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Monday, 6 July 2015

The General Court declines to visit Nagoya: challenges inadmissible

This Kat reported that August that German and Dutch associations of plant breeders had challenged EU Regulation 511/2014 (the Regulation implementing the Nagoya Protocol and setting out compliance measures for EU users) before the General Court in order to seek its annulment.

Details at that time were a little patchy, although some helpful comments provided a little more information. Now, our eagle-eyed blogmeister has noticed from an e-Bulletin from Herbert Smith Freehills (to whom a very grateful Katpat) that the General Court has rejected both challenges as inadmissible.

The German action was filed by Ackermann Saatzucht GmbH & Co. KG and 16 other persons; the Dutch action was filed by ABZ Aardbeien Uit Zaad Holding BV and 15 other persons, all active in the plant breeding sector.

The two decisions, T‑559/14 and T‑560/14, are basically the same.  They are quite brief, and you can read them (in English!) here and here.  They are probably of more interest for an understanding of who may admissibly challenge an EU Regulation than for enthusiasts of the Nagoya Protocol, although the evidence is that there are more of the former than the latter among the readership of this blog (somewhat to this Kat's regret).

In both cases Council and Parliament requested that the challenges be ruled inadmissible, and the Court agreed.  The Court noted that the Regulation was a legislative act, and not a regulatory act.  Therefore, there were only two routes by which a person might seek its annulment - either the Regulation was addressed to them (which it was not) or if the "act is of direct and individual concern to them".  The Court considered that

It has consistently been held that persons other than the addressees of decisions can claim to be individually concerned only if that decision affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.  
The Court then held:
Thus, it is clear that the applicants are affected by the contested regulation only in their objective capacity as users of genetic resources or traditional knowledge associated with genetic resources, as defined in Article 3 of the contested regulation, in the same manner as any other user coming within the scope of the contested regulation. No particular quality or fact characterises them in relation to other persons coming within the regulation’s scope.
Accordingly, the actions were held inadmissible.

It is hard to see that any other outcome to these challenges was possible, but it is a pity that the result means we have no judicial consideration of the legislation, which would have been interesting and maybe even illuminating.

A reminder to readers: the penalties for non-compliance with the Regulation come into force on 12 October 2015, so you have only three months to become familiar with the Nagoya Protocol before it begins to really affect researchers.

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