Abstract
Crop genetic diversity has always been important for food production. With changing climatic conditions, the importance of crop genetic diversity is increasing as diversity is central to agriculture’s ability to adapt to higher temperatures, precipitation changes and new pests and diseases. Maintenance of and access to this genetic diversity has become crucial. Legislation on the marketing of seed and plant propagating material, often referred to as ‘seed legislation’, specifies the requirements that seed and other propagating material must fulfil to be marketed legally, and how this marketing may be conducted. Such legislation can have a great impact on the composition of the seed market, as well as on cultivation and breeding, not least as it has the potential to restrict access to and maintenance of crop genetic diversity. In the European Union (EU) seed legislation is based on the principles of variety registration and certification of seed lots. Seed may be marketed only if it belongs to a variety that has been registered and the seed lot has been certified. A variety must satisfy distinctness, uniformity and stability requirements. For heterogeneous varieties this can be problematic, which in turn has potential consequences for the maintenance and further development of crop genetic diversity.
The introduction of derogations for the marketing of certain types of varieties and seed mixtures for conservation purposes provided greater legal space for the maintenance of crop genetic diversity in the EU. However, these derogations cover only some of the crop genetic diversity excluded from marketing by the main legislation. In addition, restrictions limit where and to what extent such varieties and seed mixtures can be marketed. In a preliminary ruling on the validity of current restrictions on the marketing of unregistered varieties, the Court of Justice of the EU in 2012 held that the legislation was valid. Many central stakeholders had expected the judgment to follow the opinion of Advocate General Kokott, who had reached the opposite conclusion. While the opinion had found that the disadvantages of the restrictions in question outweighed the benefits, the judgment concluded that the legislation was not manifestly inappropriate, given the objective of improved productivity. However, current legislation has been under review, and some changes are expected. During the review process various stakeholders voiced a wide range of differing views. Also in the literature, various suggestions for changing the EU seed legislation have been offered. As the details of seed legislation have received little attention outside a small circle of stakeholders and decision-makers, it is hoped that this article can help bring greater awareness of its importance and potential impact on the maintenance of crop genetic diversity.
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Notes
- 1.
For more information about the Commission on Genetic Resources for Food and Agriculture see http://www.fao.org/nr/cgrfa/en/
- 2.
For more information about the International Undertaking on Plant Genetic Resources for Food and Agriculture see http://www.fao.org/ag//CGRFA/iu.htm
- 3.
For more information about the Global Plan of Action see http://www.globalplanofaction.org/
- 4.
- 5.
For more information about the Plant Treaty see http://www.planttreaty.org/ or the website of the Farmers’ Rights Project (www.farmersrights.org).
- 6.
- 7.
For more information, see http://www.fao.org/agriculture/crops/thematic-sitemap/theme/seeds-pgr/gpa/en/
- 8.
Proposal for a Regulation of the European Parliament and of the Council on the production and making available on the market of plant reproductive material (plant reproductive material law) of 6 May 2013.
- 9.
The article is a revised and updated version of a study published in 2012 as an FNI Report.
- 10.
Commission Directive 2008/62/EC of 20 June 2008 providing for certain derogations for acceptance of agricultural landraces and varieties which are naturally adapted to the local and regional conditions and threatened by genetic erosion and for marketing of seed and seed potatoes of those landraces and varieties
- 11.
This term, ‘EU legislation on marketing of seed and propagating material’, is what is used about the current legislation, among other cases in connection with the review process, and it has also been taken as the point of departure here. However, the proposal for a new regulation recently adopted by the European Commission introduces the term ‘plant reproductive material law’.
- 12.
A directive is a legislative act that specifies results the EU countries must achieve, but which leaves the forms of methods of how this is to be done to the national authorities. A regulation, by contrast, is binding in its entirety in all member countries. See http://europa.eu/about-eu/basic-information/decision-making/legal-acts/.
- 13.
- 14.
- 15.
For some plant species the term ‘material’ is used, but for the sake of simplicity, only ‘variety’ is used here (as in the ‘Options and analysis’ paper published by the Directorate General for Health and Consumers).
- 16.
The term ‘certification’ as it is used here covers the inspection work conducted by the supplier, in addition to the intervention of official services in the form of visual inspections on the growing field and lots, including sampling and testing.
- 17.
The directive on ornamental plants is the only one of the eleven vertical directives that does not require some type of national list or catalogue to be established: Council Directive 98/56/EC of 20 July 1998.
