CELEX: 51993PC0104
Language: en
Date: 1993-03-29
Title: Amended proposal for a COUNCIL REGULATION (EEC) on Community plant variety rights

••easftaeasKEi
                      COMMISSION OF THE EUROPEAN COMMUNITIES
                                                                         C0M(93) 104 final
                                                                         Brussels,  29 March 1993
      iAKSBïsses
                                            Amended proposal for a
                                           rrniiuni R E G U L A T I O N (EEC)
                                       on Community plant variety rights
                            (presented by the Commission pursuant to Article 149(3)
                                               of the EEC-Treaty)
^  y-   :>   ' i
Arlfeaassa
t^ElŒS
 ---pagebreak---                            EXPLANATORY MEMORANDUM
At its session of 28.10.1992, the Europoan Parliament doliverod ito opinion
on the Commission proposal contained in document COM(90)347-final,
concerning a proposal for a Council Regulation on Community plant variety
rights.
The present amended proposal takes into account amendments suggested by the
European Parliament on which the Commission has taken a favourable
position.
                                   ******
 ---pagebreak---                                                       Amended proposal for a
                                                    COUNCtL REGULAT10M        IEEC!
                                           on Community plant variety rights
      In response to the opinion delivered by the European Parliament(1) on the
      proposal for a Council Regulation sent by the Commission to the Council on
      6 September 1990 on Community plant variety rights, and in accordance with
      the third paragraph of Article 149 of the Treaty establishing the European
      Economic Community, the Commission has decided to amend the aforementioned
      proposal as follows:
                      ORIGINAL      PROPOSAL                                              AMENDED PROPOSAL
                            Article    S                                                       Article   5
       Object    of Community plant         variety        right           Object    of Community plant       variety    right
1. Varieties of all        botanical      taxa and hybride of           Unchanged
   taxa may form the object            of Community plant
   variety     rights.
2. For the purpose of this Regulation,                   "variety"      For the purpose     of   this  Regulation     "variety"
   shall    be taken to mean any group of plante                  as    shall  mean a plant     grouping within     a   single
   well    ae parte    of those plants aB far            as they        botanical    taxon of   the lowest    known rank, which
   comprise more than a cell             or cell     line   and are     grouping can be:
   uauable for      the production        of plante,       both         - defined    by the expression     of   the
   referred     to hereinafter        ae   "individuale",                 characterietice      resulting   from a given       genotype
   provided      that:                                                    or combination of        genotype,
    (a)   i t may be defined         ae an entity       on the          - distinguished     from any other plant       grouping by
          basis of the expression            of    the                    the expression     of at least     one of the     said
           characterietice        of its individuals or of a              characteristics,      and
          particular      distribution       of such                    - considered    as a unit     with regard   to    its
           expreeeione     in its       individuale,                      suitability    for being propagated       unchanged.
    (b)    the expreeeione        of the characterietice            of
           its individuals        are hereditary,        or
           reproduceable      in ueing       repeatedly
           individuale     of its components, and
    (c)    the combination of expressions               of   the
           characteristics        of its   individuals        ie   not
           dietinctive     for    all  individuals of a
          botanical      taxon.
   In cases where the commercial use of a                      variety
   doee not imply        the production       of entire         plants,
     plants"    within    the meaning of the above
   definition      shall   be taken to mean those               parts
   of plants     which have to Jbe produced for                the
   purpose of ueing the             variety.
      (1)     OJ No C
 ---pagebreak---                              ORIGINAL          PROPOSAL                                                                   AMENDED PROPOSAL
                                    Article          11                                                                        Article      11
   Entitlement           to    Community           plant        variety              rights      Entitlement         to    Community      plant       variety           rights
1.  The    original         breeder         or    discoverer            of       the             The    breeder      or    discoverer       of    the    variety       or      his
    variety       or    hie     successor           in    title       shall         be           successor        in   title      shall   be    entitled         to    the
    entitled        to the Community plant                        variety               right.   Community       plant       variety         right.
2.  If    two   or    more     pereons         have      bred       or            discovered     Unchanged.
    the    variety        jointly,          entitlement             shall         be
   vested       jointly         in    them     or     their               respective
   successors           in     title.
   Where      a variety           is    derived         essentially                from          Deleted
   individuals            of    only      one     other       variety               (source
   variety)         for     which       a Community             plant              variety
   right      has     been      granted        under        this             Regulation,
   entitlement to the right referred                                  to in
   paragraph          1 shall         likewise          be vested           jointly           in
    the holder          of the plant              variety         right         in
   respect        of the source variety                       and the              original
   breeder        or discoverer              of the derived                       variety,
   or his successor,                    if:
     (a)     the derived             variety        IB the result of a
             mutation, or
     (b)     the derived             variety        exhibits                predominantly
             the same exprssions                    of most of the
             important          characteristics                  as the           source
             variety,         and no evidence                 is available                of
             an impact on economically                               relevant
             characteristics                as compared to the                        source
             variety.
