A FAQ guide providing a summary of key topics such as Plant Breeders' Rights, Marketing in GB and DUS Testing.

Contents

• Key Points
• Plant Breeders' Rights
• EU Common Catalogue and UK National List
• Marketing in GB
• Marketing seed in the EU and in NI
• The Northern Ireland Protocol and Windsor Framework
• DUS Testing
• Plant Health Requirements
• RoW (Rest of World)

Key Points

This guidance is being issued jointly on behalf of Defra, Scottish Government, Welsh Government and DAERA Northern Ireland.

Terminology:

• United Kingdom (UK) refers to England, Scotland, Wales and Northern Ireland (NI).
• Great Britain (GB) refers to England, Scotland and Wales.
• GB is used because the rules for marketing of seed and other propagating material and for variety listing differ from NI.

Plant Breeders' Rights

How do Plant Breeders' Rights (PBR) work?

Plant Breeders' Rights are a form of intellectual property right giving the holder exclusive control over commercialisation of propagating material and the ability to collect royalties. They are available for all genera and species of plants and help encourage investment in breeding new varieties.

How do EU Plant Variety Rights (PVR) work in the UK?

EU legislation provides a framework for plant variety rights in all Member States. EU plant variety rights are managed by the Community Plant Variety Office (CPVO), an EU agency.

In the UK, varieties with EU rights granted by the end of the transition period (31 December 2020) have been given protection under UK legislation. These are known as Retained EU Plant Variety Rights. A UK service address is required for these Retained EU PVRs.  Please see UK Plant Breeders with Retained EU Plant Variety Rights: Important Information - UK Plant Health Information Portal (defra.gov.uk) for further information.   

Is the duration of protection of the Retained EU PVR in the UK the same as for the PVR granted by the CPVO?

Yes. The remaining duration in the UK is calculated from the date the EU right was granted. All the relevant information held on the CPVO database has been copied into the UK’s database.

How do I apply for UK rights for a new variety?

For new varieties, separate protection will be required in the UK and the EU to achieve the same geographic coverage:

• For protection in the UK, an application would need to be made to APHA, following the normal process and payment of fees for UK plant breeders’ rights.
• For protection in the EU, the application would need to be made to CPVO.

What are the fees for UK PBR?

Fees for UK PBR can be found on GOV.UK PBR. The UK operates a policy of full cost recovery.

Who makes UK PBR decisions?

UK PBR decisions and the process are the responsibility of the Controller of UK Plant Breeders’ Rights.

What IT system does the UK use for applications for UK PBR?

All applications should be made using UPOV’s online PRISMA system. Guidance for PRISMA can be found at  https://www.upov.int/upovprisma/en/index.html.

For UK rights, do businesses outside the UK require a UK agent?

A UK address will be required for applications for UK PBR.

For EU rights, do UK businesses require a procedural representative based in the EU?

EU PVR legislation requires that an applicant is domiciled in the EU or has a procedural representative in the EU.

EU Common Catalogue and UK National List

How does National Listing work in the EU?

For the main agricultural and vegetable crops, and amenity grasses, a variety must be registered on the National List of an EU Member State before seed can be marketed. Once on a National List, a variety is added to the EU Common Catalogue making it marketable across the EU.

National Listing requires two types of testing: Distinctness, Uniformity and Stability (DUS) for all crops and Value for Cultivation and Use (VCU, performance testing) for agricultural crops.

What happened to the UK National List and Common Catalogue on 31 December 2020?

The UK National List was deleted from the Common Catalogue on 31 December 2020, so a variety must now be listed in one of the 27 Member States to be marketable in the EU.

What effect has the Windsor Framework had on UK National Listing?

Due to the terms of the Windsor Framework, the UK National List was sub divided into two separate lists, the GB Variety List (covering England, Scotland and Wales) and the NI Variety List. These lists were made up of all the varieties on the UK National List from the end of the transition period (31 December 2020). Applications for the NI Variety List are combined with applications for the GB Variety List. These combined applications are then processed, and the relevant growing trials commissioned.  Variety Listing decisions for GB are made by Defra, the Scottish Government and the Welsh Government. Decisions for NI are made by DAERA. The aim is to keep these lists aligned as much as possible for the UK Internal Market.

