Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights

PART ONE

GENERAL PROVISIONS

Article 1

Community plant variety rights

A system of Community plant variety rights is hereby established as the sole and exclusive form of Community industrial property rights for plant varieties.

Article 2

Uniform effect of Community plant variety rights

Community plant variety rights shall have uniform effect within the territory of the Community and may not be granted, transferred or terminated in respect of the abovementioned territory otherwise than on a uniform basis.

Article 3

National property rights for plant varieties

This Regulation shall be without prejudice to the right of the Member States to grant national property rights for plant varieties, subject to the provisions of Article 92 (1).

Article 4

Community Office

For the purpose of the implementation of this Regulation a Community Plant Variety Office, hereinafter referred to as ‘the Office’, is hereby established.

PART TWO

SUBSTANTIVE LAW

CHAPTER I

CONDITIONS GOVERNING THE GRANT OF COMMUNITY PLANT VARIETY RIGHTS

Article 5

Object of Community plant variety rights

For the purpose of this Regulation, ‘variety’ shall be taken to mean a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:

— defined by the expression of the characteristics that results 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, and

— considered as a unit with regard to its suitability for being propagated unchanged.

Article 6

Protectable varieties

Community plant variety rights shall be granted for varieties that are:

(a) distinct;

(b) uniform;

(c) stable; and

(d) new.

Moreover, the variety must be designated by a denomination in accordance with the provisions of Article 63.

Article 7

Distinctness

The existence of another variety shall in particular be deemed to be a matter of common knowledge if on the date of application determined pursuant to Article 51:

(a) it was the object of a plant variety right or entered in an official register of plant varieties, in the Community or any State, or in any intergovernmental organization with relevant competence;

(b) an application for the granting of a plant variety right in its respect or for its entering in such an official register was filed, provided the application has led to the granting or entering in the meantime.

The implementing rules pursuant to Article 114 may specify further cases as examples which shall be deemed to be a matter of common knowledge.

Article 8

Uniformity

A variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics which are included in the examination for distinctness, as well as any others used for the variety description.

Article 9

Stability

A variety shall be deemed to be stable if the expression of the characteristics which are included in the examination for distinctness as well as any others used for the variety description, remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

Article 10

Novelty

A variety shall be deemed to be new if, at the date of application determined pursuant to Article 51, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder within the meaning of Article 11, for purposes of exploitation of the variety:

(a) earlier than one year before the abovementioned date, within the territory of the Community;

(b) earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the Community.

Likewise, the disposal of variety constituents by one company or firm within the meaning of the second paragraph of Article 58 of the Treaty to another of such companies or firms shall not be deemed to be a disposal to others, if one of them belongs entirely to the other or if both belong entirely to a third such company or firm, provided no further disposal is made. This provision shall not apply in respect of cooperative societies.

Likewise, no account shall be taken of any disposal to others, if it either was due to, or in consequence of the fact that breeder had displayed the variety at an official or officially recognized exhibition within the meaning of the Convention on International Exhibitions, or at an exhibition in a Member State which was officially recognized as equivalent by that Member State.

CHAPTER II

PERSONS ENTITLED

Article 11

Entitlement to Community plant variety rights

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.

CHAPTER III

EFFECTS OF COMMUNITY PLANT VARIETY RIGHTS

Article 13

Rights of the holder of a Community plant variety right and prohibited acts

Without prejudice to the provisions of Articles 15 and 16, the following acts in respect of variety constituents, or harvested material of the protected variety, both referred to hereinafter as ‘material’, shall require the authorization of the holder:

(a) production or reproduction (multiplication);

(b) conditioning for the purpose of propagation;

(c) offering for sale;

(d) selling or other marketing;

(e) exporting from the Community;

(f) importing to the Community;

(g) stocking for any of the purposes mentioned in (a) to (f).

The holder may make his authorization subject to conditions and limitations.

The provisions of paragraphs 1 to 4 shall also apply in relation to:

(a) varieties which are essentially derived from the variety in respect of which the Community plant variety right has been granted, where this variety is not itself an essentially derived variety;

(b) varieties which are not distinct in accordance with the provisions of Article 7 from the protected variety; and

(c) varieties whose production requires the repeated use of the protected variety.

For the purposes of paragraph 5 (a), a variety shall be deemed to be essentially derived from another variety, referred to hereinafter as ‘the initial variety’ when:

(a) it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety;

(b) it is distinct in accordance with the provisions of Article 7 from the initial variety; and

(c) except for the differences which result from the act of derivation, it conforms essentially to the initial variety in the expression of the characteristics that results from the genotype or combination of genotypes of the initial variety.

