The United Kingdom submitted on 29 March 2017 the notification of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on European Union[1]. This means that unless the withdrawal agreement establishes another date or the period is extended by the European Council in accordance with Article 50(3) of the Treaty on European Union, all Union primary and secondary law ceases to apply to the United Kingdom from 30 March 2019, 00:00h (CET). The United Kingdom would then become a 'third country'.
In view of the considerable uncertainties, in particular concerning the content of a possible withdrawal agreement, all breeders within the meaning of Article 11(1) of Regulation (EC) No 2100/94 on Community plant variety rights[2] (hereinafter: the Basic Regulation) are reminded of certain legal repercussions stemming from currently applicable rules of Union law if the United Kingdom becomes a third country, which need to be considered.
Issues to be considered by the breeders
All Community Plant Variety Rights granted pursuant to the Basic Regulation will remain valid in the Union territory, regardless of the origin of the breeder or the location of the Examination Offices.
The Examination Offices in the United Kingdom will no longer have the possibility to participate in the technical verification of the maintenance of the protected varieties pursuant to Articles 64 and 65 of the Basic Regulation. Technical verifications following 30 March 2019 will be organised by the CPVO in an EU-27 based Examination Office.
According to Article 82 of the Basic Regulation, persons who are not domiciled or do not have a seat or an establishment within the EU territory may participate as party to proceedings before the Office only if they have designated a procedural representative who is domiciled or has his seat or an establishment within the EU territory. All interested breeders who are currently domiciled or have a seat in the United Kingdom only, should consider the need of timely designating a procedural representative to comply with the provisions of that Article.
Actions to be taken by the Community Plant Variety Office (CPVO)
The Examination Offices in the United Kingdom are entrusted for 864 botanical taxa. Out of those there are 678 botanical taxa for which no other Examination Office is entrusted in the Union. It is to be noted that the CPVO has received applications regarding 324 of the aforesaid 678 botanical taxa. In order to ensure the continuity of the technical examination of varieties belonging to those botanical taxa, the CPVO has organised a procedure (the "new species procedure" with deadline 30 July 2017) to ensure as from 30 March 2019 at the latest the entrustment of Examination Offices in the Union to cover at least all 324 botanical taxa for which an actual application for a Community Plant Variety Right has been received by the CPVO. A subsequent procedure to include additional botanical taxa may follow later. After the new species procedure is completed, breeders will be informed about the new Examination Offices for the respective species.
In order to avoid as much as possible transitional difficulties, CPVO will stop assigning the technical examination of varieties (Article 55(1) of the Basic Regulation) to the Examination Offices in the United Kingdom, where that examination is expected to last beyond 29 March 2019.
Nevertheless, we also need to remind stakeholders that preparing for the withdrawal of the United Kingdom is not just a matter for European and national administrations, but also for private parties. Breeders may thus be required to monitor the developments, adapt processes and to consider the changes described above.
[1] Treaty on European Union, OJ C 326, 26.10.2012, p. 13–390
[2] Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, OJ L 227, 1.9.1994, p. 1