Council Regulation (EC) No 2100/94Show full title

PART TWO U.K. SUBSTANTIVE LAW

CHAPTER I U.K. CONDITIONS GOVERNING THE GRANT OF COMMUNITY PLANT VARIETY RIGHTS

Article 5 U.K. Object of Community plant variety rights

1. Varieties of all botanical genera and species, including, inter alia, hybrids between genera or species, may form the object of Community plant variety rights.

2. 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.

3. A plant grouping consists of entire plants or parts of plants as far as such parts are capable of producing entire plants, both referred to hereinafter as ‘variety constituents’.

4. The expression of the characteristics referred to in paragraph 2, first indent, may be either invariable or variable between variety constituents of the same kind provided that also the level of variation results from the genotype or combination of genotypes.

Article 6 U.K. 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 U.K. Distinctness

1. A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application determined pursuant to Article 51.

2. 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 U.K. 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 U.K. 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 U.K. Novelty

1. 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.

2. The disposal of variety constituents to an official body for statutory purposes, or to others on the basis of a contractual or other legal relationship solely for production, reproduction, multiplication, conditioning or storage, shall not be deemed to be a disposal to others within the meaning of paragraph 1, provided that the breeder preserves the exclusive right of disposal of these and other variety constituents, and no further disposal is made. However, such disposal of variety constituents shall be deemed to be a disposal in terms of paragraph 1 if these constituents are repeatedly used in the production of a hybrid variety and if there is disposal of variety constituents or harvested material of the hybrid variety.

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.

3. The disposal of variety constituents or harvested material of the variety, which have been produced from plants grown for the purposes specified in Article 15 (b) and (c) and which are not used for further reproduction or multiplication, shall not be deemed to be exploitation of the variety, unless reference is made to the variety for purposes of that disposal.

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 U.K. PERSONS ENTITLED

Article 11 U.K. Entitlement to Community plant variety rights

1. The person who bred, or discovered and developed the variety, or his successor in title, both — the person and his successor — referred to hereinafter as ‘the breeder’, shall be entitled to the Community plant variety right.

2. If two or more persons bred, or discovered and developed the variety jointly, entitlement shall be vested jointly in them or their respective successors in title. This provision shall also apply to two or more persons in cases where one or more of them discovered the variety and the other or the others developed it.

3. Entitlement shall also be invested jointly in the breeder and any other person or persons, if the breeder and the other person or persons have agreed to joint entitlement by written declaration.

4. If the breeder is an employee, the entitlement to the Community plant variety right shall be determined in accordance with the national law applicable to the employment relationship in the context of which the variety was bred, or discovered and developed.

5. Where entitlement to a Community plant variety right is vested jointly in two or more persons pursuant to paragraphs 2 to 4, one or more of them may empower the others by written declaration to such effect to claim entitlement thereto.

[F1 Article 12 U.K. 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.]

Textual Amendments

F1 Substituted by Council Regulation (EC) No 15/2008 of 20 December 2007 amending Regulation (EC) No 2100/94 as regards the entitlement to file an application for a Community plant variety right.

CHAPTER III U.K. EFFECTS OF COMMUNITY PLANT VARIETY RIGHTS

Article 13 U.K. Rights of the holder of a Community plant variety right and prohibited acts

1. A Community plant variety right shall have the 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.

2. 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.

3. The provisions of paragraph 2 shall apply in respect of harvested material only if this was obtained through the unauthorized use of variety constituents of the protected variety, and unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents.

4. In the implementing rules pursuant to Article 114, it may be provided that in specific cases the provisions of paragraph 2 of this Article shall also apply in respect of products obtained directly from material of the protected variety. They may apply only if such products were obtained through the unauthorized use of material of the protected variety, and unless the holder has had reasonable opportunity to exercise his right in relation to the said material. To the extent that the provisions of paragraph 2 apply to products directly obtained, they shall also be considered to be ‘material’.

5. 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.

6. 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.

7. The implementing rules pursuant to Article 114 may specify possible acts of derivation which come at least under the provisions of paragraph 6.

