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EU Seed Law: Briefing Paper

Austrian organizations Arche Noah and Global 2000 have circulated a briefing paper on the pending seed law, and with their permission I’m publishing it here.  Formatting is limited in a blog post.  Click here to download the original paper with original formatting.

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EU-Seed Law: Introducing the biodiversity perspective
A first glance at the Commission Proposal for the EU regulation on the marketing of plant reproductive material
May 2013

In this paper, ARCHE NOAH gives a short summary on the most urgent remarks and concerns on the Proposal of the European Commission for a Regulation on plant reproductive material (1) (PRM) from a seed savers’ point of view and with special regards to agricultural biodiversity.

ARCHE NOAH (Noah’s Ark) is a seed savers association in Central Europe, founded in 1990, with today more than 10.000 members, who closely and actively follows the process of review of the PRM law. Arche Noah is politically active in Austria and in Brussels. www.arche-noah.at

GLOBAL 2000 (Friends of the Earth Austria) is an independent Austrian environmental organization. Since 1982, GLOBAL 2000 has been working on controversial social themes to uncover potential hazards for humans and the environment. www.global2000.at

The PRM regulation’s hitches at a glance

The scope of the legislation goes beyond the commercial sector

Problem: In the present legislation, the scope of the directives is limited to the dissemination of seeds and other propagation material for the purpose of commercial exploitation. The new text applies to any form of transfer of plant reproductive material, broadening the scope of the legislation.

Solution: The words “aiming at commercial exploitation”, which have been deleted from the present legislation, must be reintroduced in the definitions (article 3). Limiting the scope of the PRM law to commercial activities would solve some problems mentioned in this paper.

Basically there is no founded justification to have a PRM regulation at all. Abolishing the existing rules and simply include the sector within the existing logic of controls of the food chain would suffice.

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Private exchanges of seeds, grafts and other PRM restricted

Problem: Article 2 restricts private activities to seed swap in kind. As soon as individuals would like to swap PRM against money, they enter into the category of “Niche Market”, having to fulfil all the obligations of article 36, comprising many pages of small print legalese.

Solution: The exchange of seeds and other plant reproductive material between individuals must be excluded totally from the scope of the regulation.

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Diversity farmers face administrative penalties – the “operator”

Problem: Any farmer who wants to make available PRM must register as an “operator” (Article 3.6), must fulfil requirements for quality management and traceability (Articles 5-8) and must pay yearly fees of unknown amount. No adequate exceptions are foreseen for farmers who want to pass on PRM from their own harvest. The exception in article 36 (“niche markets”) is insufficient.

Solution:
Since the very beginning of agriculture, farmers have selected and re-used seeds for the following season. It is absolutely disproportional to marginalise and threaten these activities with administrative burdens and penalties. The exchange of PRM between farmers and between farmers and individuals must be excluded totally from the scope of the regulation.


Back to Stone Age!

Franziska has heard about a seed and plant swap in her neighbourhood. She is curious to get some seeds for her balcony. She has no own seeds to give, and offers EUR 3 .- to a lady in exchange for two handmade seed packages. But she has to learn that this would be illegal . The seeds – if sold – would have to meet specific requirements and distinct labelling. That ́s just too complicated, the lady with the seeds says. Franziska feels ashamed to ask for the seeds for free. She leaves without seeds and very disappointed. Pay the penalty!

Jack is a passionate diversity farmer . He cultivates a large number of rare varieties of tomatoes on his farm. He markets the fruits on a farmers market. Many of the rare seeds he cannot buy, and he has to save his own seeds. In springtime on the farmers market, many of his customers ask for seeds and seedlings. They know Jack and trust the quality of his products. However, Jack may not pass on – otherwise he might face an administrative penalty. That is because he operates his labour-intensive farm with 11 employees =annual work units. Thus, the exception for niche markets (Art. 36) does not apply to him.

(3)

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Disproportionate and inapplicable

Problem: As a consequence, thousands of infractions to this legislation would happen each year. This regulation would criminalise a large, innocent and not sufficiently informed part of our society. Such rules which are not proportionate would unduly create a black market.

Solution: All small farmers and individuals producing PRM have to be exempted from the scope.

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ALL species and genera are affected now

Problem: Even for very rare crops with little or no economic importance, so-called “basic requirements” on quality and labelling have to be fulfilled (Articles 47-50). Further hurdle: If a species is not listed in Annex 1, it is forbidden to make it available under a name – unless an official(ly recognised) description of the variety is registered (Article 50)!

Solution: No obligatory registration and certification for seeds and other PRM that is open pollinating and not protected by a private intellectual property right (IPR).

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Deficiencies with regards to Democracy and the principle of subsidiarity

Problem: 39 important legal issues – e.g. amending Annex 1 – shall be decided by the commission arbitrarily by delegated acts.

Solution: Delete all delegated acts foreseen. Keep space for national derogations which allow adaptations to regional situations.

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The notion of a variety: A constraint to biodiversity

Problem: The variety is a technical and juridical concept closely linked with the notions of distinctiveness, uniformity and stability (Articles 60-62). It is not a natural condition of any wild or cultivated plant, because it is essential for evolution that living organisms are not uniform and able to develop (not stable).

