A legal dispute before the French courts arose between Association Kokopelli (“Kokopelli”) - an organisation that promotes “old vegetable varieties” - and Graines Baumaux SAS (“Graines Baumaux”), a seller of vegetable seed.
The Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed (“European Directive on the Marketing of Vegetable Seed”) stipulates that the marketing of vegetable seed is subject to prior “acceptance” of the respective seed variety in one or more member states of the European Union. A variety will be “accepted” by inclusion in the official catalogues of the member states only if the variety is distinct, stable and sufficiently uniform. In addition, due to certain national legislation productivity - that is, that the variety is of “satisfactory value for cultivation and use” - has to be proven. However, the Commission Directive 2009/145/EC of 26 November 2009 (“Commission Directive 2009/145/EC”) provides for a derogation with regard to ”old varieties” and stipulates that - under certain conditions - “conservation varieties” and “varieties developed for growing under particular conditions” may be marketed even if these varieties do not comply with the requirements for acceptance for inclusion in the official catalogues pursuant to the provisions of the European Directive on the Marketing of Vegetable Seed. The latter Directive provides for geographical, quantitative and packaging restrictions with regard to the sale of seed of such varieties.
Kokopelli sold, inter alia, seed of “old vegetable varieties”. As such varieties do not necessarily comply with the requirements of being distinct, stable and sufficiently uniform (as well as productive), they were neither in the French nor in the Community catalogue of varieties of vegetable species. They also had not been listed there as “conservation varieties” by operation of the derogation according to the Commission Directive 2009/145/EC. Given this, Graines Baumaux filed a lawsuit against Kokopelli on the basis of unfair competition law. The regional French court ordered in favour of Graines Baumaux that Kokopelli had to cease to trade these varieties and had to pay damages.
Upon appeal of Kokopelli, the Court of Appeal (Cour d’appel de Nancy) asked the ECJ whether the directives are valid. This gave rise to the question of whether the principle that only seed of registered varieties may be traded within the EU is valid in consideration of the principle of proportionality, the principle of equal treatment, the freedom to pursue an economic activity and the free movement of goods, and the EU’s commitments arising from the International Treaty on Plant Genetic Resources for Food and Agriculture (“ITGRFA”).
Advocate General Kokott suggested abolishing the official acceptance of varieties by listing them in the official catalogues (for “old” and “new” varieties) as - in her view - the disadvantage of the prohibition against the sale of unlisted seed is disproportionate to its aims. Despite this opinion of Advocate General Kokott the ECJ ruled that the two directives are valid. Thereby the ECJ reconfirmed that in principle only seed of registered varieties may be traded within the EU.