8. Without prejudice to Article 14 and 29, the exercise of the rights conferred by Community plant variety rights may not violate any provisions adopted on the grounds of public morality, public policy or public security, the protection of health and life of humans, animals or plants, the protection of the environment, the protection of industrial or commercial property, or the safeguarding of competition, of trade or of agricultural production.

Article 14 U.K. Derogation from Community plant variety right

1. Notwithstanding Article 13 (2), and for the purposes of safeguarding agricultural production, farmers are authorized to use for propagating purposes in the field, on their own holding the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety other than a hybrid or synthetic variety, which is covered by a Community plant variety right.

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

(a) Fodder plants:

• (a) 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:

• (b) 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:

• (c) Solanum tuberosum — Potatoes

(d) Oil and fibre plants:

• (d) Brassica napus L. (partim) — Swede rape

• Brassica rapa L. (partim) — Turnip rape

• Linum usitatissimum — linseed with the exclusion of flax.

3. 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(1) 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 U.K. 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 U.K. 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 U.K. Use of variety denominations

1. Any person who, within the territory of the Community, offers or disposes of to others for commercial purposes variety constituents of a protected variety, or a variety covered by the provisions of Article 13 (5), must use the variety denomination designated pursuant to Article 63; where it is used in writing, the variety denomination shall be readily distinguishable and clearly legible. If a trade mark, trade name or similar indication is associated with the designated denomination, this denomination must be easily recognizable as such.

2. Any person effecting such acts in respect of any other material of the variety, must inform of that denomination in accordance with other provisions in law or if a request is made by an authority, by the purchaser or by any other person having a legitimate interest.

3. Paragraphs 1 and 2 shall apply even after the termination of the Community plant variety right.

Article 18 U.K. Limitation of the use of variety denominations

1. The holder may not use any right granted in respect of a designation that is identical with the variety denomination to hamper the free use of that denomination in connection with the variety, even after the termination of the Community plant variety right.

2. A third party may use a right granted in respect of a designation that is identical wih the variety denomination to hamper the free use of that denomination only if that right was granted before the variety denomination was designated pursuant to Article 63.

3. Where a variety is protected by a Community plant variety right or, in a Member State or in a Member of the International Union for the Protection of New Varieties of Plants by a national property right, neither its designated denomination or any designation which might be confused with it can be used, within the territory of the Community, in connection with another variety of the same botanical species or a species regarded as related pursuant to the publication made in accordance with Article 63 (5), or for material of such variety.

CHAPTER IV U.K. DURATION AND TERMINATION OF COMMUNITY PLANT VARIETY RIGHTS

Article 19 U.K. Duration of Community plant variety rights

1. The term of the Community plant variety right shall 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.

2. The Council, acting by qualified majority on proposal from the Commission, may, in respect of specific genera or species, provide for an extension of these terms up to a further five years.

3. A Community plant variety right shall lapse before the expiry of the terms laid down in paragraph 1 or pursuant to paragraph 2, 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.

Article 20 U.K. Nullity of Community plant variety rights

1. 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.

2. Where the Community plant variety right is declared null and void, it shall be deemed not to have had, as from the outset, the effects specified in this Regulation.

Article 21 U.K. Cancellation of Community plant variety rights

1. The Office shall cancel the Community plant variety right with effect in futurum if it is established that the conditions laid down in Article 8 or 9 are no longer complied with. If it is established that these conditions were already no longer complied with from a point in time prior to cancellation, cancellation may be made effective as from that juncture.

2. 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 U.K. COMMUNITY PLANT VARIETY RIGHTS AS OBJECTS OF PROPERTY

Article 22 U.K. Assimilation with national laws

1. 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.

2. Where the conditions laid down in paragraph 1 are not fulfilled, the Member State referred to in paragraph 1 shall be the Member State in which the seat of the Office is located.

3. Where domiciles, seats or establishments in two or more Member States are entered in respect of the holder or the procedural representatives in the Register referred to in paragraph 1, the first-mentioned domicile or seat shall apply for the purposes of paragraph 1.

