For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 6 August 2014

German plant breeders challenge EU Nagoya Regulation - allege threatens biodiversity

Merpel's plant breeding attempts
were not as successful as hoped
This moggy posted yesterday what he thought was a roundup of news relating to the Nagoya Protocol and its implementation in the EU, only to then be alerted to a far more interesting development.  According to a press release from the Bundesverband Deutscher Pflanzenzüchter e. V.  (German Plant Breeders’ Association (BDP)) that he has received, a group of 17 German plant breeder companies have challenged the EU Regulation No 511/2014 before the European Court of Justice (presumably the General Court) and sought its annulment.

Apparently, while the companies support the objective of  fair benefit sharing between providers and users of genetic resources, they consider that the Regulation as currently framed will not achieve this.  (Which is rather what this moggy has been thinking as well).  In particular they consider that to keep exact documentation for every line that may be used in an experimental breeding programme is impossibly onerous.  Thus, the due diligence requirements of the Regulation cannot practically be complied with.  The result, they say, is that research into new plant varieties will be stifled, and so, ironically, biodiversity will suffer.

More specifically, the press release quotes Ms Stephanie Franck, President of the German Plant Breeders’ Association (BDP) as follows:
“The EU Regulation leads to abundant red tape, restricts access to plant genetic resources in particular for plant breeders – meaning: its utilization in breeding- and by far exceeds the principles laid down in the Nagoya Protocol itself”.
 Ms Franck stresses that German plant breeders give their unconditional support to the objective of fair benefit sharing between providers and users of genetic resources of the Nagoya Protocol. The EU Regulation implementing it, however, does not provide a viable solution. Real benefit sharing will only take place as long as plant breeders actually use the resources, i.e. as long as access is not prevented by excessive bureaucratic hurdles. Plant breeding needs a special approach, explains Ms Franck, since utilization of a genetic resource in plant breeding is not comparable to other forms of utilization, as e.g. in the pharmaceutical industry. The plant breeder can only uncover the value of genetic resources during the long breeding process, and therefore the direct exploitation of genetic resources is not given . “The exact documentation on the utilization of genetic resources as required by the EU Regulation is practically not feasible,“ says Ms Franck. The CIMMYT wheat variety Veery for example is a product of 3,170 crossings between 51 different parental lines originating from 26 different countries. Such a plant variety has been developed over many generations and by many different plant breeders. “A plant breeder simply does not have the information required for documentation” Ms Franck adds.

Above all, the EU Regulation implementing the Nagoya Protocol undermines the basic principle of plant variety protection, which has been designed as “open source” system. Currently, a newly bred plant variety, once placed on the market is free for use as a genetic resource for further breeding –without any further restrictions. This simple access will become impossible in the future due to comprehensive documentary obligations. In the end, this will lead to a depletion of genetic diversity, and thus to more restricted choice of plant varieties and to a slowdown of the breeding progress. This happens at a time when plant research, plant breeding and agriculture are confronted with the global challenges to produce more despite increasing scarcity of land, and to do so in a sustainable way, i.e. using as little non-renewable resources as possible. “To achieve this, varieties of premium quality adapted to different regional climates are essential. The diverse utilization of all existing genetic resources provides an important foundation for this effort. Otherwise, we will have to expect lower and less stable yields and rising food prices, in the midterm”, Ms Franck warns.
What the IPKat would really like, however, is some detail of the case itself, which is sadly lacking from the report he has seen.  He thinks that the case concerned might be T-559/14 - Ackermann Saatzucht and Others v Parliament and Council, since the companies who have brought action are listed in the press release as follows:

  • Ackermann Saatzucht GmbH & Co. KG
  • Böhm Nordkartoffel Agrarproduktion GmbH & Co. KG
  • Deutsche Saatveredelung AG
  • Ernst Benary Samenzucht GmbH
  • Freiherr von Moreau Saatzucht GmbH
  • Gartenbau J. + H. Westhoff GbR
  • HYBRO Saatzucht GmbH & Co. KG
  • Klemm + Sohn GmbH & Co. KG
  • KWS SAAT AG
  • Norddeutsche Pflanzenzucht Hans-Georg Lembke KG
  • Nordsaat Saatzuchtgesellschaft mbH Saatzucht Langenstein
  • P. H. Petersen Saatzucht Lundsgaard GmbH
  • PZO - Pflanzenzucht Oberlimpurg Dr. Peter Franck
  • Saatzucht Streng-Engelen GmbH & Co. KG
  • SaKa Pflanzenzucht GmbH & Co. KG
  • Strube Research GmbH & Co. KG
  • W. von Borries-Eckendorf GmbH & Co. KG

Finally, the IPKat has now heard that this is not the only case - there is also apparently a similar action from plant breeders in the Netherlands, brought by 16 companies.  Will there be more?  Will any action be successful?  The IPKat and Merpel cannot wait to hear more details.  If any reader has more information, please comment or email in the usual manner.