Article 14

Derogation from Community plant variety right

The provisions of paragraph 1 shall only apply to agricultural plant species of:

(a) Fodder plants: Cicer arietinum L. — Chickpea milkvetch Lupinus luteus L. — Yellow lupin Medicago sativa L. — Lucerne Pisum sativum L. (partim) — Field pea Trifolium alexandrinum L. — Berseem/Egyptian clover Trifolium resupinatum L. — Persian clover Vicia faba — Field bean Vicia sativa L. — Common vetch and, in the case of Portugal, Lolium multiflorum lam — Italian rye-grass

(b) Cereals: Avena sativa — Oats Hordeum vulgare L. — Barley Oryza sativa L. — Rice Phalaris canariensis L. — Canary grass Secale cereale L. — Rye X Triticosecale Wittm. — Triticale Triticium aestivum L. emend. Fiori et Paol. — Wheat Triticum durum Desf. — Durum wheat Triticum spelta L. — Spelt wheat

(c) Potatoes: Solanum tuberosum — Potatoes

(d) Oil and fibre plants: Brassica napus L. (partim) — Swede rape Brassica rapa L. (partim) — Turnip rape Linum usitatissimum — linseed with the exclusion of flax.

Conditions to give effect to the derogation provided for in paragraph 1 and to safeguard the legitimate interests of the breeder and of the farmer, shall be established, before the entry into force of this Regulation, in implementing rules pursuant to Article 114, on the basis of the following criteria:

— there shall be no quantitative restriction of the level of the farmer's holding to the extent necessary for the requirements of the holding,

— the product of the harvest may be processed for planting, either by the farmer himself or through services supplied to him, without prejudice to certain restrictions which Member States may establish regarding the organization of the processing of the said product of the harvest, in particular in order to ensure identity of the product entered for processing with that resulting from processing,

— small farmers shall not be required to pay any remuneration to the holder; small farmers shall be considered to be: — in the case of those of the plant species referred to in paragraph 2 of this Article to which Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops (⁴) applies, farmers who do not grow plants on an area bigger than the area which would be needed to produce 92 tonnes of cereals; for the calculation of the area, Article 8 (2) of the aforesaid Regulation shall apply, — in the case of other plant species referred to in paragraph 2 of this Article, farmers who meet comparable appropriate criteria,

— other farmers shall be required to pay an equitable remuneration to the holder, which shall be sensibly lower than the amount charged for the licensed production of propagating material of the same variety in the same area; the actual level of this equitable remuneration may be subject to variation over time, taking into account the extent to which use will be made of the derogation provided for in paragraph 1 in respect of the variety concerned,

— monitoring compliance with the provisions of this Article or the provisions adopted pursuant to this Article shall be a matter of exclusive responsibility of holders; in organizing that monitoring, they may not provide for assistance from official bodies,

— relevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services; relevant information may equally be provided by official bodies involved in the monitoring of agricultural production, if such information has been obtained through ordinary performance of their tasks, without additional burden or costs. These provisions are without prejudice, in respect of personal data, to Community and national legislation on the protection of individuals with regard to the processing and free movement of personal data.

Article 15

Limitation of the effects of Community plant variety rights

Limitation of the effects of Community plant variety rights

(a) acts done privately and for non-commercial purposes;

(b) acts done for experimental purposes;

(c) acts done for the purpose of breeding, or discovering and developing other varieties;

(d) acts referred to in Article 13 (2) to (4), in respect of such other varieties, except where the provisions of Article 13 (5) apply, or where the other variety or the material of this variety comes under the protection of a property right which does not contain a comparable provision; and

(e) acts whose prohibition would violate the provisions laid down in Articles 13 (8), 14 or 29.

Article 16

Exhaustion of Community plant variety rights

The Community plant variety right shall not extend to acts concerning any material of the protected variety, or of a variety covered by the provisions of Article 13 (5), which has been disposed of to others by the holder or with his consent, in any part of the Community, or any material derived from the said material, unless such acts:

(a) involve further propagation of the variety in question, except where such propagation was intended when the material was disposed of; or

(b) involve an export of variety constituents into a third country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported materials is for final consumption purposes.

Article 17

Use of variety denominations

Article 18

Limitation of the use of variety denominations

CHAPTER IV

DURATION AND TERMINATION OF COMMUNITY PLANT VARIETY RIGHTS

Article 19

Duration of Community plant variety rights

Article 20

Nullity of Community plant variety rights

The Office shall declare the Community plant variety right null and void if it is established:

(a) that the conditions laid down in Articles 7 or 10 were not complied with at the time of the Community plant variety right; or

(b) that where the grant of the Community plant variety right has been essentially based upon information and documents furnished by the applicant, the conditions laid down in Articles 8 and 9 were not complied with at the time of the grant of the right; or

(c) that the right has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled.