For a variety to be marketed in NI it must be on the NI Variety List or the EU’s Common Catalogue and to be marketed in GB it must be on the GB Variety List or the NI Variety List. Due to the terms of the Windsor Framework, varieties solely on the EU Common Catalogue may also be marketed in NI but not GB.

Are Common Catalogue varieties marketable in the UK?

Varieties must be on the GB Variety List or the NI Variety List to be marketable in GB. Common Catalogue varieties continue to be marketable in NI, but not GB.

Is there any mitigation for the GB Variety Listing requirement?

An administrative process was carried out in 2019, followed by a second process in autumn 2020, to add Common Catalogue varieties to the GB and NI Variety Lists. Many businesses used these opportunities.

Does GB Variety Listing apply to all the same species as the EU and will this be reviewed?

The UK has took over or transposed all EU legislation frozen at the point the transition period ended. The list of regulated species may be reviewed at some point in the future.

Does the maintainer of a listed variety have to be in the UK?

No, the maintainer of a listed variety does not have to be in the UK. Maintenance can be carried out in a country granted equivalence and under the responsibility of the persons responsible for the maintenance of the variety. Therefore, the maintainer of a listed variety can be in the UK or in a country granted equivalence. You can find a list of countries with species the UK will accept as meeting equivalence for variety maintenance here.

Further information on choosing a maintainer is available here.

How do the UK administrations monitor and enforce the marketing of varieties that are not listed?

The UK administrations will continue to enforce the marketing regulations as at present. 

What are the fees for GB and NI variety listing?

Fees for variety listing can be found on GOV.UK. The UK operates a policy of full cost recovery.

Marketing in GB

What are the marketing requirements in GB?

Apply to have seeds certified for marketing in England and Wales 

Defra, Scottish Government, Welsh Government and DAERA agreed an approach to accepting EU seed and other propagating material to ensure supply for farmers and growers. EU, Swiss and EEA country material is marketable in GB until 31st December 2029 (except seed potatoes) under the normal international rules for certification where they exist.

Defra have published authorisations for equivalence on the Plant Health Portal of EU member states, Iceland, Norway and Switzerland.

What changes have there been to the marketing requirements for seed potatoes?

For seed potatoes imported into GB to be marketed, seed potato production conditions in the country of production must be recognised as equivalent to those of GB. With the expiration of the temporary authorisation to market EU seed potatoes in GB, from 1 July 2021 it is no longer permitted to market seed potatoes produced outside of the British Islands in GB as no countries are currently recognised as equivalent for seed potato production. 

Marketing includes selling, holding with a view to sale or offering for sale, or any disposal, supply or transfer for the purpose of commercial exploitation of seed potatoes to third parties, whether or not for consideration.  Supply of some categories of material may fall outside of this definition and may not require the country of production to be recognised as equivalent. In those cases it is a requirement that the material must have derived in direct line from an eligible certification scheme in the country of production, with confirmation of freedom from ring rot and brown rot, and other restrictions apply (see table below). Eligible certification schemes are currently those official schemes in countries which can meet GB plant health requirements for seed potatoes.

Countries may apply to have their seed potato production conditions recognised as equivalent to those of GB.  Applications will be considered on their merits in line with the process set out in the Aquatic Animal Health and Alien Species in Aquaculture, Animals, and Marketing of Seed, Plant and Propagating Material (Legislative Functions and Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2020 (regulation 26 in particular is relevant). This requires an assessment of the relevant legislation of the country concerned and the practices of its competent authority to be carried out in order to ensure that seed potato production conditions are equivalent to the requirements of the relevant legislation in GB. The relevant legislation is:

•             in relation to England, the Seed Potatoes (England) Regulations 2015 (Statutory Instrument No. 2015/1953)

•             in relation to Wales, the Seed Potatoes (Wales) Regulations 2016 (Statutory Instrument No. 2016/106(W.52))

•             in relation to Scotland, the Seed Potatoes (Scotland) Regulations 2015 (Statutory Instrument No. 2015/395)

•             in relation to the maintenance of varieties, the Seeds (National Lists of Varieties) Regulations 2001 (Statutory Instrument No. 2001/3510) (Statutory Instrument No. 2001/3510)

In order for an assessment to be carried out, applicants should provide in writing to the Chief Plant Health Officer for the UK details of their legislation concerning seed potatoes and a description of their practices regarding the certification, inspection and examination of seed potatoes and seed potato crops. This should include a list of their regulations relevant to seed potatoes and copies of (or links to) the relevant legislation (in English), as well as a description of their variety maintenance procedures, a description of their national scheme for the certification of seed potatoes and a copy of their national rules and procedures governing the certification of seed potatoes (in English).   Should an assessment be approved by the Secretary of State for Defra, the Welsh Ministers and the Scottish Ministers, an authorisation will be made in writing and published.

