By Micaela Filippo.- This year marks the 30th anniversary of the Council Regulation (EC) No 2100/94, better known as the “Basic Regulation,” a cornerstone of plant variety protection in the European Union (EU). Since its adoption in 1994, the Basic Regulation has played a crucial role in safeguarding plant breeders' rights, encouraging innovation in plant breeding, and ensuring that new plant varieties can be developed and brought to market for the benefit of agriculture, horticulture, and consumers across Europe.
However, current challenges and the latest “less-than-ideal" developments have raised questions about the current system and the future of Community Plant Variety Rights (CPVR).
An Overview
The Basic Regulation lays down the legal framework for the CPVR. It establishes a system of protection of new plant varieties in the EU (Regional System), granting breeders exclusive rights over their new plant varieties for a limited period, usually 25 to 30 years, depending on the crop.
The CPVO, located in Angers, France, has been responsible for implementing the Basic Regulation since its creation in 1995 (and thus, another 30th anniversary coming next year).
A key achievement of the Basic Regulation was harmonizing plant variety protection among EU Member States through the creation of a regional system, streamlining the application process for breeders, and strengthening protection across the EU.
The CPVO also plays a key role internationally; it engages with other PBR Offices worldwide, facilitating the exchange of information and helping develop other PBR systems.
Key Developments in these three decades
Over the past 30 years, much has changed. The CPVO has demonstrated a solid commitment to innovation in the green sector. They have consistently been open to engaging with breeders and understanding their challenges. This commitment has often translated into concrete initiatives that benefit the sector and society at large. For example, the Basic Regulation extends protection beyond the minimum duration set by the UPOV 1991 Convention, offering up to 30 years of protection for trees, vines, potatoes, flower bulbs, and woody plants (being the extension of these three last species very recent, in 2021). This extended protection fosters further innovation by providing plant breeders with a more sustainable system.
However, not all developments have been positive. One of the most troubling events in recent years was the so-called Nadorcott Decision of the European Court of Justice. The outcome of Case C-176/18 has been highly detrimental to titleholders, raising concerns about the overall strength of the system. In summary, the decision favoured a grower who had planted trees of the Mandarin variety Nadorcott (hence the name “Nadorcott Decision”) during the provisional protection period, despite not having authorization from the then PBR applicant (i.e., the breeder). The ruling allowed the grower to freely exploit the harvested material even after the CPVR was granted.
In addition to the Nadorcott Decision, several other issues continue to pose significant challenges for breeders and innovators. One major concern is the high fees associated with applying for CPVRs, particularly the costs of DUS examinations. These fees impose a substantial burden on breeders, especially in the wake of the global economic crisis. As a result, the number of applications has declined, particularly in the ornamental sector, which struggles to cope with these high costs. The impact of Brexit, while not attributable to the EU, has further added administrative and economic burdens on European companies, particularly SMEs.
Another ongoing challenge is the coexistence of both legal and “botanical” approaches within the same system, which often negatively impacts innovation. Increasingly, very similar varieties are being granted protection despite the clear legal framework established by the Basic Regulation. CIOPORA has been advocating for a fair and transparent position on Distinctness and Minimum Distance, but this effort continues to face resistance from certain DUS Examination Offices.
The future of CPVRs
As we reflect on the 30 years of the Basic Regulation, we can agree that it is one of the best PBR systems globally. However, past developments have also shown that many challenges remain that must be addressed to ensure its continued success.
Looking ahead, it is clear that adapting to technological advancements (such as gene editing, New Breeding Techniques, etc) and addressing economic challenges must be key priorities. Strengthening international collaboration (e.g., by accepting takeover reports from other Examination Offices outside the EU) and resolving inconsistencies in the application of legal and botanical approaches will be crucial in maintaining the system's integrity and fostering true innovation.
In conclusion, the CPVR system should not only protect breeders’ rights but also drive sustainable horticultural innovation. The next 30 years present an opportunity to build on past successes while addressing emerging challenges to ensure that the CPVR system remains the most suitable tool for the protection of innovation in the green sector – and this is something that we still need to see.
What remains clear is that CIOPORA will continue to advocate for the rights of plant breeders by collaborating with the CPVO, EU agencies, and any other EU-based organizations.
We look forward to shaping the future together!
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