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.

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.

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.

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.

I first wrote about this cauliflower 6 years ago.  Bayu who lives in Indonesia left a comment asking if I had any spare seeds I would send for free, but I don’t have these any more.  Does anyone have some seeds, or would like to buy some seeds, and send them to Indonesia for free?  If so, please let me know and I’ll forward the email address.

These are pretty ordinary seeds.  If you live in the US, they are available for example at Baker Creek.  There are similar varieties with different names, so if you have something that looks the same it probably is.

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.

Thanks to Mike who mentioned these videos in a comment on my last post.  These videos are of Dan Jason of Salt Spring Seeds and The Plant Sanctuary for Canada, and Owen Bridge of Annapolis Valley Seeds, representing Canada’s two coasts at a Seedy Sunday event from earlier this year.

It’s really a great example on how in different parts of the world we have slightly different battles and laws, but in the end our overall problems and goals are the same.  Here is Europe we are fighting the battle of legalizing seed saving, but in North America they’re not only fighting to keep seed saving legal, but also facing the real prospect of aggressive police action if they are unsuccessful.

Recently some laws were changed in Canada and other parts of the world like Europe to protect the pharmaceutical industry from the competition of natural foods and herbal remedies.  This resulted in raids in Canada where unlicensed vitamins were confiscated by swat teams at gunpoint.  It’s very possible heirloom seed companies will one day see their stocks of seeds confiscated in the same way.

We all need to act locally and think globally.  We should grow seeds in our own gardens that are locally obtained and suitable for our local climate, but we shouldn’t forget seeds can be obtained elsewhere if necessary.  In the same way, we should be fighting our own battles locally, but not forgetting there’s a whole world out there with other people fighting the same battle.

This is the English version, and they’ve promised to make versions in other languages as time permits.  Especially as someone who participated, it’s really nice to watch the film and think back on a great weekend, with great people, that so many worked so hard to organize.

Untitled from sab inee on Vimeo.

*GATHERING CALL *
*Thursday 20 October 2011 from 12.00 pm to 2.00 pm*
*In front of the UPOV**building*
*(Union internationale pour la protection des obtentions végétales)*
*34, Chemin des Colombettes – Geneva*

*For the immediate recognition of farmers’ right to re-use and Exchange freely their seeds, to protect them from biopiracy and contaminations from patented genes. No to seeds multinationals’ grip!*

*No to the 1991 Proprietary Variety Protection Act, to any form of patent on plants, part of plants, their genes or extraction processes.*

Since 1991, the UPOV seeks to forbid farmers to use part of their own crop for seeds, or to force them to pay royalties to companies holding a Plant Variety Certificate. Yet, any of the seeds sold by the industry is still a product of seeds collected at no cost in the fields of farmers who have selected and preserved for millennia all food plants we feed on to this day. The Convention on Biological Diversity did introduce in 1992 in Rio the principle of a fair sharing of advantages which should force companies to pay farmer’s whose seeds were used as resources. Today, the UPOV seeks to apply at any rate its reverse sharing where it is the bio-pirated farmer who has to pay the bio-pirate!

*Yet, the right of farmers to re-use and exchange their seeds is essential for crops’ adaptation to climate change and local adaptation, which is the only way to decrease the use of chemical fertilizers and pesticides. It ensures the security of seeds stocks and thus of food security. *

The growing number of patents on natural genes, muted or manipulated, of commercial seeds already protected by Plant Variety Certificate reinforces further the confiscation of all seeds of our planet by a handful of seeds multinationals that seize peoples’ right to food. The detrimental alliance of the UPOV and the Patents Office threatens directly food sovereignty.

*Come on and join us:*

*Farming Mystica, theatrical sketches, pacific and militant actions are awaiting you there!*

Contacts :

Uniterre, Swiss member of the European Coordination Via Campesina +41 21 601 74 67 www.uniterre.ch
European Coordination Via Campesina Rue de la Sablonnière 18- 1000 Bruxelles-Belgium- www.eurovia.org

Please RSVP

For those of you who filled in or are interested in the online questionnaire concerning the review of EU seed legislation I posted about here, you can read everyone’s answers here.

I think it makes quite interesting reading, and it shows how your voice can really be heard if you take the time to participate in something like this.

All I can say is it looks great to me! I think if anyone would like to help out with a donation or tips or pointers, he would like to hear from you.

The spoken language is French, with English subtitles.

If you wish to download a version to play directly on your own computer, you can do that here. The original video without embedded subtitles can be downloaded here.