- 18.
The common catalogue of varieties of agricultural plant species and the common catalogue of varieties of vegetable species are published in the Official Journal on the basis of information received from the member states; for an up-to-date account, see the EU database of registered plant varieties: http://ec.europa.eu/food/plant/propagation/catalogues/database/public/index.cfm?event=homepage) (see also http://ec.europa.eu/food/plant/propagation/catalogues/index_en.htm for further information).
- 19.
In EU legislation, the crops encompassed by this term are beet, fodder plants, cereal, potatoes and oil and fibre plants; value for cultivation and use requirements for these are specified in Council Directive 2002/53/EC on the common catalogue of varieties of agricultural plant species. However, Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed specifies that varieties of industrial chicory also require a satisfactory value for cultivation and use.
- 20.
- 21.
As specified in article 9 of Council Directive 92/33/EEC of 28 April 1992 on the marketing of vegetable propagating and planting material, other than seed, the varieties officially accepted under this directive are also to be listed in this catalogue.
- 22.
Council Directive 92/33/EEC on the marketing of vegetable propagating and planting material, other than seed introduces accreditation of suppliers and laboratories: an official body must verify that the suppliers meet the requirements; accreditation must be renewed if their activities change.
- 23.
Under Council Directive 1999/105/EC of 22 December 1999 on the marketing of forest reproductive material and Council Directive 98/56/EC on the marketing of propagating material of ornamental plants, as well as Council Directive 2008/90/EC of 29 September 2008 on the marketing of fruit plant propagating material and fruit plants intended for fruit production (the recast version of Council Directive 92/34/EEC of 28 April 1998), suppliers must be officially registered (no exceptions are mentioned for forest reproductive material; for propagating material of ornamental plants suppliers only marketing to non-professionals is excepted, and for fruit-plant propagating material and fruit plants intended for fruit production member states may exempt suppliers marketing only to non-professional final consumers).
- 24.
Although the legislation defines the term ‘propagating material’ (and ‘forest reproductive material’), no definition is provided for the term ‘seed’. In Council Directive 92/33/EEC for example, propagating material is defined as ‘parts of plants and all plant material, including rootstocks intended for the propagation and production of vegetables’ (Article 3), and all five directives dealing with such material provide a definition of the term. The FCEC evaluation therefore recommends that an overall definition of ‘seed’ should be consistently introduced in all the relevant directives (FCEC 2008). The proposal for a regulation adopted by the Commission 6 May 2013, presumably as a solution to this problem, introduces the term ‘plant reproductive material’ and defines it as ‘plant(s) capable of, and intended for, producing entire plants’ (Article 3).
- 25.
Council Directive 2002/11/EC of 14 February 2002 amending Directive 68/193/EEC on the marketing of material for the vegetative propagation of the vine and repealing Directive 74/649/EEC
- 26.
This is the recast version of Council Directive 92/34/EEC.
- 27.
Council Directive 2002/53/EC on the common catalogue of varieties of agricultural species does not contain any definition of this term. According to the evaluation conducted by the Food Chain Evaluation Consortium, this is because it is seen as a support directive and it was deemed unnecessary to include such a definition. However, the evaluation concludes that for the sake of thoroughness, clarity and consistency a definition should be added (FCEC 2008).
- 28.
Council Directive 98/95/EC of 14 December 1998 amending, in respect of the consolidation of the internal market, genetically modified plant varieties and plant genetic resources, Directives 66/400//EEC, 66/401/EEC, 66/402/EEC, 66/403/EEC, 69/208/EEC, 70/457/EEC and 70/458/EEC on the marketing of beet seed, fodder plant seed, cereal seed, seed potatoes, seed of oil and fibre plants and vegetable seed and on the common catalogue of varieties of agricultural plant species
- 29.
This directive defines a supplier as ‘any natural or legal person engaged professionally in marketing or importing of propagating material’ (Council Directive 98/56/EC: Article 2).
- 30.
Council Directive 2002/54/EC of 13 June 2002 on the marketing of beet seed, Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed, Council Directive 2002/56/EC of 13 June 2002 on the marketing of seed potatoes and Council Directive 2002/57/EC of 13 June 2002 on the marketing of seed of oil and fibre plants.
- 31.
With the addition of this definition to these two directives, it applies to all the vertical directives regulating the marketing of seed (as opposed to propagating material).