4. Where two or more persons are entered in the Register referred to in paragraph 1 as joint holders, the relevant holder for the purposes of applying paragraph 1 (a) shall be the first joint holder taken in order of entry in the Register who fulfils the conditions. Where none of the joint holders fulfils the conditions laid down in paragraph 1 (a), paragraph 2 shall be applicable.

Article 23 U.K. Transfer

1. A Community plant variety right may be the object of a transfer to one or more successors in title.

2. Transfer of a Community plant variety right by assignment can be made only to successors who comply with the conditions laid down in Article 12 and 82. It shall be made in writing and shall require the signature of the parties to the contract, except when it is a result of a judgement or of any other acts terminating court proceedings. Otherwise it shall be void.

3. Save as otherwise provided in Article 100, a transfer shall have no bearing on the rights acquired by third parties before the date of transfer.

4. A transfer shall not take effect for the Office and may not be cited vis-à-vis third parties unless documentary evidence thereof as provided for in the implementing rules is provided and until it has been entered in the Register of Community Plant Variety Rights. A transfer that has not yet been entered in the Register may, however, be cited vis-à-vis third parties who have acquired rights after the date of transfer but who knew of the transfer at the date on which they acquired those rights.

Article 24 U.K. 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 U.K. 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 U.K. 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 U.K. Contractual exploitation rights

1. Community plant variety rights may form in full or in part the subject of contractually granted exploitation rights. Exploitation rights may be exclusive or non-exclusive.

2. The holder may invoke the rights conferred by the Community plant variety right against a person enjoying the right of exploitation who contravenes any of the conditions or limitations attached to his exploitation right pursuant to paragraph 1.

Article 28 U.K. 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.

[F2 Article 29 U.K. Compulsory licensing

1. Compulsory licences shall be granted to one or more persons by the Office, on application by that person or those persons, but only on grounds of public interest and after consulting the Administrative Council referred to in Article 36.

2. On application by a Member State, by the Commission or by an organisation set up at Community level and registered by the Commission, a compulsory licence may be granted, either to a category of persons satisfying specific requirements, or to anyone in one or more Member States or throughout the Community. It may be granted only on grounds of public interest and with the approval of the Administrative Council.

3. The Office shall, when granting the compulsory licence pursuant to paragraphs 1, 2, 5 or 5a, stipulate the type of acts covered and specify the reasonable conditions pertaining thereto as well as the specific requirements referred to in paragraph 2. The reasonable conditions shall take into account the interests of any holder of plant variety rights who would be affected by the grant of the compulsory licence. The reasonable conditions may include a possible time limitation, the payment of an appropriate royalty as equitable remuneration to the holder and may impose certain obligations on the holder, the fulfilment of which are necessary to make use of the compulsory licence.

4. On the expiry of each one-year period after the grant of the compulsory licence pursuant to paragraphs 1, 2, 5 or 5a, and within the possible time limitation set out in paragraph 3, any of the parties to proceedings may request that the decision on the grant of the compulsory licence be cancelled or amended. The sole grounds for such a request shall be that the circumstances determining the decision taken have in the meantime undergone change.

5. On application, a compulsory licence shall be granted to the holder in respect of an essentially derived variety if the criteria set out in paragraph 1 are met. The reasonable conditions referred to in paragraph 3 shall include the payment of an appropriate royalty as equitable remuneration to the holder of the initial variety.

5a. 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.

6. The implementing rules pursuant to Article 114 may specify certain other examples of licences in the public interest referred to in paragraphs 1, 2 and 5a, and moreover lay down details for the implementation of paragraphs 1 to 5a.

7. Compulsory licences may not be granted by Member States in respect of a Community plant variety right.]

Textual Amendments

F2 Substituted by Council Regulation (EC) No 873/2004 of 29 April 2004 amending Regulation (EC) No 2100/94 on Community plant variety rights.

(1)

OJ No L 181, 1.7.1992, p. 12. Regulation as last amended by Regulation (EEC) No 1552/93 (OJ No L 154, 25.6.1993, p. 19).