The Marketing of Fruit Plant and Propagating Material (Scotland) Regulations 2017

Made: 30th May 2017

Laid before the Scottish Parliament: 1st June 2017

Coming into force: 1st July 2017

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and all other powers enabling them to do so.

PART 1 — Introduction

Citation, commencement and extent

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• (1) These Regulations may be cited as the Marketing of Fruit Plant and Propagating Material (Scotland) Regulations 2017 and come into force on 1st July 2017.

• (2) These Regulations extend to Scotland only.

Interpretation

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• (1) In these Regulations—

• “accompanying document” has the meaning given in regulation 9(3);

• “basic material” means propagating material which—is intended for the production of certified material;has been produced in a vegetative way from pre-basic material; andhas been officially certified as basic material;

• “body corporate” includes a limited liability partnership;

• “breeder's reference” means the reference allocated to a breeder following an application for plant variety rights;

• “CAC material” means Conformitas Agraria Communitatis material which—

• in relation to propagating material and fruit plants produced in Scotland, is material and plants that meet the requirements for CAC material in schedule 3; andin relation to propagating material and fruit plants produced—in any other part of the United Kingdom, is material and plants that meet the requirements of the relevant fruit marketing regulations;in a Crown Dependency or a country granted equivalence, is material and plants that meet the requirements in legislation recognised by the Scottish Ministers as having equivalent effect to schedule 3;

• “category”, in relation to plant material, means pre-basic material, basic material, certified material or CAC material;

• “certified material” means—propagating material which—is intended for the production of fruit plants;has been produced in a vegetative way from basic material or pre-basic material or, if intended to be used for the production of rootstocks, by certified seeds from basic or certified material of rootstocks; andhas been officially certified; orfruit plants which have been—produced directly from pre-basic material, basic material or certified material; andofficially certified;

• “Council Directive 2008/90/EC” means Council Directive 2008/90/EC on the marketing of fruit plant propagating material and fruit plants intended for fruit production , as last amended by Commission Implementing Decision (EU) 2019/120;

• “Commission Implementing Directive 2014/96/EU” means Commission Implementing Directive 2014/96/EU on the requirements for the labelling, sealing and packaging of fruit plant propagating material and fruit plants intended for fruit production, falling within the scope of Council Directive 2008/90/EC , as last amended by Commission Implementing Directive (EU) 2019/1813;

• “Commission Implementing Directive 2014/97/EU” means Commission Implementing Directive 2014/97/EU implementing Council Directive 2008/90/EC as regards the registration of suppliers and of varieties and the common list of varieties ;

• “Commission Implementing Directive 2014/98/EU” means Commission Implementing Directive 2014/98/EU implementing Council Directive 2008/90/EC as regards specific requirements for the genus and species of fruit plants referred to in Annex I thereto, specific requirements to be met by suppliers and detailed rules concerning official inspections , as last amended by Commission Implementing Directive (EU) 2020/177;

• “country granted equivalence” means a country that has been assessed by Scottish Ministers as producing plant material under conditions equivalent to those required by these Regulations;

• “Crown Dependency” means the Isle of Man or any of the Channel Islands;

• “Directive 2001/18/EC” means Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC , as last amended by Regulation (EU) 2019/1381;

• “the EU Plant Health Regulation” means Regulation (EU) 2016/2031 of the European Parliament of the Council on protective measures against pests of plants, amending Regulations (EU) No 228/2013, (EU) No 652/2014 and (EU) No 1143/2014 of the European Parliament and of the Council and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC, 2000/29/EC, 2006/91/EC and 2007/33/EC;

• “fruit plants” means plants of the genera and species listed in schedule 1 and their hybrids which are intended to be planted or replanted, after marketing;

• “the fruit marketing regulations” means—as regards England, the Marketing of Fruit Plant and Propagating Material (England) Regulations 2017;as regards Wales, the Marketing of Fruit Plant and Propagating Material (Wales) Regulations 2017; as regards Northern Ireland, the Marketing of Fruit Plant and Propagating Material Regulations (Northern Ireland) 2017; and “the relevant fruit marketing regulations”, in relation to any constituent part of the United Kingdom, means the fruit marketing regulations applicable in relation to that part;