   Where not a Community plant                            variety         right        but a     Deleted
   national         industrial           property           right       has been
   granted        in one of the States                      referred           to in
   Article        12(1) to another party                         for the            source
    variety,        the provisions                of paragraph              3 shall
    apply mutatis             mutandis,          providing            the law of
    the State         concerned           contains          a        provision
    comparable          to paragraph               3.
   If the breeder               or discoverer               is an           employee,            If the breeder            or discoverer         is an employee,                the
    the entitlement                to the Community plant                             variety    entitlement         to the Community plant                  variety         right
   right      shall       be determined               in accordance                  with        shall     be determined            in accordance          with      the
    the national            law applicable                to the           employment            national       law applicable           to the         employment
    relationship            in the context                of which            the                relationship          in the context           of which the               variety
    variety       was bred or                  discovered.                                       was bred or               discovered.
 ---pagebreak---                              ORIGINAL           PROPOSAL                                                           AMENDED PROPOSAL
6. Where     entitlement               to    a Community          plant            variety  Where entitlement            to a Community plant                   variety
   right     is     vested        jointly         in   two     or   more         persons    right    is vested       jointly       in two or more             pereone
   pursuant         to   paragraphs             2 to     5,    one    o more        of      pursuant      to paragraphs          2 or 3, one or more of
    them   may      empower         the      others      by        written                  them may empower the others                   by      written
   declaration            to    such       effect      to    claim      entitlement         declaration        to such effect           to claim            entitlement
   thereto.                                                                                 thereto.
7. For the purposes                 of proceedings              before        the           Deleted.
   Office,        the first           applicant          shall be deemed to
   be entitled           to claim the entitlement                        to the
   Community plant               variety          right.       This shall           not
   apply if the Office                     is aware, by the time                    the
   decision        on the aplication                   for grant of the
   Community plant               variety          right     is taJcen, or it
   is shown by a final                     judgment delivered                  with
   regard      to a claim for entitlement                          pursuant            to
   Article       95(4),         that entitlement                is not or is
   not solely          vested         in the first                  applicant.
   Where, in the event referred                            to in the           second
   sentence,          the identity              of the sole or               other
   person      entitled          has been determiend,                    the         latter
   may enter          the proceedings                ae         applicant.
                                    Article         13                                                                  Article       13
      Rights of the holder of a Community                                   plant              Rights    of the holder           of a Community             plant
            variety          right        and prohibited               acte                          variety      right     and prohibited             acts
   A Community plant                 variety         right      shall      have the         Unchanged
   effect       that the holder                 or holders          of the
   Community plant variety                        right,            hereinafter
   referred         to as "the holder",                    shall     be         entitled
   to effect          the acts set out in paragraph                            2 in
   respect       of the variety.
   All other persons                  shall       be prohibited,            without         All other persons            shall     be prohibited,              without
   prejudice          to the provisions                  of Articles           14 and       prejudice       to the provieione             of Articles         14 and
   IS, save with the consent of the holder,                                       from      15, save with the consent                 of the holder,            from
   reproducing           or propagating                the variety          or from         reproducing        or propagating            the variety        and, to
   offering,          disposing            of to others,            using       or          the extent        specified       in implementing           rules
   importing          into the Community, exporting                             from        pursuant to Article 109, the variety                        which ie
    the Community or possessing                          for any of the                     essentially        derived      from the protected                  variety,
   abovementioned              purposea           individuale           or     other        where the protected             variety       is not iteelf          an
   parte     of plante            or harveeted            material         of the           essentially derived variety,                    or from          offering,
   varieties          or products              obtained             directly                disposing      of to others,           ueing or importing                into
    therefrom,          all,      i.e.       individuale,           other        parte      the Community, exporting from the Community                              or
   of plante          or harvested              material        and products                possessing for any of the abovementioned                              purposes
   directly         obtained,           referred         to hereinafter              ae     individuale        or other parte           of plante       or      harveet&d
    "material".                                                                             material      of the varietieB             ae referred        to above or
                                                                                            producte      obtained       directly        therefrom,       all,     i.e.
                                                                                            individuale,         other parte         of plants or             harveeted
                                                                                            material      and producte          directly       obtained,           referred
                                                                                            to hereinafter          ae       "material".
                                                                                                                                                                            *1
 ---pagebreak---                                ORIGINAL            PROPOSAL                                                                  AMENDED PROPOSAL
3. If    in     the     case      of     Article          11(3)      no        Community           Deleted
   plant        variety         right        has     been       granted        for      the
   derived          variety,           all     other       persons         shall       be
   prohibited,              save       with      the     consent         of    the         holder
   of    the      source        variety,           from       effecting          acts       of
    the     type      set    put       in   paragraph             2 in     respect          of
    the    derived                 variety.
