Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the extension of the term of Community plant variety rights for the species asparagus and the species groups flower bulbs, woody small fruits and woody ornamentals
Date: 2021-02-03
Institutions: Directorate-General for Health and Food Safety, European Commission
Subjects: arboriculture, floriculture, fruit-growing, industrial property, perennial vegetable, plant propagation, plant variety right

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   EUROPEAN COMMISSION  Brussels, 3.2.2021  COM(2021) 36 final 2021/0019 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the extension of the term of Community plant variety rights for the species asparagus and the species groups flower bulbs, woody small fruits and woody ornamentals  
 
EXPLANATORY MEMORANDUM 

1. 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The initiative concerns a Regulation adopted on the basis of Article 118 (1) of the Treaty on 
the Functioning of the European Union on extending the term of protection from 25 years to 
30  years  for the species  asparagus,  and the species groups flower bulbs,  woody small fruits 
and  woody  ornamentals,  as  currently  set  out  in  Article  19  of  Council  Regulation  (EC)  No 
2100/94  on  Community  Plant  Variety  Rights.  Such  an  additional  protection  is  currently  in 
place  for  species  of  trees,  vines  and  potatoes.  The  extension  request  was  made  by  the 
Administrative Council of the Community Plant Variety Office (CPVO) following a request 
of  breeders  represented  by  the  breeders’  organisations  Ciopora,  Euroseeds  and  Plantum,  as 
well as the company James Hutton Ltd.  

The CPVO and the Commission (DG SANTE) have carried out an analysis, whether for 
the  species  concerned  there  are  technical  difficulties  in  breeding  requiring 
expenditure of research activities for a long period, whether the multiplication 
of propagating material takes long, whether the new varieties reveal commercial 
value  only  in  the  long  term  and  the  return  for  investments  into  research 
activities  is  only  possible  at  a  fairly  late  stage  of  the  protection  in  comparison 
with  other  horticultural  or  agricultural  crops.  The  analysis  carried  out  shows 
that for the species of asparagus, and for the species groups flower bulbs, woody 
small fruits and woody ornamentals the term of protection should be extended 
by five years in order to establish a legal environment conducive to achieving an 
equitable refunding of research and breeding.•  Consistency with existing policy 
provisions in the policy area 

This is a technical implementation of existing requirements and thus consistent with existing 
policy provisions in the policy area of European plant breeders’ rights. 

• 

Consistency with other Union policies 

This proposal is in line and complies with the Union’s rules. 

2. 

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LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The legal basis of this act is Article 118 (1) of the Treaty on the Functioning of the European 
Union,  which  empowers  the  European  Parliament  and  the  Council,  in  accordance  with  the 
ordinary legislative procedure to establish measures for the creation of European intellectual 
property  rights  to  provide  uniform  protection  of  intellectual  property  rights  throughout  the 
Union  and  for  the  setting  up  of  centralised  Union-wide  authorisation,  coordination  and 
supervision arrangements.  

• 

Subsidiarity (for non-exclusive competence)  

Requirements  for  plant  breeders’  rights  are  regulated  at  the  Union  level,  and  in  order  to 
guarantee  the  same  protection  period  for  plant  breeders’  rights,  action  at  Union  level  is 
necessary. 

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Proportionality 

This is the only possible form of Union action to achieve the pursued objective. 

• 

Choice of the instrument 

The  legal  instrument  is  provided  for  by  the  legal  base,  Article  118  of  the  Treaty  on  the 
Functioning of the European Union. 

3. 

• 

N/A 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Stakeholder consultations 

Several  breeders’  organisations  have  made  a  request  to  prolong  the  protection  period  for 
certain species. The key stake holders and Member States have been informed and consulted 
both in the Administrative Council of CPVO, which resulted in a formal request of the body 
to  the  Commission,  and  in  the  Standing  Committee  on  Plants,  Animal,  Food  and  Feed.  No 
technical 
separate  consultation  has  been  required,  as 
implementation  of  existing  rules  and  no  separate  consultation  has  taken  place  under  similar 
initiatives in the past.  

initiative  only  concerns 

the 

• 

Collection and use of expertise 

The Commission has carried out a technical analysis together with the CPVO.  

• 

Impact assessment 

It is an act of technical nature and implementing existing rules drawn on the experience of the 
parties concerned. Therefore, there is no requirement for impact assessment. 

• 

Regulatory fitness and simplification 

This proposal is not linked to REFIT. This proposal of an additional period of protection of 
five  years  would  help  to  achieve  sufficient  return  of  investments  made  and  encourage  the 
breeding of new improved varieties for the benefit of growers, consumers and the society at 
large. Moreover, the access  of in particular of SMEs  to  export markets  could  be  facilitated. 
The nature of the problem will not change when society makes greater use of the internet and 
social  media  except  that  the  offer  of  new  plant  varieties  over  internet  (internet  sales)  to 
consumers most likely keeps increasing. 

• 

Fundamental rights 

Right  to  intellectual  property,  Article  17(2)  of  the  Charter  of  Fundamental  Rights  of  the 
European Union1 

4. 

No 

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BUDGETARY IMPLICATIONS 

Charter of Fundamental Rights of the European Union (OJ C 326, p. 391, 26.10.2012). 