Seed potatoes are subject to plant health requirements in addition to marketing requirements. GB plant health legislation permits seed potatoes to be brought in only from the EU, Liechtenstein and Switzerland. Provided individual consignments meet the required standards, are accompanied by a phytosanitary certificate and the correct notifications are made there is currently no plant health reason that seed potatoes cannot be brought in from these countries.

However, among other specific plant health restrictions, requirements are in place concerning the planting of seed potatoes from other countries, and additional restrictions also apply as regards planting seed potatoes in protected regions (which includes all of Scotland and parts of Northern England). These requirements apply irrespective of the use of the seed potatoes (i.e. whether marketing is involved) and are additional to any pest-specific requirements which may apply (e.g. as regards soil testing for PCN, or restrictions in demarcated areas).  The main such plant health requirements are described in the table below which summarises the current position for marketing different types of seed potatoes and related plant material:

Why the requirement for OECD certification and ISTA certificates?

Following the end of the transition period (31 December 2020), GB treats seed from the EU in the same way as seed from other countries. This means following the rules of OECD schemes, which are internationally recognised and facilitate equal treatment. The OECD labelling and certificate, together with the ISTA Orange International Certificate, show that seed meets standards for variety identity, variety purity and seed quality equivalent to GB standards. OECD labels must contain the statement ‘GB rules and standards’.

At what point can seed be marketed after applying for GB Variety Listing?

Seed cannot be marketed until the variety is on the GB Variety List (or NI Variety List). The exception is test marketing under an authorisation for not yet listed varieties, where an application for listing has been made but testing has not been completed. After the transition period, these arrangements will continue, but will only apply to marketing in GB of varieties with an application for GB or NI listing.

Is vegetable seed of not yet listed varieties authorised in EU 27 Member States marketable in the UK?

For test marketing in GB, there must be an application for GB or NI listing and a seed corresponding authorisation. EU authorisations will continue to be recognised in Northern Ireland.

What changes have there been for marketing of fruit propagating and planting material?

For fruit, EU propagating and planting material is marketable in GB through unilateral recognition of EU material as equivalent. EU labelling is recognised.

Does a sample need to be provided for imports of EU seed greater than 2kg?

Following the end of the transition period (31 December 2020), imports of seed from the EU are treated in the same way as seed from the rest of the world. This means that a sample must be provided to the relevant seed certification authority for imports greater than 2kg.

Please submit the appropriate forms for all third country seed imports over 2kg to APHA, the forms are available here.

Table of marketing requirements for EU seed and other propagating material in GB (plant health requirements also apply)

Marketing seed in the EU and in NI 

Am I able to market seed and other propagating material in the EU?

The EU have formally granted equivalence to the UK for agricultural seed (excluding certified vegetable seed), fruit and vegetable propagating material, and forest reproductive material (FRM) (excluding tested material). These commodities produced in GB can therefore be marketed in the EU.

GB certified agricultural seed must be marketed in the EU under the rules of the Organisation for Economic Co-operation and Development (OECD). This means seed lots need to be OECD certified if there is an OECD scheme and have an ISTA Orange International Certificate. 

Standard seed of vegetable can be marketed into the EU and NI provided that it is accompanied by a supplier’s label and a phytosanitary certificate.

In addition, the European Commission has adopted a temporary equivalence decision that permits the marketing of the tested categories of FRM to the EU (and NI). The decision will remain in place until the end of 2024 and permits Member States to make their own decisions about importing tested categories of FRM from GB. This temporary decision allows the EU the time necessary to extend Council Decision 2008/971/EC to apply to tested material and will avoid any risk of disruption of imports of tested material into the EU. Suppliers of FRM are advised to contact the Forestry Commission to obtain the necessary OECD certificates before supplying any FRM to the EU at FRM@forestrycommission.gov.uk

The EU continues to prohibit GB imports of seed potatoes, despite the UK maintaining virtually identical plant health standards to the EU.  Finding a solution to restore the EU export for GB seed potatoes continues to be a high priority for the UK Government. 

