1.The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point:
Confirm whether a person will be able, after the grant of an application under regulation 10, to exercise the right to compensation for infringing actions taken before exit day but after the publication of their application for a Community Plant Variety Right as currently provided for by Article 95 of Regulation (EC) 2100/94.
2.Section 5 of the Plant Varieties Act 1997 (the “1997 Act”) is in terms corresponding to the provisions of Article 95 of Regulation (EC) 2100/94. Under section 5 of the 1997 Act, where an application for a plant breeders’ right is granted, the holder of the right is entitled to reasonable compensation for an infringing action taken during the application period. The application period runs from the date of publication of details of the application in the Gazette (maintained under the Plant Varieties and Seeds Act 1964).
3.In framing these Regulations (S.I. 2019/204), the Department took the view that applications made to the Community Plant Variety Office before exit day which immediately before exit day had not been determined under Article 61 or 62 of Regulation (EC) 2100/94, or were still the subject of the appeal process, should be classed as unresolved applications on exit day (see the definition of “unresolved application” in regulation 9 of S.I. 2019/204). Regulation 10 of S.I. 2019/204 allows the applicant of an unresolved application for a Community plant variety right (CPVR) to make an application for UK Plant Breeders’ rights within six months of exit day. For those applications, the provisional protection period under section 5 of the 1997 Act is modified by regulation 13 of this instrument so as to run from exit day rather than from the date on which the UK application is published. This extended period only relates to the period between exit day and the publication of the details of the application in the UK.
4.In relation to the period before exit day, the applicant would have enjoyed the provisional protection granted by Article 95 of Regulation (EC) 2100/94 from the date of publication of the application for a CPVR. Since the EU Regulation is revoked with effect from exit day, this right does not after exit day form part of retained EU law by virtue of section 3 of the European Union (Withdrawal) Act 2018 as it otherwise would; but any right to compensation under Article 95 of the Regulation which has accrued before exit day by virtue of an infringement occurring before that date is preserved by section 4 of that Act, so as to continue to be recognised and available on and after exit day, and to form part of retained EU law, by virtue of section 4.
Department for Environment, Food and Rural Affairs
5 March 2019
Published: 15 March 2019