EU Advocate-General Opinion
I created quite a bit of confusion yesterday with my post about the opinion issued by the Advocate-General in the case of Association Kokopelli vs Graines Baumaux SAS in France. I’m sorry about that. It was a case of wanting to get some information out, but not having all the details at hand.
I received an email about this in French and German that had some wrong information, and then found the opinion had only been issued by the EU Court of Justice in Spanish, German, Estonian, Greek, French, Italian, Latvian, Dutch, Portuguese and Finnish — not English. I was also not very familiar with this case, not familiar with how the EU Court of Justice works, and not very good with legal things in general. I was struggling to sort this all out with Google Translate.
Anyway, thanks mostly to an email exchange with Ben of The Real Seed Catalogue, who is a lot more familiar with this subject in general, I have some more information to share.
Not Binding, But Very Important
First of all, what exactly is an Advocate-General or in some places called the Attorney General?
The EU Court of Justice is made up of 27 judges from each of the EU countries, and 8 Advocate-Generals. According to Wikipedia:
…The intention behind having Advocate-General attached is to provide independent and impartial opinions concerning the Court’s cases. Unlike the Court’s judgements, the written opinions of the Advocates-General are the works of a single author and are consequently generally more readable and deal with the legal issues more comprehensively than the Court, which is limited to the particular matters at hand. The AGs opinions are advisory and do not bind the Court, but they are nonetheless very influential and are followed in the majority of cases…
So the opinion that came out concerning Kokopelli is not binding but very important. It has the possibility to greatly influence the future of EU Seed Law. As I understand it, it was requested by Kokopelli’s lawyer as part of their trial in France.
It’s also important to point out this Advocate-General might change her mind, or another Advocate-General might issue a conflicting opinion. Nothing is certain.
It’s also important to understand that this opinion was issued at the EU level, so has the possibility to influence similar court cases across Europe.
What Was in the Opinion
What the opinion said was very important. It addressed specifically the part of EU and related French Seed Law that requires food crop varieties be categorized according to so-called DUS (Distinct, Uniform and Stable) criteria, and then listed in official seed lists. The opinion specifically excluded all other parts of EU Seed Law. It has to be said that this is certainly the most contentious part of the law.
What’s currently being discussed by the EU Agriculture Ministers, NGOs and others like me, is if a good fix for the current law would be to simply make listing varieties optional and legalize unlisted varieties. While this seems to be favored by the Agricultural Ministers, most of us in opposition don’t agree this is a real solution. As long as there are lists of varieties categorized by DUS, these will always be in competition to farmers and others who grow and sell unlisted varieties. Unlisted varieties in this case will become second class, a situation similar to the US and Canada. It was of particular interest how this was addressed in the Advocate-General’s opinion.
First of all the Advocate-General said it is not legal to interpret EU or French Seed Laws as meaning you cannot sell unlisted varieties. YOU ARE ALLOWED TO SELL UNLISTED VARIETIES.
Secondly, the provisions of EU Seed Law that refer to the DUS standard are NOT VALID.
The Advocate-General then went on to use very strong language to back up this opinion; biodiversity, the principle of proportionality, freedom of enterprise within the meaning of Article 16 of the Charter of Fundamental Rights European Union, free movement of goods within the meaning of Article 34, principle of equal treatment within the meaning of Article 20, restriction of consumer choice. She really seemed to have a good understanding of the issues at hand, at least from the point of view of agriculture and biodiversity. She addressed many of the issues from multiple points of view.
This is potentially a very important ruling. A big thanks is due to Kokopelli’s lawyer who argued this case, Blanche Magarinos-Rey.
EU Seed Laws Struck Down by High Court…(not yet!)
[update: I've been told this is a prejudicial opinion, thus not yet the ruling of the court and not yet a binding decision. Hopefully we'll have a more concrete ruling later.]
Yesterday an EU Advocate-General sided with French seed organization Kokopelli on the provision in EU law prohibiting the sale of unregistered varieties.
In reference to EU seed laws and related French regulations, the Advocate-General said they
“violate the principle of proportionality, free enterprise, free movement of goods, and the principle of non discrimination.”
The Advocate-General said the official seed catalog has
“nothing to do with plant health”
and
“it is up to farmers to decide which varieties they grow”
the Advocate-General added
“the fact that farmers are confined to the listed varieties greatly reduces genetic diversity in European fields.”
Unfortunately the original opinion was written in German, and as of the time of this post had not yet been translated into English. You can read the opinion in a variety of non-English languages here.
Almost all of Kokopelli’s arguments were upheld, and most of the opposition’s arguments were not.
Reclaim the Seeds
Local seed and food organization Aseed is sponsoring a seed swap and local food fair. Bifurcated Carrots will be there with a stand on Saturday.
If you’re in the area, please come by! Entrance is free.
If you’re able to sponsor a stand or presentation on either day, please get in touch! You can either contact me, and I will put you in touch with the right person, or you can contact them directly via their websites. There is no cost to sponsor a stand. You can either give seeds and plants away at no cost, or you can sell them. You can also run an information only stand.
Australian Seedsavers Portuguese Tour
Margarida of the Portuguese Seed Savers recently sent an email to a mailing list I’m on, telling everyone about the visit to their country by the founders of the Australian Seedsavers. One of the coordinators of the Australian organization is Kate, known to some of you because she has a blog and visited some of us in Europe too.
Anyway, the Australian Seedsavers met more than 400 people in Portugal. They visited food gardens at several locations and taught workshops on collecting and saving seeds, traditional plant varieties, edible seeds, permaculture, activism and kitchen gardens in schools.
You can read more about this in Portuguese here, or in English here.
Another World is Plantable – Community Gardening in South Africa
I was looking around for other films made by Ella von der Haide, the same person who made Resilient Seed the film about our Brussels action last spring, and I came across this. What a find! This is a really interesting look into Community Gardens in South Africa, and the sorts of problems they face.
