ECJ confirms EU directives on the marketing of vegetable seed

European Court of Justice confirms limitation of certification and marketing of vegetable seed to seed of a variety that is officially accepted for inclusion in the official catalogues in one or more Member States (Case C-59/11 - Association Kokopelli v Graines Baumaux SAS)

On 12th July 2012 the European Court of Justice (“ECJ”) reconfirmed that in principle only seed of registered varieties may be traded within the EU. Seed of “old varieties” - which are varieties that are not or no longer listed in the official catalogues - may only be traded under certain circumstances if they comply with the requirements of the Directive that allows for a trading of certain “conservation varieties” and “varieties developed for growing under particular conditions”.

The decision of the ECJ turned out to be one of the few decisions in which the ECJ did not follow the opinion of the General Attorney of the ECJ (Advocate General Kokott).

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.

In its decision of 12th July 2012, the ECJ ruled that the validity of the two directives is not affected by the above mentioned principles of EU law nor by the EU’s commitments arising from the ITGRFA.

With this decision the ECJ followed the experts in the agricultural sector who had provided the European Commission, the Council of the European Union and some Member States with their statements in favour of the acceptance and listing requirement.

The ECJ ruled that the EU directives on the marketing of vegetable seed are valid, because:

• the requirement of listing the traded varieties in the official catalogues and the related listing criteria ensure that seed of a given variety has the quality necessary to guarantee a high level of agricultural production that is of good quality, reliable and maintained over time;
• the purpose of acceptance of vegetable seed is to improve productivity in vegetable cultivation in the EU;
• the derogating acceptance regime implemented for “conservation varieties” and “varieties developed for growing under particular conditions” is capable of guaranteeing the conservation of plant genetic resources;
• the directives take into account in a sufficient manner the economic interests of traders, who sell “old varieties” that do not comply with the requirements for inclusion in the official catalogues, in that those directives do not rule out the marketing of such varieties;
• the geographical, quantitative and packaging restrictions regarding the sale of seed of such “old varieties” fall within the scope of the conservation of plant genetic resources.

The press coverage of this case - for whatever reason - was misleading. It gave the false impression that it was not the Commission Directive 2009/145/EC but the ECJ by this decision that had created the derogation that “old varieties” may be traded in certain cases. Additionally, the press has reflected very little on the facts that even according to this Directive an acceptance for inclusion in the official catalogues as a “conservation variety” is still necessary and that the Directive provides for geographical, quantitative and packaging restrictions regarding the trade of seed of those conservation varieties.

Furthermore, presumably as a reaction to the opinion of Advocate General Kokott, the press seems to have hailed the “End of Seed Law”. This was not only misleading - as it eventually turned out - but it failed to reflect the positive effects that the breeding of new varieties has on the biodiversity in the plant breeding sector and on the competitiveness of the European agriculture and that these effects are protected by the Seed Law.

The directives and the related registration requirements are of paramount importance in order to ensure a high level of agricultural production and to safeguard the interests of the farmers and gardeners - being the buyers of such seed - in seed of good quality.