July  1994  on  Community  plant  variety  rights3
creates  a  Community  regime  for  plant  varieties,  which  allows  for  the  grant  of 
Community plant variety rights (CPVR), valid throughout the Community. 

In  the  interests  of  the  facilitation  of  trade  it  is  appropriate  to  make  the  CPVR  easily 
accessible.  Therefore,  the  conditions  for  entitlement  to  file  an  application  for  the 
CPVR  should  be  simplified  and  one  application  system  for  all  applicants  should  be 
introduced.  

(3) 

Regulation (EC) 2100/94 should therefore be amended accordingly, 

HAS ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 2100/94 is amended as follows: 

(1) 

Article 12 is replaced by the following: 

1 
2 
3 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ  L  227,  1.9.1994,  p.  1.  Regulation  as  last  amended  by  Regulation  (EC)  No  873/2004  (OJ  L  162, 
30.4.2004, p. 38).  

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"Article 12 

Entitlement to file an application for a Community plant variety right 

An  application  for  a  Community  plant  variety  right  may  be  filed  by  any  natural  or 
legal person, or any body ranking as a legal person under the law applicable to that 
body. 

An application may be filed jointly by two or more such persons." 

(2) 

(3) 

In Article 41(2), the words “12 (1) (b),” are deleted. 

Article 52(4) is replaced by the following:  

"4.  Paragraphs 2 and 3 shall also apply in respect of earlier applications that were 

filed in another Member State."  

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

Article 2 

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

Done at Brussels, 

For the Council 
The President 

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