4 comments:

Graham Dutfield said...

These concerns ought to be allayed by Art. 4.(4) of the Regulation along with Recital 12 which pretty much leaves access and benefit sharing in relation to plant genetic resources for food and agriculture to the FAO International Treaty. Perhaps the language of the Regulation could be a little more helpful but it's probably clear enough. It will be interesting to hear the views of the Dutch breeders since they arguably have a bigger stake than any country in the world. I suspect their criticisms will be a little more nuanced but we'll see.

Darren Smyth said...

Dear Graham
Thank you for your comment. The German plant breeders apparently have concerns notwithstanding the FAO - a note on the press release states:

"The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) of the FAO provides an alternative approach which is well adapted to the situation in plant breeding/agriculture. It ensures both access to genetic diversity and benefit sharing, while providing best possible legal safety for both parties. However, the ITPGRFA does not apply to all plant species and not to all utilizations of the species covered. In order to ensure that the existing genetic diversity will continue to be put to use in plant breeding, and to even enhance this utilization, the scope of the ITPGRFA needs to be extended so as to include all important horticultural and agricultural species."

The main carve-out from the Regulation is in Article 2(2), which I understand would restrict to the species in Annex 1 of the (ITPGRFA); the additional carveout in Article 4(4) of the Regulation, extending beyond the crops of Annex 1, only applies is the country of origin says so, and it is not so far clear the extent to which this applies. Even so, there will be an additional record keeping requirement, and that seems to be the main concern.

I would certainly be interested to know more about both the German and the Dutch cases.

Best wishes

Darren

Anonymous said...

A PDF document was found on August 8, 2014 on the website of Plantum (the Dutch association for the plant reproduction material sector), see url below:

https://plantum.nl/WMSDownload/Download?file=De6NtwbQSzdWbeya%2FXc3HSQdXj77s%2BNgFjjOsKg6ExEkqf02jjLz7%2FihlxqQgA9o310SjCycVniGZju8afikVg%3D%3D&sectionName=Nieuws%20-%20Persberichten&type=files

The document mentions "The most important juridical arguments against Regulation 511/2014":

1. The obligation as mentioned in article 4 paragraph 3 to transfer to subsequent usersall information and obligations concerning the genetic resource in question is notrequired in the Nagoya Protocol and results in a significant increase of administrativeburden, especially for SMEs. It is required to provide a lot of, partly confidential,information to subsequent breeders who use the commercial variety resulting from thefirst breeder for further breeding. The subsequent breeders have to pay for the use ofthe variety in their breeding program, while under the UPOV Plant Breeders RightsSystem protected varieties can freely be used for further breeding, and the resultingvarieties can be exploited without any obligation to the first breeder. Therefore weconsider article 4 in conflict with the breeder's exemption and as result infringing the UPOV Treaty and the Unitary Patent Agreement, as it blocks the free access tocommercial varieties for using as genetic resource.

2. The Nagoya Regulation rules only the Benefit Sharing for the use of genetic resourcescoming into force before the access in most member states of the CBD and thesignatories of the Nagoya Protocol has been properly implemented. This results in anunacceptable legal uncertainty for the companies using genetic resources that fall underthe scope of the Nagoya Regulation. We consider this in conflict with the general accepted principles of law.

Graham Dutfield said...

Dear Darren

Many thanks. I've always been concerned about general inclusions of PGRs for food and agriculture in access and benefit sharing regulations. On the other hand, inclusion of some high-value endemic cultivated species are justified if the rules are workable. Plantum is not, as far as I know, keen on the intrusion of patents in plant improvement and it's a bit ironic that without the IP practices of firms like Monsanto, the language of the Regulation would likely have been much less concerning for the breeder organisations. That's politics. Of course, a lot of important agricultural research is done by non-commercial operations (John Innes, Rothamsted in the UK for example), and it would be interesting to know their take on the Regulation.

Regards

Graham

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