- 32.
Council Directive 2008/90/EC on the marketing of fruit plant propagating material and fruit plants intended for fruit production (recast version).
- 33.
Or, in the case of material for the vegetative propagation of the vine, ‘propagating material’, and fruit-plant propagating material and fruit plants intended for fruit production ‘propagating material or fruit plants’.
- 34.
According to the Food Chain Evaluation Consortium evaluation, the rather confusing phrase ‘whether or not for consideration’ came about when the original French/German text was translated into English. In other EU legislation the phrase used is ‘whether in return of payment or free of charge’ (FCEC 2008).
- 35.
The Commission proposal from 2013 uses the term ‘production and making available on the market’ instead of ‘marketing’, and defines ‘making available on the market’ as ‘holding for the purpose of sale within the Union, including offering for sale or for any other form of transfer, and the sale, distribution, import into, and export out of, the Union and other forms of transfer, whether free of charge or not’. This might be changed if the regulation is adopted by the European Parliament and the Council.
- 36.
The full title is ‘Council Directive 98/95/EC of 14 December 1998 amending, in respect of the consolidation of the internal market, genetically modified plant varieties and plant genetic resources, Directives 66/400//EEC, 66/401/EEC, 66/402/EEC, 66/403/EEC, 69/208/EEC, 70/457/EEC and 70/458/EEC on the marketing of beet seed, fodder plant seed, cereal seed, seed potatoes, seed of oil and fibre plants and vegetable seed and on the common catalogue of varieties of agricultural plant species’.
- 37.
The amendments were made with regard to the consolidation of the internal market, genetically modified plant varieties and plant genetic resources.
- 38.
This is the article amending Directive 66/400/EEC (on beet seed), but the same phrasing is also used in the paragraphs amending Directive 66/401/EEC (on fodder plant seed), Directive 66/402/EEC (on cereal seed), Directive 66/403/EEC (on seed potatoes), Directive 69/208/EEC (on seed of oil and fibre plants) and Directive 70/458/EEC (on vegetable seed).
- 39.
Five of the directives amended by Council Directive 98/95/EC (the directives on beet seed, seed potatoes, seed of oil and fibre plants, vegetable seed and the one on the common catalogue) were updated in 2002.
- 40.
Commission Directive 2008/62/EC defines ‘conservation in situ’ as ‘the conservation of genetic material in its natural surroundings and, in the case of cultivated plant species, in the farmed environment where they have developed their distinctive properties’, ‘genetic erosion’ as ‘loss of genetic diversity between and within populations or varieties of the same species over time, or reduction of the genetic basis of a species due to human intervention or environmental change’ and ‘landrace’ as ‘a set of populations or clones of a plant species which are naturally adapted to the environmental conditions of their region’ (Article 2).
- 41.
When the region of origin is located in more than one member state, the area shall be identified by all concerned member states by common accord. In both cases the Commission must be informed about the identified region.
- 42.
If the conditions for certification cannot be fulfilled in the region of origin due to a specific environmental problem, additional regions may be approved for seed production by the member state (seed produced in those regions must then be exclusively used in the region of origin); additional regions in a member state’s own territory may be approved for marketing of seed if those regions are comparable to the region of origin as regards the natural and semi-natural habitats of the variety in question. However, a member state that makes use of the first exception (for seed production), cannot make use of the second exception (for seed marketing).
- 43.
Directives 66/401/EEC, 66/402/EEC, 2002/54/EC, 2002/56/EC and 2002/57/EC.
- 44.
The only exception is seed of Oryza sativa (rice), which shall comply with the requirements of Directive 66/402/EEC for certification of ‘certified seed, second generation’ (with the exception of the requirements for minimum varietal purity and examination).
- 45.
The percentage is 0.3 % for some species (Pisum sativum, Triticum spp., Hordeum vulgare, Zea mays, Solanum tuberosum, Brassica napus and Helianthus annuus).
- 46.
This is also the case for Directives 66/401/EEC, 66/402/EEC, 2002/54/EC, 2002/56/EC and 2002/57/EC.
- 47.
In Directive 2008/62/EC the phrase used is ‘landraces and varieties which are naturally adapted to the local and regional conditions’ (Article 1), while in Directive 2009/145/EC it is ‘landraces and varieties which have been traditionally grown in particular localities and regions’ (Article 1).
- 48.