   The     exercise           of     the     rights         conferred           by                 The    exercise        of    the    rights        conferred        by       Community
   Community           plant        variety          rights        may     not          violate    plant      variety       rights       may   not      violate         any
   any    provisions              adopted          on     the    grounds         of        public  provisions          adopted       on    the    grounde         of       public
   morality,           public         policy         or    public        security;             the morality,         public      policy       or    public        security;          the
   protection             of    health         and     life       of      humans,                  protection          of   health       and    life      of    humane,          animale
   animals          or    plants;          the    protection             of      the               or   plante;        the    protection          of    the     environment        ;    or
   environment;               or     the     safeguarding               of                         the    safeguarding           of    competition,             trade       and
   competition,               trade        and     agricultural                     production.    agricultural                  production.
   For     the     purpose          of     safeguarding                       agricultural
   production             in    the      case      of    plant            species
   governed           by    Community            rules        on    the    marketing            of
   seeds        or    other       propagating                     material,
   authorization               may       be    given        at    Community             level
   and     in     accordance             with      the     procedure           laid       down
   in    the      implementing               rules       pursuant           to
   Article          109,      to    permit         growers          of          propagating
   material           of    a variety            for     which        a      Community
   plant        variety         right        has     been       granted        to      plant
   on    their        own holding              harvested                material
   obtained           therefrom.             Such      authorization               may      be
   given        only      under        conditions             which      shall      be     set
   up in        an appropriate                 manner         at Community                  level,
   upon       initiative            of     the           Commission.
 ---pagebreak--- ORIGINAL PROPOSAL                       AMENDED PROPOSAL
                                       Article      13a (new)
                          Derogation      from Plant variety               rights
                  By way of derogation            from Article         13, and for           the
                  purpose     of safeguarding         agricultural              production,
                  farmers may without           prejudice       to the          provisions
                  of paragraph        2, use on their         own holding          for     the
                  purposes      of reproduction         or propagation           -      either
                  by themselves        or with the help of others                  -
                  harvested      material      obtained      through            cultivation
                  on their      own holding       of propagating         material         of a
                  variety     coming under the Community                     variety
                  protection.
                  Any genus and species             excluded     by       special
                  exemption      from the provisions            of paragraph           1 of
                   this Article,        together     with any other               additional
                  requirement       or limitation         imposed by such
                  exclusion,       shall    be the subject         of        implementing
                  rules pursuant          to Article 109.
                  Where these requirements              include      the payment of a
                  remuneration       for the use referred              to in
                  paragraph      1, this remuneration            must he            sensibly
                  lower than the amount charged for the                          licensed
                  production       of propagating        material       of the same
                  variety.
                  The Member States          shall    include      in      their
                  legislation       measures penalizing            the flight          or
                  illegal     handling      of propagating         material        of the
                  variety     for which a Community plant                 variety         right
                  has been obtained,           except    for the cases           and
                  practices      set out in this              Article.
                                                                                                 (*
 ---pagebreak---                            ORIGINAL          PROPOSAL                                                                 AMENDED PROPOSAL
                                  Article         14                                                                       Article 14
                 Limitation          of    the    effects         of                                        Limitation         of the effects of
                Community         plant      variety         rights                                        Community plant           variety      rights
The rights        conferred         by a Community plant                       variety   The rights       conferred        by a Community plant                 variety
right     shall not extend               to:                                             right    shall not extend              to:
 (a)     acts relating          to products            that do not                        (a) acts relating          to products          that do not             constitute
         constitute       material        ;                                                    material     ;
 (b)    acts effected           privately          and for non-                           (b) acts effected          privately        and for          non-commercial
         commercial           purposes;                                                        purposes ;
 (c)    acts effected           for experimental                    purposes;             (c) acts effected          for experimental            purposes ;
 (d)    acts effected           for the purpose                of         discovering     (d) acts effected          for the purpose            of discovering          or
        or creating         new            varieties;                                          creating       new         varieties;
 (e)    without      prejudice          to the provisions                 of              (e)  without     prejudice         to the provieione           related       to
        Article      13 (3), acts effected                   for the          purpose          essentially derived              varieties       pursuant       to
        of using the new varieties                       discovered           or               Article     13 (2), acts effected              for the purpose           of
        created      pursuant         to subparagraph                (d),      unless          using the new varieties                discovered        or     created
             individuals          of the protected                variety        have          pursuant to subparagraph                 (d), unless             individuals
             to be used repeatedly                   for the            production             of the protected            variety      have to be used
             of the new variety                for        commercial                           repeatedly        for the production             of the new           variety
             purposes,         or                                                              for commercial          purpoaea,        or
             the new variety              or the material              of      this       (f)  acte whoee prohibition                would violate          the
             variety      comes under the protection                         of a              provisions        laid down in Article              13(3)    or     13a.
             property       right       which does not contain                    a
             comparable              provision:
 (f)    acts whose prohibition                   would violate               the
        provisions        laid down in Article                       13(4).
