Preamble
Print this pageTHE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 235 thereof,
Having regard to the proposal from the Commission ( 1 ),
Having regard to the opinion of the European Parliament ( 2 ),
Having regard to the opinion of the European Parliament ( 3 ),
Whereas plant varieties pose specific problems as regards the industrial property régime which may be applicable;
Whereas industrial property regimes for plant varieties have not been harmonized at Community level and therefore continue to be regulated by the legislation of the Member States, the content of which is not uniform;
Whereas in such circumstances it is appropriate to create a Community regime which, although co-existing with national regimes, allows for the grant of industrial property rights valid throughout the Community;
Whereas it is appropriate that the implementation and application of this Community regime should not be carried out by the authorities of the Member States but by a Community Office with legal personality, the 'Community Plan Variety Office';
Whereas the system must also have regard to developments in plant breeding techniques including biotechnology; whereas in order to stimulate the breeding and development of new varieties, there should be improved protection compared with the present situation for all plant breeders without, however, unjustifiably impairing access to protection generally or in the case of certain breeding techniques;
Whereas varieties of all botanical genera and species should be protectable;
Whereas protectable varieties must comply with internationally recognized requirements, i.e. distinctness, uniformity, stability and novelty, and also be designated by a prescribed variety denomination;
Whereas it is important to provide for a definition of a plant variety, in order to ensure the proper functioning of the system;
Whereas this definition is not intended to alter definitions which may have been established in the field of intellectual property rights, especially the patent field, nor to interfere with or exclude from application laws governing the protectability of products, including plants and plant material, or processes under such other industrial property rights;
Whereas it is however highly desirable to have a common definition in both fields; whereas therefore appropriate efforts at international level should be supported to reach such a common definition;
Whereas for the grant of Community plant variety rights an assessment of important characteristics relating to the variety is necessary; whereas, however, these characteristics need not necessarily relate to their economic importance;
Whereas the system must also clarify to whom the right to Community plant variety protection pertains; whereas in some cases it would be to several persons in common, not just to one; whereas the formal entitlement to make applications must be regulated;
Whereas the system must also define the term 'holder' used in this Regulation; whereas that term 'holder' without further specification is used in this Regulation including in its Article 29 (5), it is intended to be within the meaning of Article 13 (1) thereof;
Whereas, since the effect of a Community plant variety right should be uniform throughout the Community, commercial transactions subject to the holder's agreement must be precisely delimited; whereas the scope of protection should be extended, compared with most national systems, to certain material of the variety to take account of trade via countries outside the Community without protection; whereas, however, the introduction of the principle of exhaustion of rights must ensure that the protection is not excessive;
Whereas in order to stimulate plant breeding, the system basically confirms the internationally accepted rule of free access to protected varieties for the development therefrom, and exploitation, of new varieties;
Whereas in certain cases where the new variety, although distinct, is essentially derived from the initial variety, a certain form of dependency from the holder of the latter one should be created;
Whereas, the exercise of Community plant variety rights must be subjected to restrictions laid down in provisions adopted in the public interest;
Whereas this includes safeguarding agricultural production; whereas that purpose requires an authorization for farmers to use the product of the harvest for propagation under certain conditions;
Whereas it must be ensured that the conditions are laid down at Community level;
Whereas compulsory licensing should also be provided for under certain circumstances in the public interest, which may include the need to supply the market with material offering specified features, or to maintain the incentive for continued breeding of improved varieties;
Whereas the use of prescribed variety denominations should be made obligatory;
Whereas the Community plant variety right should in principle have a life of at least 25 years and in the case of vine and tree species, at least 30 years; whereas other grounds for termination must be specified;
Whereas a Community plant variety right is an object of the holder's property and its role in relation to the non-harmonized legal provisions of the Member States, particularly of civil law, must therefore be clarified; whereas this applies also to the settlement of infringements and the enforcement of entitlement to Community plant variety rights;
Whereas, it is necessary to ensure that the full application of the principles of the Community plant variety rights system is not impaired by the effects of other systems; whereas for this purpose certain rules, in conformity with Member States' existing international commitments, are required concerning the relationship to other industrial property rights;
Whereas it is indispensable to examine whether and to what extent the conditions for the protection accorded in other industrial property systems, such as patents, should be adapted or otherwise modified for consistency with the Community plant variety rights system; whereas this, where necessary, should be laid down in balanced rules by additional Community law;
Whereas the duties and powers of the Community Plant Variety Office, including its Boards of Appeal, relating to the grant, termination or verification of Community plant variety rights and publications are as far as possible to be modelled on rules developed for other systems, as are also the Office's structure and Rules of Procedure, the collaboration with the Commission and Member States particularly through an Administrative Council, the involvement of Examination Offices in technical examination and moreover the necessary budgetary measures;
Whereas the Office should be advised and supervised by the aforementioned Administrative Council, composed of representatives of Member States and the Commission;
Whereas the Treaty does not provide, for the adoption of this Regulation, powers other than those of Article 235;
Whereas this Regulation takes into account existing international conventions such as the International Convention for the Protection of New Varieties of Plants (UPOV Convention), the Convention of the Grant of European Patents (European Patent Convention) or the Agreement on trade-related aspects of intellectual property rights, including trade in counterfeit goods; whereas it consequently implements the ban on patenting plant varieties only to the extent that the European Patent Convention so requires, i.e. to plant varieties as such;
Whereas this Regulation should be re-examined for amendment as necessary in the light of future developments in the aforementioned Conventions,
HAS ADOPTED THIS REGULATION:
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( 1 ) OJ No C 244, 28.9.1990, p. 1 and OJ No C 113, 23.4.1993, p. 7.
( 2 ) OJ No C 305, 23.11.1992, p. 55 and OJ No C 67, 16.3.1992, p. 148.
( 3 ) OJ No C 305, 23.11.1992, p. 55 and OJ No C 67, 16.3.1992, p. 148.