See Annex 1 of Commission Directive 2009/145/EC for specification of which species belong in which group.
- 49.
The Court of Justice of the EU is made up of one judge per member country. Each judge is appointed for a term of six years, which can be renewed. The Court interprets EU law to ensure it is applied in the same way in all member countries. See http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm
- 50.
This case falls in the category of a reference for a preliminary ruling, as a national court has requested the Court of Justice of the EU to check the validity of acts of EU law. When a national court is in doubt about the validity or interpretation of an EU law it can, and is sometimes obliged to, refer the matter to the Court of Justice. In such cases the Court of Justice decision is called a ‘preliminary ruling’. See http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm#case1 and http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14552_en.htm. See also Article 267 (ex Article 234 TEC) of the Consolidated Version of the Treaty on the Functioning of the European Union (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF)
- 51.
- 52.
The eight advocates general assist the Court of Justice of the EU by presenting opinions on the cases brought before it and are bound to do so impartially and publicly. Also the advocates general are appointed for six-year terms which can be renewed. See http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm
- 53.
The Opinion states that ‘the varieties at issue in the main proceedings are governed primarily or possibly exhaustively by’ (Advocate General Kokott 2012: paragraph 10) this directive.
- 54.
The Treaty on the Functioning of the European Union.
- 55.
See for example a posting on the matter by Arche Noah, an Austrian organisation devoted to the maintenance of heirloom varieties: http://www.arche-noah.at/discussion/viewtopic.php?f=2&t=1250
- 56.
See for example ESA Newsletter, January 2012, February 2012 and March 2012.
- 57.
The European Seed Association (ESA) does not provide any reference for this statement regarding the Court’s rulings, but the presumption seems to be quite common among those following the Advocates-General’s opinions and the preliminary rulings of the Court, and a figure of ‘agreement’ in 80 % of the cases has been used. However, although sources close to the Court say that in ‘a majority’ of the cases where an opinion has been written the Court agrees with the opinion, this ‘majority’ cannot be further specified. For more information see http://www.out-law.com/page-11458
- 58.
ESA Newsletter, January 2012. In June 2012 the organization reiterated that ‘it must be expected that the Court will push for some form of ‘liberalisation’ of market access’ (ESA Newsletter, June 2012, page 1).
- 59.
ESA Newsletter, February 2012, page 1.
- 60.
Letter from the European Seed Association to the Court of Justice of the European Union dated 27 February 2012, see http://www.kokopelli-semences.fr/medias/Letter-ESA.pdf
- 61.
ESA letter, page 5, see http://www.kokopelli-semences.fr/medias/Letter-ESA.pdf
- 62.
See post by Arche Noah: http://www.arche-noah.at/discussion/viewtopic.php?f=2&t=1250
- 63.
In the ESA Newsletter from January 2012, the European Seed Association writes that it will provide more information ‘once the final ruling of the ECJ is published which may still take several weeks’ (page 8).
- 64.
See post by Arche Noah on 2 April 2012: http://www.arche-noah.at/discussion/viewtopic.php?f=2&t=1250
- 65.
Although not specifically defined, it can be assumed that in this publication ‘Europe’ refers to the continent, and not just the EU, as the edited volume it belongs to contains chapters on Russia and Switzerland.
- 66.
In Eastern Europe, as well as Central and Western Europe.
- 67.
The European Economic Community was often referred to as the European Community also before it was officially renamed as such by the entry into force of the Maastricht Treaty in 1993.
- 68.
- 69.
See the website of the Directorate General for Health and Consumers: http://ec.europa.eu/food/plant/propagation/evaluation/index_en.htm
- 70.
- 71.
- 72.
ESA questionnaire, page 4 (see link in footnote 72).
- 73.
ESA questionnaire, page 5 (see link in footnote 72).
- 74.
Both the Irish Seed Savers Association (their responses can be found here: http://ec.europa.eu/food/plant/propagation/evaluation/docs/stakeholder_replies_2011/IrishSeedSaversAssociation.pdf) and the Danish Seed Savers Association (their responses can be found here: http://ec.europa.eu/food/plant/propagation/evaluation/docs/stakeholder_replies_2011/DanishSeedSaversAssociationFrosamlerne.pdf) are among the organizations that prefer scenario 4.
- 75.
