Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14 (3) of Council Regulation (EC) No 2100/94 on Community plant variety rights

CHAPTER 1

GENERAL PROVISIONS

Article 1

Scope

Article 2

Safeguarding interests

CHAPTER 2

THE HOLDER AND THE FARMER

Article 3

The holder

A representative of the holder or of an organization of holders as well as an accredited auditor shall:

(a) be domiciled or shall have his seat or an establishment within the territory of the Community, and

(b) be authorized by the holder or the organization in writing, and

(c) provide evidence for the conditions laid down in (a) and (b), either through reference to relevant information published by holders or communicated by holders to organizations of farmers, or otherwise, and produce, on request, a copy of the written authorization referred to in (b), to any farmer against whom he invokes the rights.

Article 4

The farmer

CHAPTER 3

REMUNERATION

Article 5

Level of remuneration

If no licensed production of propagating material of the variety concerned has taken place in the area in which the holding of the farmer is located, and if there is no uniform level of the aforesaid amount throughout the Community, the level of remuneration shall be sensibly lower than the amount which is normally included, for the above purpose, in the price at which propagating material of the lowest category qualified for official certification, of that variety is sold in that area, provided that it is not higher than the aforesaid amount charged in the area in which that propagating material has been produced.

However, if a Member State has notified the Commission before 1 January 1999 of the imminent conclusion of an agreement as referred to in paragraph 4 between the relevant organisations established at national or regional level, the remuneration to be paid in the area and for the species concerned shall be 40 % instead of 50 % as specified above, but only in respect of the use of the agricultural exemption made prior to the implementation of such agreement and not later than 1 April 1999.

Article 6

Individual obligation to payment

The holder may determine the date and the manner of payment. However, he shall not determine a date of payment which is earlier than the date on which the obligation has come to existence.

Article 7

Small farmers

Without prejudice to the provisions laid down in Article 14 (3), third indent, first sub-indent of the Basic Regulation, small farmers in the case of other plant species (Article 14 (3), third indent, second sub-indent of the Basic Regulation) shall be considered to be farmers who

(a) in the case of fodder plants coming under that latter provision: irrespective of the area on which they grow plants other than those fodder plants, do not grow those fodder plants for a duration of not more than five years on an area bigger than the area which would be needed to produce 92 tonnes of cereals per harvest,

(b) in the case of potatoes: irrespective of the area on which they grow plants other than potatoes, do not grow potatoes on an area bigger than the area which would be needed to produce 185 tonnes of potatoes per harvest.

The calculation of the areas referred to in paragraphs 1, 2 and 3 shall be made, for the territory of each Member State,

— in the case of plant species to which Council Regulation (EEC) No 1765/92 (¹) applies, and in the case of fodder plants other than those already coming under the provisions thereof, in accordance with the provisions of that Regulation, and in particular Articles 3 and 4 thereof, or with provisions adopted pursuant to that Regulation, and

— in the case of potatoes, on the basis of the average yield per hectare established in the Member State concerned, in accordance with the statistical information delivered pursuant to Council Regulation (EEC) No 959/93 (²) concerning statistical information to be supplied by Member States on crop products other than cereals.

CHAPTER 4

INFORMATION

Article 8

Information by the farmer

Where such contract has not been concluded or does not apply, the farmer shall, without prejudice to information requirements under other Community legislation or under legislation of Member States, on request of the holder, be required to provide a statement of relevant information to the holder. The following items shall be considered to be relevant:

(a) the name of the farmer, the place of his domicile and the address of his holding,

(b) the fact whether the farmer has made use of the product of the harvest belonging to one or more varieties of the holder for planting in the field or fields of his holding,

(c) if the farmer has made such use, the amount of the product of the harvest belonging to the variety or varieties concerned, which has been used by the farmer in accordance with Article 14 (1) of the basic Regulation,

(d) under the same condition, the name and address of the person or pesons who have supplied a service of processing the relevant product of the harvest for him for planting,

(e) if the information obtained under (b), (c) or (d) cannot be confirmed in accordance with the provisions of Article 14, the amount of licensed propagating material of the varieties concerned used as well as the name and address of the supplier or suppliers thereof, and

(f) in the case of a farmer invoking the provisions of Article 116 (4) second indent of the Basic Regulation, whether he has already used the variety concerned for the purpose described in Article 14 (1) of the Basic Regulation without payment of a remuneration, and if so, since when.

However, the first marketing year to which the information refers, shall be not earlier than the one in which the first of such requests for information was made in respect of the variety or varieties and the farmer concerned, or, alternatively, in which the farmer acquired propagating material of the variety or varieties concerned, if this was accompanied by information at least on the filing of the application for the grant of a Community plant variety right or on the grant of such right as well as on possible conditions relating to the use of that propagating material.

In the case of varieties coming under the provisions of Article 116 of the Basic Regulation and in respect of farmers entitled to invoke the provisions of Article 116 (4), second indent of the basic Regulation, the first marketing year shall be 2001/02.

A request which has not been made directly to the farmer concerned, shall be considered to comply with the provisions of paragraph 4, third sentence, if it is sent to farmers through the following bodies or persons, with their prior agreement respectively:

— organizations of farmers or cooperatives, concerning all farmers who are members of such organization or cooperative, or,

— processors, concerning all farmers to whom they have supplied a service of processing the relevant product of the harvest for planting, in the current marketing year and in the three preceding marketing years, starting in the marketing year as specfied in paragraph 3, or,

— suppliers of licensed propagating material of varieties of the holder, concerning all farmers to whom they have supplied such propagating material in the current marketing year and in the three preceding marketing years, starting in the marketing year as specified in paragraph 3.