                                 Article         18                                                                        Article       18
      Duration       of Community plant                  variety           rights                Duration       of Community plant             variety        rights
     The term of the Community plant                          variety          right           The term of the Community plant                     variety        right
     shall    run until         the end of the 30th                       calender             shall    run until the end of the 20th                       calendar
     year,    or, in the case of varieties                         of vine and                 year,    or, in the case of varieties                    of vine and
     tree species,          until the end of the                      50th                     tree species,         until      the end of the 25th                calendar
     calendar      year,      following          the year of               grant.              year,    following        the year of           grant.
     A Community plant             variety         right      shall         lapse              Unchanged
     before     the expiry          of the terms laid down in
     paragraph       1 if the holder               surrenders          it by
     sending      a written         declaration            to such effect             to
     the Office,        and with effect                from the day
     following       the day on which the declaration                              is
     received      by the           Office.
 ---pagebreak---                                 ORIGINAL          PROPOSAL                                                                 AMENDED PROPOSAL
                                      Article        89                                                                           Article       89
                  Cumulative           protection                prohibited                                   Cumulative          protection               prohibited
      Varieties           that     are the subject             matter        of                   Plant      varieties          shall     not be patented.               This
      Community          plant      variety        rights       shall      not be                 prohibition           shall      be interpreted            in        accordance
     patented          nor be the subject                  of national             plant          with      the definition             of variety        laid      down    in
     variety         rights.        Any rights           granted       contrary         to        Article        5(2) of this            Regulation.        Nor        shall
      the     first       sentence         shall     be            ineffective.                   varieties          that     are the subject            matter of
                                                                                                  Community         plant       variety       rights     be the           subject
                                                                                                  matter       of any other            form     of national            plant
                                                                                                  variety       rights.        Any rights          granted       contrary       to
                                                                                                   this    paragraph          shall      be           ineffective.
     Where        the holder           has been        granted        another          right 2.       Unchanged
     ae     referred          to in paragraph              1 for      the     same
     variety         prior        to grant        of the Community                 plant
     variety         right,        he shall        be unable          to invoke        the
     rights         conferred          by such       protection          in        respect
     of     the variety            for as long           as the          Community
     plant        variety        right      remains               effective.
                                     Article        103                                                                          Article       103
                    Penalties          for    infringements            of                                       Penalties         for infringements               of
                    Community         plant      variety            rights                                      Community         plant      variety           rights
Member        States        shall      ensure       that    on 1 July         1992 at        Member     States      shall       ensure      that     on                       at
 the    latest        the same        provisions          are made               applicable   the latest       the same provisions                 are made applicable             to
 to penalize           infringements             of Community               plant            penalize      infringements              of Community plant                  variety
variety         rights       as apply         in the matter            of                    rights     as apply in the matter of infringements of
infringements              of corresponding               national               industrial  corresponding national                  industrial        property          rights.
property               rights.
                                     Article        112                                                                          Article       112
                           Transitional             provisions                                                        Transitional              provisions
The Office           shall       be established             in good time to                  The Office        shall      be established             in good time to
assume fully              the tasks         incumbent upon i t pursuant                      assume fully         the tasks incumbent upon i t pursuant to
to this         Regulation as from 1 July 1992.                                              this Regulation ae from                                     .
                                     Article       113                                                                           Article       113
                                 Entry info           force                                                                 Entry info           force
This Regulation shall                      enter into         force on                       This Regulation shall                 enter      into    force on
1 April         1991.
                                                                                             Articles      1, 2, 3, 5 to 28 and 48 to 102 shall                              apply
Articles          1, 2, 3, 5 to 28 and 48 to 102 shall                                       from
apply from 1 July 1992.
                                                                                             This Regulation shall                 be binding in its               entirety     and
This Regulation shall                     be binding in i t s                entirety        directly      applicable          in all      Member States.
and directly             applicable           in all      Member States.
                                                                                                                                                                                      Î
 ---pagebreak---  ---pagebreak---                                                                     ÏÇQA.V r.nr.i -s Ane
                                                             COM (93) 104 final
                                                     DOCUMENTS
EN                                                                           03 02
                               Catalogue number : CB-CO-93-126-EN-C
                                                            ISBN 92-77-53769-8
Office for Official PubKcations of the European Communities
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