• “genetically modified organism” has the meaning given in Article 2 of Directive 2001/18/EC;

• “the GMO regulations” means—in relation to Scotland, the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002;in relation to England, the Genetically Modified Organisms (Deliberate Release) Regulations 2002; in relation to Wales, the Genetically Modified Organisms (Deliberate Release) (Wales) Regulations 2002;in relation to Northern Ireland, the Genetically Modified Organisms (Deliberate Release) Regulations (Northern Ireland) 2003;

• “inspector” means a person appointed by the Scottish Ministers under regulation 18;

• “lot” means a number of units of a single commodity, identifiable by its homogeneity of composition and origin;

• “marketing” means the sale, holding with a view to sale, offer for sale or any disposal, supply or transfer aimed at commercial exploitation of propagating material or fruit plants to third parties whether or not for consideration;

• “official description” means the description of a variety provided on—registration in respect of a registered variety; orthe grant of plant variety rights;

• “official inspection” has the meaning given in paragraph 1 of schedule 2;

• “official label”—in the case of pre-basic material, basic material or certified material originating in Scotland, means a label issued or approved by the Scottish Ministers which has not previously been used and which meets the requirements of the relevant paragraphs of Part 1 of schedule 5; in the case of pre-basic material, basic material or certified material originating— in any other part of the United Kingdom, means a label issued or approved by the responsible official body and which meets the applicable requirements in relation to that material contained in the relevant fruit marketing regulations;in a Crown Dependency or a country granted equivalence, means a label issued or approved by the responsible official body and which meets the applicable requirements in relation to that material contained in legislation recognised by the Scottish Ministers as having equivalent effect to the relevant paragraphs of Part 1 of schedule 5;

• “officially certified”—in the case of plant material originating in Scotland, means certified by the Scottish Ministers in accordance with the relevant provisions of schedule 2; in the case of plant material originating— in any other part of the United Kingdom, means certified in accordance with the relevant fruit marketing regulations;in a Crown Dependency or a country granted equivalence, means certified in accordance with legislation recognised by the Scottish Ministers as having equivalent effect to the relevant provisions of schedule 2;

• “officially recognised description” means a description of the key morphological features that enable a variety ... to be identified;

• “plant material” means the plants and materials described in regulation 3(1);

• “plant variety rights” means rights granted under Part 1 of the Plant Varieties Act 1997 ... or domestic legislation in countries or territories, other than those forming part of the United Kingdom, that affords plant variety protection in accordance with UPOV;

• “pre-basic material” means propagating material which—has been produced, according to generally accepted methods, for the maintenance of the identity of the variety including the relevant pomological characteristics and for the prevention of diseases;is intended for the production of basic or certified material; andhas been officially certified as pre-basic material;

• “propagating material” means seeds, parts of plants and all plant material, including rootstocks, intended for the propagation and production of fruit plants;

• “registered variety” means a variety which is—registered in Scotland accordance with schedule 4; or in the case of varieties registered in any other part of the United Kingdom, means registered in accordance with the relevant fruit marketing regulations;

• “Regulation (EC) No 1829/2003” means Regulation (EC) No 1829/2003 of the European Parliament and of the Council on genetically modified food and feed , as last amended by Regulation (EU) 2019/1381;

• “responsible official body” means— in relation to plant material produced in Scotland, the Scottish Ministers;in relation to plant material produced in a country or territory outside Scotland, the body responsible for the quality of plant material in that country or territory;

• “RNQP” means a GB regulated non-quarantine pest within the meaning given in Article 36 (definition of Union regulated non-quarantine pests) of the EU Plant Health Regulation;

• “third country” means a country outside the United Kingdom;

• “supplier” means a person who is involved professionally in the reproduction, production, preservation, treatment, importation or marketing of plant material;

• “supplier's document” means a document that meets the requirements of Part 2 of schedule 5;

• “UPOV” means the International Union for the Protection of New Varieties of Plants, being an intergovernmental organisation established by the International Convention for the Protection of New Varieties of Plants;

• “variety” means a plant grouping within a single botanical taxon of the lowest known rank, which can be—defined by the expression of the characteristics resulting from a given genotype or combination of genotypes;distinguished from any other plant grouping by the expression of at least one of those characteristics; andconsidered as an entity in view of its ability to be propagated unchanged; and

• “working day” means a day which is not a Saturday, Sunday, a bank holiday in Scotland (as specified in section 1 and paragraph 2 of schedule 1 of the Banking and Financial Dealings Act 1971 ) or other public holiday.