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5. 

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N/A 

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N/A 

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OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Explanatory documents (for directives) 

Detailed explanation of the specific provisions of the proposal 

The aim of this proposal is to increase the protection of Community Plant Variety Rights from 
25 to  30  years for the species asparagus,  and the species  groups flower  bulbs, woody small 
fruits and woody ornamental crops. For this purpose a Regulation to provide for the extension 
is  provided  for  and  in  its  Article  2(1)  the  term  of  protection  for  the  concerned  species  is 
extended by five years. 

Moreover,  Article  2(2)  of  this  proposal  intends  to  take  into  count  the  duration  of  national 
plant variety rights. In the case of varieties for which a national plant variety right was granted 
prior  to  the  grant  of  the  Community  plant  variety  right,  but  to  which  Article  116(4)  fourth 
indent  of  the  Regulation  1994/2100  EC  does  not  apply,  the  extension  referred  to  in  Article 
2(2)  of  this  proposal  shall  be  reduced  by  the  longest  period  in  full  years  during  which  any 
national property right or rights granted have been effective in a Member State in respect of 
the same variety prior to the grant of the Community plant variety right. 

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2021/0019 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the extension of the term of Community plant variety rights for the species asparagus 
and the species groups flower bulbs, woody small fruits and woody ornamentals 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular the 
first paragraph of Article 118 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the Economic and Social Committee2 
Acting in accordance with the ordinary legislative procedure3  

Whereas: 

(1) 

(2) 

(3) 

Technical difficulties in  breeding, due to complex genetic backgrounds or due to the 
slow or technically complicated reproduction of the species asparagus and the species 
groups flower bulbs, woody small fruits and woody ornamentals  require investments 
for  research  activities.  Once  protection  is  granted  for  the  species  mentioned,  it  takes 
years to multiply the plants and to build up a stock that is sufficiently large to generate 
a reasonable income. Accordingly, the time during which the holder of the rights can 
generate income based on the protection is limited for practical reasons. To encourage 
the  investment  in  research  and  development  for  such  varieties  it  is  necessary  to 
prolong the period of variety protection and incentivize breeding activities to develop 
new  varieties  to  face  the  needs  of  farmers  and  consumers  and  to  face  the  impact  of 
climate change. Those investments require a longer period to be profitable than for the 
overwhelming majority of other species, such as agricultural crops, which often have a 
shorter life span and a larger and wider range of customers. 

In  addition,  the  market  introduction  and  market  uptake  of  a  new  variety  of  those 
species requires a longer time, as experience has shown that a new variety reveals its 
commercial value only in the long term. For those reasons, an equitable refunding of 
the research investment is only possible at a fairly late stage of the protection of those 
species in comparison with the other crops. 

In  order  to  establish  a  legal  environment  conducive  to  achieving  an  equitable 
refunding, it is appropriate to extend by further five years the term of the Community 
plant  variety  rights  concerning  the  species  asparagus,  and  the  species  groups  flower 
bulbs, woody small fruits and woody ornamentals. 

2 
3 

OJ C ../../….2020, p. ….  
Position of the European Parliament of … and decision of the Council of ….. 

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(4) 

(5) 

For  reasons  of  consistency,  such  extension  should  apply  to  all  Community  plant 
variety  rights  regarding  the  species  asparagus,  and  the  species  groups  flower  bulbs, 
woody small fruits and woody ornamentals. 

The  period  of  extension  should  be  reduced  if  national  property  rights  in  respect  of 
those  varieties  have  been  effective  in  a  Member  State  prior  to  the  grant  of  a 
Community plant variety right and, accordingly, would already have allowed breeders 
to exploit their varieties. 

HAVE ADOPTED THIS REGULATION: 

Article 1 
Definitions 

For the purposes of this Regulation, the following definitions shall apply: 

(1) 

(2) 

1. 

2. 

1. 

2. 

‘the plant varieties concerned’ means the plant varieties of the species asparagus and 
the species groups flower bulbs, woody small fruits and woody ornamentals; 

‘the  term  of  the  right’  means  the  term,  resulting  from  Article  19(1)  of  Council 
Regulation (EC) No 2100/94, of a Community plant variety right. 

Article 2 
Extension of the term of rights 

The term of the right of the plant varieties concerned shall be extended by five years. 
That extension shall apply to rights granted before, on or after 1 July 2021.  

Paragraph 1 is without prejudice to: 

(a)  Article 3 of this Regulation; 

(b) 

the fourth indent of Article 116(4) of Regulation (EC) No 2100/94. 

Article 3 
Reduction of the extension of the term of rights 

For the plant varieties referred to in paragraph 2, the extension of the term provided 
for in Article 2 shall be reduced by the longest period in full calendar  years during 
which any national property right or rights granted have been effective in a Member 
State in respect of the same variety prior to the grant of the Community plant variety 
right. 

Paragraph  1  shall  apply  to  the  plant  varieties  concerned  not  subject  to  the  fourth 
indent  of  Article  116(4)  of  Regulation  (EC)  No  2100/94  and  which  have  been 
granted one or more national plant variety rights prior to the grant of a Community 
plant variety right. 

Article 4  
Entry into force and application 

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

It shall apply from 1 July 2021. 

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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