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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.

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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.

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New Dutch Language Blog

I’ve started a new Dutch language blog.  I’m mentioning it here mostly so Google will find it and start indexing it.  I don’t think it’s going to be of great interest to many people here, even those of you who speak Dutch.  You’re all welcome to stop by of course, and Google translate may be enough for you to read and understand most of it.

What’s the reason for this blog?

Since you asked, let me try to explain…

My community garden, called ‘Vlijtigveld’ (meaning busy or diligent field), has a racist and not very smart management.  The name really says it all, almost in a comical way.  What’s an organic gardener like me doing trying to have a lazy no-dig garden, with mulch to control weeds, in a place where we’re all supposed to be working hard??

Anyway, for 4 years now I’ve been trying to ignore the fact the management doesn’t recognize any gardening technique that’s not heavily reliant on sprays or chemical fertilizers, or any gardener that doesn’t control weeds by killing them with chemical warfare or pulling them out one at a time.

I’ve also been trying to ignore the garden management as they walk around telling any one who’ll listen about how they don’t let in any more Turkish gardeners, or how 60% of the gardeners have to be Dutch or the foreigners will get voting rights.  It’s us against them, don’t you know!  In this time I’ve been pretending not to notice our perimeter security fence, designed with a weak side, meaning whenever there is a break-in and a garden is vandalized, it will almost certainly belong to a Muslim gardener.

Literally, all our gardens are assigned based on ethnic origin, and the layout of the complex is planned on this basis.  Because the management doesn’t want any of us teaming up against them, they avoid assigning friends adjacent gardens, and try to promote friction by assigning nearby gardens to people of conflicting ethnic origins.

Anyway, as we can all imagine, this isn’t working very well.  It’s not working because it’s as much comical as anything else.  The gardeners are all mostly getting along and becoming friends.  The management has mostly lost the respect of everyone, Dutch and foreign.  This has recently prompted a great deal of hostility from the management, gardeners are now frequently harassed by the management and often threatened with the loss of their gardens.  Our drinking water was recently cut off!  You’d think it was war.

So, I really don’t have the time or inclination to try to solve all the problems of our community gardens.  I have no desire to join the management and try to ‘fix it’ from within.  Other than a little passive aggressiveness, I’ve really been trying to keep my head down.

I want the other gardeners to get together and decide what kind of community gardens they want to have, work for it themselves, possibly with my help.  To that end, I decided to start a blog to provide the gardeners, as well as anyone else with an interest in Vlijtigveld more information.  As well as information it will have the views of myself, the sole American gardener.  I think mostly the blog will have a lot of detailed information about how the rules are constructed, and how Dutch law might provide some help.  I’ve exchanged some letters with the garden management, and I intend to publish these.  It’s probably not going to make a lot of sense to most readers, but if you’re interested you’re welcome!

Luck was with me when I went searching for a domain name for this new blog.  ‘Their’ domain name, vlijtigveld.nl was not in use and available for registration, so this blog is at http://vlijtigveld.nl  The management are not really Internet people, so it may be some time before they notice the existence of the blog…

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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.

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Open Tap for Anitibiotics in US Agriculture

It’s a busy Christmas for politicians this year!  Lots of things seem to be being sneaked through during the holiday season.  I posted a few days ago about the announcement of a GM corn trial in Belgium, and now I’ve come across this quiet announcement by the FDA in the US that they are formally giving up trying to regulate the routine feeding of antibiotics to livestock in the US.  It’s not like they’ve been doing much in the past, but now it’s official.

Supposedly, Europe is going in a different direction, but I’m not sure that really means anything.  Now the routine feeding of antibiotics as a growth stimulant is forbidden, but all that means is farmers have to say it’s necessary for something else, and can continue to use them.  Maybe all routine use will be prohibited, but this is far from a done deal.