Article 21

Cancellation of Community plant variety rights

The Office may cancel a Community plant variety right with effect in futurum if the holder, after being requested to do so, and within a time limit specified by the Office:

(a) has not fulfilled an obligation pursuant to Article 64 (3); or

(b) in the case referred to in Article 66, does not propose another suitable variety denomination; or

(c) fails to pay such fees as may be payable to keep the Community plant variety right in force; or

(d) either as the initial holder or as a successor in title as a result of a transfer pursuant to Article 23, no longer satisfies the conditions laid down in Articles 12 and 82.

CHAPTER V

COMMUNITY PLANT VARIETY RIGHTS AS OBJECTS OF PROPERTY

Article 22

Assimilation with national laws

Save where otherwise provided in Articles 23 to 29, a Community plant variety right as an object of property shall be regarded in all respects, and for the entire territory of the Community, as a corresponding property right in the Member State in which:

(a) according to the entry in the Register of Community Plant Variety Rights, the holder was domiciled or had his seat or an establishment on the relevant date; or

(b) if the conditions laid down in subparagraph (a) are not fulfilled, the first-mentioned procedural representative of the holder, as indicated in the said Register, was domiciled or had his seat or an establishment on the date of registration.

Article 23

Transfer

Article 24

Levy of execution

A Community plant variety right may be levied in execution and be the subject of provisional, including protective, measures within the meaning of Article 24 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Lugano on 16 September 1988, hereinafter referred to as the ‘Lugano Convention’.

Article 25

Bankruptcy or like proceedings

Until such time as common rules for the Member States in this field enter into force, the only Member State in which a Community plant variety right may be involved in bankruptcy or like proceedings shall be that in which such proceedings are first brought within the meaning of national law or of conventions applicable in this field.

Article 26

The application for a Community plant variety right as an object of property

Articles 22 to 25 shall apply to applications for Community plant variety rights. Concerning such applications, the references made in those Articles to the Register of Community Plant Variety Rights shall be regarded as references to the Register of Application for Community Plant Variety Rights.

Article 27

Contractual exploitation rights

Article 28

Joint holdership

Articles 22 to 27 shall apply mutatis mutandis in the event of joint holdership of a Community plant variety right in proportion to the respective share held, where such shares have been determined.

Article 29

Compulsory licensing

On application, a compulsory licence for the non-exclusive use of a protected plant variety pursuant to Article 12(2) of Directive 98/44/EC shall be granted to the holder of a patent for a biotechnological invention, subject to payment of an appropriate royalty as equitable remuneration, provided that the patent holder demonstrates that:

(i) he/she has applied unsuccessfully to the holder of the plant variety right to obtain a contractual licence; and

(ii) the invention constitutes significant technical progress of considerable economic interest compared with the protected plant variety.

Where, in order to enable him/her to acquire or exploit his/her plant variety right, a holder has been granted a compulsory licence in accordance with Article 12(1) of Directive 98/44/EC for the non-exclusive use of a patented invention, a non-exclusive cross-licence on reasonable terms to exploit the variety shall be granted, on application, to the holder of the patent for that invention,

The territorial scope of the licence or cross-licence referred to in this paragraph shall be limited to the part or parts of the Community covered by the patent.

PART THREE

THE COMMUNITY PLANT VARIETY OFFICE

CHAPTER I

GENERAL PROVISIONS

Article 30

Legal status, sub-offices

Article 31

Staff

Article 32

Privileges and immunities

The Protocol on the Privileges and Immunities of the European Communities shall apply to the Office.

Article 33

Liability

Article 33a

Access to documents

Article 34

Languages

Article 35

Decisions of the Office

CHAPTER II

THE ADMINISTRATIVE COUNCIL

Article 36

Creation and powers

An Administrative Council is hereby set up, attached to the Office. In addition to the powers assigned to the Administrative Council by other provisions of this Regulation, or by the provisions referred to in Articles 113 and 114, it shall have the powers in relation to the Office defined below:

(a) It shall advise on matters for which the Office is responsible, or issue general guidelines in this respect.

(b) It shall examine the management report of the President, and shall moreover monitor the Office's activities, on the basis of that examination and any other information obtained.

(c) It shall, on a proposal from the Office, either determine the number of Committees referred to in Article 35, the work allocation and the duration of their respective function, or issue general guidelines in this respect.

(d) It may establish rules on working methods of the Office.