• (2) Except in the context of accompanying documents, official labels and supplier's documents, any reference to writing in these Regulations includes an electronic communication within the meaning of section 15(1) (general interpretation) of the Electronic Communications Act 2000 .

• (3) Any other words or expressions used in these Regulations that are also used in Council Directive 2008/90/EC have the meaning they bear in that Directive.

Application of these Regulations

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• (1) Subject to paragraph (2) and regulation 4, these Regulations apply in relation to the marketing in Scotland of—

• (a) fruit plants and propagating material of the genera and species listed in schedule 1 and their hybrids; and

• (b) parts of plants, including rootstocks, of other genera or species or their hybrids, if material from fruit plants listed in schedule 1 (or any hybrid of such fruit plants) is, or is to be, grafted on to them.

• (2) These Regulations do not apply in relation to plant material intended for export from Scotland to a third country provided that the plant material is identified as such and kept sufficiently isolated.

Marketing of plant materials for trials etc.

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• (1) These Regulations do not apply to the marketing of plant material in Scotland which is intended for any of the purposes listed in paragraph (2), provided that the marketing is in accordance with an authorisation granted by an inspector.

• (2) The purposes referred to in paragraph (1) are—

• (a) trials or scientific purposes;

• (b) selection work; or

• (c) measures aimed at the conservation of genetic diversity.

• (3) The authorisation referred to in paragraph (1)—

• (a) must be in writing;

• (b) may be amended, suspended or revoked by an inspector by notice; and

• (c) may be subject to such conditions as the inspector considers necessary.

PART 2 — Marketing of plant material

General requirements for marketing of plant material

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• (1) No person may market plant material in Scotland unless—

• (a) in the case of propagating material, the plant material is—

• (i) pre-basic material;

• (ii) basic material;

• (iii) certified material; or

• (iv) CAC material;

• (b) in the case of fruit plants, the plant material is—

• (i) basic material;

• (ii) certified material; or

• (iii) CAC material;

• (c) in the case of plant material which consists of a genetically modified organism, the organism has been authorised for cultivation pursuant to—

• (i) the GMO regulations,

• (ii) Regulation (EC) No 1829/2003, or

• (iii) before the day on which IP completion day falls, Directive 2001/18/EC;

• (d) in the case of plant material the products of which are intended to be used as, or in, food within the scope of Article 3 of Regulation (EC) No 1829/2003, or as, or in, feed within the scope of Article 15 of that Regulation, the food or feed concerned has been authorised pursuant to that Regulation;

• (e) it is—

• (i) of a variety which may be marketed under regulation 7(1) and is marketed with a reference to that variety in accordance with the relevant requirements of regulation 7(2); or

• (ii) in the case of rootstocks which do not belong to a variety, marketed with a reference to the species or interspecific hybrid concerned;

• (f) it is marketed in a sufficiently homogenous lot;

• (g) subject to regulation 6(1), in the case of pre-basic material, basic material or certified material it is labelled, sealed and packaged in accordance with the relevant provisions of regulation 8 and schedule 5;

• (h) subject to regulation 6(1), in the case of CAC material, it is accompanied by a supplier's document; and

• (i) subject to regulation 6(3), the person is a supplier registered by the Scottish Ministers in accordance with regulation 10, or by another responsible official body, in relation to the plant material concerned.

• (2) The Scottish Ministers may... authorise the marketing of plant material from any country outside the United Kingdom if they are satisfied the plant material has been produced under conditions equivalent to the requirements for plant material in these Regulations.

• (3) No person may market plant material in Scotland produced in a member State.

• (4) Paragraph (3) does not apply to plant material which meets the conditions set out in paragraph (5).

• (5) The conditions are that the plant material—

• (a) is of a variety that may be marketed under regulation 7 or has been registered as a variety by the responsible official body in a member State, in accordance with Article 4 of Commission Implementing Directive 2014/97/EU; and