Their responses can be found here: http://ec.europa.eu/food/plant/propagation/evaluation/docs/stakeholder_replies_2011/EuropeanConsortiumforOrganicPlantBreeding.pdf
- 76.
Their responses can be found here: http://ec.europa.eu/food/plant/propagation/evaluation/docs/stakeholder_replies_2011/KokopelliFrance.pdf
- 77.
Their responses can be found here: http://ec.europa.eu/food/plant/propagation/evaluation/docs/stakeholder_replies_2011/EuropeanCoordinationViaCampesina.pdf
- 78.
Association Kokopelli questionnaire, page 4: http://ec.europa.eu/food/plant/propagation/evaluation/docs/stakeholder_replies_2011/KokopelliFrance.pdf
- 79.
The EU’s ordinary decision-making procedure is known as ‘co-decision’: both the European Parliament (which is directly elected) and the Council (the governments of the EU member countries) have to approve EU legislation. Commission proposals are reviewed by both institutions and they have to agree on proposed amendments.
Abbreviations
- DG SANCO:
-
Directorate General for Health and Consumers
- DUS:
-
Distinct, Uniform and Stable (of plant varieties)
- EC:
-
European Community
- ESA:
-
European Seed Association
- EU:
-
European Union
- FAO:
-
Food and Agriculture Organization of the United Nations
- FCEC:
-
Food Chain Evaluation Consortium
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Treaties, Directives and the Proposal
Convention on Biological Diversity, 5 June 1992
The International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty), 3 November 2001
Council Directive 66/401/EEC on the marketing of fodder plant seed, 14 June 1966
Council Directive 66/402/EEC on the marketing of cereal seed, 14 June 1966
Council Directive 68/193/EEC on the marketing of material for the vegetative propagation of the vine, 9 April 1968
Council Directive 92/33/EEC on the marketing of vegetable propagating and planting material, other than seed, 28 April 1992
Council Directive 92/34/EEC on the marketing of fruit-plant propagating material and fruit plants intended for fruit production, 28 April 1992
Council Directive 98/95/EC amending, in respect of the consolidation of the internal market, genetically modified plant varieties and plant genetic resources, Directives 66/400/EEC, 66/401/EEC, 66/402/EEC, 66/403/EEC, 69/208/EEC, 70/457/EEC and 70/458/EEC on the marketing of beet seed, fodder plant seed, cereal seed, seed potatoes, seed of oil and fibre plants and vegetable seed and on the common catalogue of varieties of agricultural plant species, 14 December 1998
Council Directive 98/56/EC on the marketing of propagating material of ornamental plants, 20 July 1998
Council Directive 1999/105/EC on the marketing of forest reproductive material, 22 December 1999
Council Directive 2002/11/EC amending Directive 68/193/EEC on the marketing of material for the vegetative propagation of the vine and repealing Directive 74/649/EEC, 14 February 2002
Council Directive 2002/53/EC on the common catalogue of varieties of agricultural plant species, 13 June 2002
Council Directive 2002/54/EC on the marketing of beet seed, 13 June 2002
Council Directive 2002/55/EC on the marketing of vegetable seed, 13 June 2002
Council Directive 2002/56/EC on the marketing of seed potatoes, 13 June 2002
Council Directive 2002/57/EC on the marketing of seed of oil and fibre plants, 13 June 2002
Commission Directive 2008/62/EC providing for certain derogations for acceptance of agricultural landraces and varieties which are naturally adapted to the local and regional conditions and threatened by genetic erosion and for marketing of seed and seed potatoes of those landraces and varieties, 20 June 2008
Council Directive 2008/90/EC on the marketing of fruit-plant propagating material and fruit plants intended for fruit production, 29 September 2008 (Recast version)
Commission Directive 2009/145/EC providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties, 26 November 2009
Commission Directive 2010/60/EU providing for certain derogations for marketing of fodder plant seed mixtures intended for use in the preservation of the natural environment, 30 August 2010
Proposal for a Regulation of the European Parliament and of the Council on the production and making available on the market of plant reproductive material (plant reproductive material law) of 6 May 2013
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Winge, T. (2015). Seed Legislation in Europe and Crop Genetic Diversity. In: Lichtfouse, E. (eds) Sustainable Agriculture Reviews. Sustainable Agriculture Reviews, vol 15. Springer, Cham. https://doi.org/10.1007/978-3-319-09132-7_1
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DOI: https://doi.org/10.1007/978-3-319-09132-7_1
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