CELEX: 51996PC0095
Language: en
Date: 1996-03-13
Title: Proposal for a COUNCIL REGULATION (EC) providing for an extension of the duration of a Community plant variety right in respect of potatoes

COMMISSION OF THE EUROPEAN COMMUNITIES
                                               Brussels, 13.03.1996
                                               COM(96) 95 final
                                Proposal for a
                     COUNCIL REGULATION (EC)
providing for an extension of the duration of a Cononunity plant variety
                      right in respect of potatoes
                       (presented by the Commission)
 ---pagebreak---  ---pagebreak---                            EXPLANATORY MEMORANDUM
Council Regulation (EC) No 2100/94 on Community plant variety rights1 has
established a new Community regime which provides for the grant, at
Community level, of plant variety rights, a specific form of industrial
property rights system for new plant varieties. These rights will have a
direct and uniform effect throughout the Community.
For the purpose of the implementation of a Regulation, a Community Plant
Variety Office, hereinafter referred to as "the Office", has legally been
established on 01.09.1994, the date of entry into force of the Regulation.
If granted by the Office, the term of a Community plant variety right
shall, in principle, run until the end of the 25th calendar year or, in the
case of varieties of vine and tree species, until the end of the 30th
calendar year, following the year of grant. The Regulation provides for the
possibility of extending these terms up to a further five years. To this
end, an implementing regulation may be adopted by the Council, acting by
qualified majority on proposal from the Commission.
The attached Commission proposal aims at providing for an extension in the
case of plant varieties of potatoes. The need for such proposal at this
moment results from the following:
1. It is a recognised principle that breeding of new potato varieties
    entails specific technical difficulties and promises equitable benefit
    at a fairly late stage. Both, the research expenses and the successful
    establishment of even the best potato varieties on the market can hence
    not be compared with other agricultural crops.
    This recognised principle is reflected in the national legislation of
    most of the Member States of the European Union being also Member of
    the International Union for the Protection of New Varieties of Plants
    (UPOV), which provide for an extension of the duration of a national
    property right in the case of potatoes by a further 5 years in
    comparison with the other agricultural species. As the European
    Community also envisages accession to UPOV by ratifying the convention
    of 1991, it is appropriate to align the policy on the duration of
    protection for potato varieties.
    0J No L 227, 1.9.1994, p. 1, as last amended by Council Regulation (EC)
    No 2506/95 of 25.10.1995, 0J No L 258, 28.10.1995, p. 3
                                    I
 ---pagebreak---                                     - 2 -
2.  The Office has been operational since 1995 and has received more than
    3200 applications for Community plant variety rights amongst which
    about 200 applications relate to potato varieties  (state as at
    1.2.1996).
    It is probable that the first Community plant variety rights will be
    granted in 1996 by the Office.
    In consequence, expectations of potato breeders the legitimacy of which
    is explained above will soon have found shape in Community plant
    variety rights. Immediate action by the European Community is hence
    required in order to allow an appropriate planning for potato breeders
    in future.
Subsidiarity
a)  What are the objectives of the measure in relation to obligations with
    which the Community is charged?
    The measure pursues the same objective as the Regulation No 2100/94,
    i.e. to ensure compatibility with the requirements of the single market
    concept; the proposal does not affect the co-existence of national
    regimes with the Community system.
b)  Does the measure arise from an area where there is exclusive Community
    competence or where competence is shared with Member States?
    Exclusive Community competence in respect of the Community systems of
    industrial property rights.
c)  What forms of actions are at the disposal of the Community?
    Legislation implementing an already adopted regulation, exclusively.
d)  Is uniform regulation necessary or would a directive imposing general
    objectives suffice, leaving execution to be carried out at Member
    State's level?
    Uniform regulation is necessary.
The proposal would have no impact on small or medium-sized enterprises and
no financial implications for the budget for the European Union.
                                       3
 ---pagebreak---                                  PROPOSAL FOR
 COUNCIL REGULATION (EC)       providing for an extension of the terms of a
            Community plant variety right in respect of potatoes
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing Che European Community,
Having regard to Council Regulation (EC) No 2100/94 of 27 July 1994 on
Community plant variety rights1, as amended by Regulation (EC) No 2506/95
of 25 October 19952, and in particular Article 19 (2) thereof,
Having regard to the proposal from the Commission,
Whereas it is recognised that technical difficulties in potato breeding
require expenditure of research activities for a long period in comparison
with the overwhelming majority of all the other agricultural crops;
whereas, in addition, experience on the market has shown that a new potato
variety reveals its commercial value only in long terms in comparison with
those agricultural species requiring also long term research activities;
whereas, for these reasons, an equitable refunding of the research
activities is only possible at a fairly late stage of the protection in
comparison with the other agricultural crops;
Whereas in order to establish a legal environment conducive to achieve such
equitable refunding, an extension of the initial duration of a Community
plant variety right by further five years in the case of potatoes is the
most appropriate measure;
Whereas such extension should apply to all valid Community plant variety
rights which were granted prior to the entry into force of this Regulation
or which will be granted in future unless such a right is duly surrendered
by the holder or terminated by a decision of the Community Plant Variety
Office;
    OJ No L 227, 1.9.1994, p.l
    OJ No L 258, 28.10.1995, p.3
                                      k
 ---pagebreak---                                    - 2 -
Whereas the period of extension should be reduced if a national property
right or rights in respect of the same variety have been effective in a
Member State prior to the grant of a Community plant variety right and
accordingly, would have allowed a breeder to take already advantages of his
variety; whereas a comparable principle was already laid down, under the
transitional regime of Article 116 of the Basic Regulation;
HAS ADOPTED THIS REGULATION:
                                 Article 1
1. The duration of a Community plant variety right in respect of varieties
    of potatoes shall be extended until the end of the 5th calendar year,
    following the last calendar year Of the duration provided for in
    Article 19(1) of the Basic Regulation.
2.  In the case of varieties to which Article 116(4) 4th indent of the
    Basic Regulation does not apply, the extension referred to in paragraph
    1 shall be reduced by the longest period in full years during which any
    national property right or rights have been effective in a Member State
    in respect of the same variety prior to the grant of the Community
    plant variety right.
                                  Article 2
This Regulation shall enter into force on the day following its publication
in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in
all Member States.
 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                             COM(96) 95 final
                                              DOCUMENTS
EN                                                                           03
                                     Catalogue number : CB-CO-96-099-EN-C
                                                             ISBN 92-78-01302-1
Office for Official Publications of the European Communities
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