Article 9

Information by the processor

Where such contract has not been concluded or does not apply, the processor shall, without prejudice to information requirements under other Community legislation or under legislation of Member States, on request of the holder, be required to provide a statement of relevant information to the holder. The following items shall be considered to be relevant:

(a) the name of the processor, the place of his domicile and the name and address registered for his business;

(b) the fact whether the processor has supplied a service of processing the product of the harvest belonging to one or more varieties of the holder for planting, where the variety or varieties were declared or otherwise known to the processor;

(c) if the processor has supplied such service, the amount of the product of the harvest belonging to the variety or varieties concerned, which has been processed for planting, by the processor, and the total amount resulting from that processing;

(d) the dates and places of the processing referred to in (c); and

(e) the name and address of the person or persons to whom he has supplied the service of processing referred to in (c), and the respective amounts.

A request which has not been made directly to the processor concerned, shall be considered to comply with the provisions of Article 8 (4), third sentence, if it is sent to processors through the following bodies or persons, with their prior agreement respectively:

— organizations of processors in the Community which are established at Community, national, regional or local level, concerning all processors who are members of, or represented in, such organization,

— farmers, concerning all processors who have supplied a service of processing the relevant product of the harvest to them for planting, in the current marketing year and in the three preceding marketing years, starting in the marketing year as specified in paragraph 3.

Article 10

Information by the holder

Where such contract has not been concluded or does not apply, the holder shall, without prejudice to information requirements under other Community legislation or under legislation of Member States, on request of the farmer from whom the holder has claimed the payment of the remuneration referred to in Article 5, be required to provide a statement of relevant information to the farmer. The following items shall be considered to be relevant:

— the amount charged for the licensed production of propagating material of the lowest category qualified for official certification, of the same variety in the area in which the holding of the farmer is located, or,

— if no licensed production of propagating material of the variety concerned has taken place in the are a in which the holding of the farmer is located, and if there is no uniform level of the aforesaid amount throughout the Community, the amount which is normally included, for the above purpose, in the price at which propagating material of the lowest category qualified for official certification, of that variety is sold in that area, as well as the aforesaid amount charged in the area in which that propagating material has been produced.

Article 11

Information by official bodies

The official body may, without prejudice to the provisions of Article 12, withhold the requested information only, if

— it is not involved in the monitoring of agricultural production, or

— it is not allowed, under Community rules or rules of Member States governing the general discretion applicable in respect of activities of official bodies, to provide such information to holders, or

— it is under its discretion, pursuant to the Community legislation or the legislation of Member States under which the information has been collected, to withhold such information, or

— the requested information is not or no longer available, or

— such information cannot be obtained through ordinary performance of the tasks of the official body, or

— such information can only be obtained with additional burden or costs, or

— such information relates specifically to material which does not belong to varieties of the holder.

The official bodies concerned shall inform the Commission on the manner in which they exercise the discretion referred to in the third indent above.

Article 12

Protection of personal data

CHAPTER 5

OTHER OBLIGATIONS

Article 13

Obligations in the case of processing outside the holding of the farmer

Without prejudice to the restrictions which Member States may have established pursuant to Article 14 (3) second indent of the basic Regulation, the product of the harvest of a variety which is covered by a Community plant variety right shall not, without the prior consent of the holder, be moved from the holding on which it was obtained, for the purpose of being processed for planting, unless the farmer:

(a) has implemented appropriate measures to ensure identity of the product entered for processing with that resulting from processing; and

(b) makes sure that the actual processing is carried out by a processor for the supply of services of processing the product of the harvest for planting, who has: — either been registered under legislation of the Member State concerned adopted on the grounds of public interest, or has undertaken to the farmer to notify this activity, as far as varieties covered by a Community plant variety right are concerned, to the competent body established, designated or authorized in the Member State for that purpose, either by an official body or by an organization of holders, farmers or processors, for subsequent inclusion in a list established by the said competent body, and — has undertaken to the farmer to also implement appropriate measures to ensure identity of the product entered by the farmer for processing with that resulting from processing.

CHAPTER 6

MONITORING BY THE HOLDER

Article 14

Monitoring of farmers

For the purpose of monitoring, by the holder, compliance with the provisions of Article 14 of the basic Regulation as specified in this Regulation, as far as the fulfilment of obligations of the farmer is concerned, the farmer shall, on request of the holder:

(a) provide evidence supporting his statements of information under Article 8, through disclosure of available relevant documents such as invoices, used labels, or any other appropriate device such as that required pursuant Article 13 (1) (a), relating to: — the supply of services of processing the product of the harvest of a variety of the holder for planting, by any third person, or — in the case of Articles 8 (2) (e), the supply of propagating material of a variety of the holder, or through the demonstration of land or storage facilities.

(b) make available or accessible the proof required under Article 4 (3) or 7 (5).

Article 15

Monitoring of processors

Article 16

Manner of monitoring

CHAPTER 7

INFRINGEMENT AND SPECIAL CIVIL LAW CLAIMS

Article 17

Infringement

The holder may invoke the rights conferred by the Community plant variety right against a person who contravenes any of the conditions or limitations attached to the derogation pursuant to Article 14 of the basic Regulation as specified in this Regulation.

Article 18

Special civil law claims

CHAPTER 8

FINAL PROVISIONS

Article 19

Entry into force

This Regulation shall enter into force on the day of 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.