Ware potato exports or movements to the EU and NI are permitted, provided plant health requirements are met.   

The Northern Ireland Protocol and Windsor Framework

Terminology:

• United Kingdom (UK) refers to England, Scotland, Wales and Northern Ireland (NI).
• Great Britain (GB) refers to England, Scotland and Wales.
• GB is used because the rules for marketing seed and other propagating material and for variety listing differ from NI.

Can I market GB seed and other propagating material between GB and NI? 

The Government has committed to unfettered market access for movement of goods from NI to GB, this includes seed and other propagating material. Material is marketable under existing EU rules.  

For seed moving from GB to NI, details are provided in the table below. 

The cost of ISTA testing and certification required for individual seed lots moving from GB to NI is included in the Movement Assistance Scheme (MAS). MAS will cover the cost of testing and certification only when carried out solely to facilitate the movement of seed lots to NI and ISTA application forms (form Cert9) must state “Northern Ireland” in the “Country of Destination” field. MAS is scheduled to run until 30 June 2025. Further information on the scheme is available on gov.uk: https://www.gov.uk/government/publications/movement-assistance-scheme-get-help-with-moving-agrifood-goods-to-northern-ireland 

Can seed and other propagating material move freely from EU to NI, and onto the GB market? 

There is unfettered access for NI goods to the rest of the UK market. The basis on which businesses may qualify for unfettered access is clearly set out in legislation. 

Under the provisions for unfettered market access for Northern Ireland Qualifying Goods, material certified and labelled under the EU’s rules for its single market can move onwards into GB. 

DUS Testing

Please refer to gov.uk guidance here. 

Plant Health Requirements  

What are the plant health requirements for importing and exporting seed?

Please refer to gov.uk guidance here

RoW (Rest of World)

Imports

Have there been any changes to marketing of seed from third countries?

All third countries currently recognised by the EU as equivalent for seed certification continue to be recognised as equivalent by the UK (GB).

For all countries recognised by the EU as equivalent, there are no changes to requirements on seed imported into GB. The Seed (Equivalence) (Amendment) (England) Regulations 2022 extends EU Council Decision 2003/17/EC until 31st December 2029. This means that all countries recognised by the EU as equivalent for certification at the end of December 2020 continue to be recognised as equivalent by GB. This applies to all species covered by the relevant legislation (Seed Marketing Regulations 2011, Seed Marketing (Wales) Regulations 2012, Vegetable Seeds Regulations 1993 ,Oil and Fibre Plant Seed (Scotland) Regulations 2004, Cereal Seed (Scotland) Regulations 2005, Fodder Plant Seed (Scotland) Regulations 2005, Beet Seed (Scotland) (No. 2) Regulations 2010) – species covered by the EU Directives mentioned in EU Council Decision 2003/17/EC, but which are not covered by the legislation listed, does not have to meet the below requirements to be imported and marketed.

Whereas the requirements remain the same, the labelling should now include “GB Rules and Standards” instead of “EU Rules and Standards”. OECD certification and an ISTA Orange International Certificate or equivalent will continue to be required. If the seed certified under the OECD Seed Schemes is imported and intended for marketing in GB then the variety will need to be on either the GB or NI Variety List and the OECD List.

If seed is destined for movement into NI, the current EU requirements should be met and the seed label will need to state “EU rules and standards”. Varieties imported into NI would need to be on the OECD List and for marketing in NI would need to be on the NI Variety List or the EU’s Common Catalogue.

The UK will make its own, separate decisions for any new countries requesting equivalence.

Have there been any changes to marketing of seed in GB from EU member states, Switzerland, Iceland and Norway?

The UK has granted equivalence recognition to EU member states, Switzerland, Iceland and Norway, where that country is a member of the relevant OECD seed scheme.

We have reciprocated the requirements and conditions in the EU’s decision on equivalence 2003/17/EC. This means that seed imported into GB from these countries must be certified under OECD rules and have an ISTA Orange International Certificate. The label must state “GB rules and standards”. If the seed is intended for marketing in GB, the variety will need to be on the GB or NI Variety List as well as the OECD List. This does not apply to seed of species covered by the EU Directives which is not covered by the relevant GB legislation.