Udo von Kröcher 1 Enforcement of Plant Variety Rights in the Agricultural Sector in Germany Udo von Kröcher Bundessortenamt (Federal Plant Variety Office) Workshop on Enforcement of Plant Variety Rights Tallin, Estonia, 4 March 2008

Udo von Kröcher 2 Existing Plant Breeders‘ Rights under the German Plant Variety Protection Law Species Number of protected varieties Agricultural species including grapes Vegetables Fruits Ornamentals

Udo von Kröcher 3 Legal Basis UPOV Convention, Act of 1991 Art. 14 (1) Protected varieties may only be produced or reproduced, processed, offered for sale, marketed etc. with the authorisation of the breeder. The breeder may make his authorisation subject to conditions and limitations. Art. 15 (2) - Optional exemption from the breeder’s right - Contracting parties of the Convention are allowed, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, to exempt farm saved seed from the effect of plant breeders’ rights („farmer’s privilege to use Farm Saved Seed (FSS) without the right holder’s authorisation”).

Udo von Kröcher 4 Council Regulation (EC) No 2100/94 Art. 13 (1, 2) Protected varieties may only be produced or reproduced, processed, offered for sale, marketed etc. with the authorisation of the breeder. The breeder may make his authorisation subject to conditions and limitations. Art. 14 (1) Farmers are authorised to use for propagating purposes in the field (on their own holding) the product of the harvest which they have obtained by planting (except hybrids and synthetic varieties). Art. 14 (2) Restricted to 22 agricultural plant species (Fodder plants, Cereals, Potatoes, Oil and Fibre Plants), which are named in the law.

Udo von Kröcher 5 Council Regulation (EC) No 2100/94 Art. 14 (3) Following conditions have to be obeyed - No quantitative restriction in the use of FSS - Possibility for processing the FSS - Small farmers are not charged by a fee for FSS used - Equitable remuneration which is sensibly lower than licence for CS - Monitoring by holder (breeder) - Relevant information has to be provided by farmers and processors The said criteria are implemented by Community Regulation (EC) No 1768/95.

Udo von Kröcher 6 German Plant Variety Protection Law Art. 10 (1) Protected varieties may only be produced or reproduced, processed, offered for sale, marketed etc. with the authorisation of the breeder. The breeder may make his authorisation subject to conditions and limitations. Art. 10a (2) - Farmers are authorised to use for propagating purposes in the field (on their own holding) the product of the harvest which they have obtained by planting (except hybrids and synthetic varieties) („farmer’s privilege”). - Restricted to 18 agricultural plant species (Fodder plants, Cereals, Potatoes, Oil and Fibre Plants), laid down in an Annex to the Law. Art. 10a (3) Equitable remuneration for FSS used which is sensibly lower than licence for CS.

Udo von Kröcher 7 German Plant Variety Protection Law Art. 10a (4) - Possibility of agreements between owners of variety rights and farmers as regards the equitable nature of remuneration. - Agreements may be also signed between the professional organisations of breeders and farmers. Art. 10a (5) Small farmers are not obliged to pay for FSS (threshold = 92 tons of harvested cereals/farm). Art. 10a (6) Information about the amount of FSS used has to be provided by farmers and processors.

Udo von Kröcher 8 Based on these community and national legal regulations the breeder is entitled to charge the farmer with fees/royalties - for the use of certified seeds and - for the use of Farm Saved Seed (FSS)

Udo von Kröcher 9 Only a suitable legal basis which enables the breeder to protect and safeguard his intellectual property rights will initiate further breeding progress for the benefit of the farmer. But: Enforcing their rights is in the responsibility of the breeders and breeders’ organisations because the Plant Protection Law is Private Law!

Udo von Kröcher 10 How are the described private law based regulations implemented and used by the breeders in practice in order to generate income for the refinancing of the expensive breeding of new varieties?

Udo von Kröcher 11 Royalties for certified seeds are part of the price for all certified seeds of all agricultural species purchased by the farmer, collected by the seed trader and transferred to the breeder. This system is well-established for both, varieties protected under national law and protected on the basis of Council regulation (EC) No 2100/94.

Udo von Kröcher 12 Concerning the remuneration payment (fees) for the use of FSS the German farmers have 3 options which are mainly based - on the Council Regulation (EC) No 1768/95 - the (rather general) provisions of Article 10a of the German Plant Variety Protection Law and - court case decisions

Udo von Kröcher 13 Option 1: Individual contract between the breeder and the farmer with a free arrangement concerning the level of fees Option 2: No contract between breeder and farmer but direct application of the provisions of Council Regulation (EC) No 1768/95 in conjunction with Article 10a of the German Law - the fee for the use of FSS shall be equitable and sensibly lower than the fee for certified seed (at least 50 % lower)

Udo von Kröcher 14 FSS remuneration fee to be paid by the farmer Change of Certified Seed FSS remuneration fee in % of royalty for Certified seed In % Cereals without Hybrid rye Pulses Potatoes testedNot tested 80, , , , , Option 3: So-called „Framework Agreement“ between the German Farmers‘ Association and the German Breeders‘ Association (2002)“ Managed by the „Saatgut-Treuhandgesellschaft (STV)“ working on behalf of the breeders.

Udo von Kröcher 15 The relevance of the use of FSS in Germany To how many varieties of which species does the question of fees for the use of FSS refer to? nationally registerednationally protected Varieties (2007) Cereals Potatoes Pulses (Field Beans, Peas, Lupins) 42 28

Udo von Kröcher 16 Acreage and the use of FSS of cereals and potatoes in Germany (2005/2006) SpeciesAcreage (ha)FSS use in % Acreage with FSS use (ha) Cerealsca ca. 50ca Potatoesca ca. 50ca

Udo von Kröcher 17 Potential total income by collecting the FSS fees: ca. 18 to 19 Mio. €/year Average FSS fee: ca. 100 €/year/farm Present total income by collecting the FSS fees: ca. 4 Mio. €/year

Udo von Kröcher 18 Increasing readiness of farmers to go to court mainly in order to appeal against the requirement to provide informations Several Court Cases - October 2001, German High Court Decision - April 2003, European Court of Justice - October 2004, European Court of Justice Main content of these judgements is that the farmers and processors have to provide information only if the breeders or his representatives have clear indications that the farmer has used or will use FSS of his protected variety.

Udo von Kröcher 19 -Increasing resistance of farmers against providing the requested information -Constantly decreasing payments of FSS fees

Udo von Kröcher 20 What can, what has to be done? -analysis of present national legislation in the light of the present judgements -comparison with other national legal provisions -legal amendments on national and community level -analysis of the private agreements

Udo von Kröcher 21 -analysis of the concerns and the reasons for resistance of farmers to pay -new common activities between farmers‘ and breeders‘ associations are necessary in order to better inform the FSS users about their share of responsibility for the breeding progress