Solution: Don’t stick to juridical concepts, accept nature.

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DUS and VCU tests – an obstacle for organic breeders

Problem: The DUS tests (“distinctiveness, uniformity and stability”) and – for agricultural crops – VCU test (“value for cultivation and use”) are biological and technical obstacles to the access on the market for varieties aimed at production in agro-ecological systems. The proposed “sustainable VCU” (article 59) and “heterogeneous material” (article 14.3) are very vague.  Important details are left to delegated acts.

Solution: Concrete solutions that allow working with genetically diverse and adaptable varieties were delivered by the European Consortium of Organic Plant Breeders (EcoPB) (2)  and IFOAM-EU.

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Regarding transparency…

Problem:
The compulsory registration of varieties is reasoned with the goal of transparency on the market. However, the register does not guarantee that a listed variety is really available and cannot inform the consumer about the performance to be expected under local conditions. Concerning the genealogy of a variety, confidentiality will be granted to breeders on their demand (Article 75).

 Solution: Transparency can more easily be achieved by labelling similar to an operator’s label without registration and Official catalogue.

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“Officially Recognised Description”- a very limited niche

Problem: The simplified registration (Article 57) is open only for varieties that were available on the market before the entry into force of the regulation (“historical limitation”). There are many plant types that were only used locally and were never available on the market. Also, one or more “region(s) of origin” must be defined (“geographic limitation”). This is nonsense: hardly any major crop originated from Europe, neither wheat nor apple nor tomato. Plants have always moved and must continue (climate change, increased biodiversity).

Solution: Delete the historical and geographic limitations. The simplified registration must be re-opened to all open pollinating plants which are not protected by IPRs.

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Article 36 “Niche markets”

Problem: Article 36 provides exceptions for seeds and other PRM from registration. These exceptions only apply to small quantities of PRM. Professional operators can only make use of this exception if they have less than 10 employees and a turnover of less than EUR 2 million. The seeds/other PRM must fulfil labelling requirements and comply with requirements on quality, which has a financial and technical cost.

Solution: All small farmers (as defined in art. 8 (2) of Reg. 1765/92) and any private person have to be exempted from the scope of the regulation.

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Notes:

1)  Proposal of the European Commission’s Directorate General for Health and Consumers (DG SANCO) for a Regulation on the production and making available on the market of plant reproductive material (plant reproductive material law) published on May 6th 2013. COM(2013) 262 final – 2013/0137 (COD)
2)  http://www.eco-pb.org/fileadmin/ecopb/documents/ECOPB_Position_EUSeedLawRevision_120530.pdf
3)  The stories in the box are real. The names were changed.


Summary: Our main demands to the decision makers

Concerning promoting agro-biodiversity:

  • No obligatory registration and certification for seeds and other plant reproductive material (PRM) that is open pollinating and not protected by a private intellectual property right (IPR).
  • Re-Open registration based on officially recognized description to all varieties; delete all geographic, historical and quantitative restrictions

 

Concerning promoting democracy and farmers’ rights:

  • The scope of the regulation must be limited to the marketing of PRM with a view to commercial exploitation
  • All small farmers producing PRM have to be exempted from the scope
  • The exchange of seeds and other plant reproductive material between farmers and between farmers and individuals must be excluded from the scope of the regulation;
  • Delegated acts: No delegated acts at all. Everything has to be inside a single legal act.

 

Concerning promong consumers ́ choice and transparency:

  • Ensure that open pollinating varieties and seeds bred for organic farming or specific local conditions are not discriminated by norms of (even voluntary) registration, certification and plant health requirements.
  • Micro and small enterprises shall only comply with basic rules concerning the operators as long as they are not dealing with GMO or with PRM protected by IPRs
  • (Plant Variety Rights or patents).
  • Ensure transparency on breeding methods and Intellectual Property Rights (IPRs) associated with registered varieties and plants.

Contact us:

Brussels:

Pierre Sultana
pierre.sultana[at]arche-noah.at
+32 (0) 493 11 89 72
EN, FR, DE

Austria:

Iga Niznik
iga.niznik[at]arche-noah.at
+43 (0) 650 999 13 05
DE, EN, FR, PL

Austria:

Heidemarie Porstner
heidemarie.porstner[at]global2000.at
+43 (0) 699 142 000 52
DE, EN

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AGRI Committee Discussion

Yesterday the AGRI (Agriculture and Rural Development) committee of the EU Parliament held a meeting and announced their assuming responsibility for the new EU seed legislation. Together with this announcement was a presentation by the EU Commission on their entire package of legislation, of which the seed law is a part. After a very long presentation, there were some comments from the other Parliamentarians who were given 3 minutes each to give comments on a very complex topic. They discussed it for an hour and a half, and the file is 407Mb, which you can download and watch here.

Lots of Problems!

Many of the problems of the legislation were visible in the discussion.  The first is complexity, and using this to create confusion and distract from the real issues.  If you want to see confusion already intentionally created, have a look at the Google search result for criminalized seeds.  While you’re at it, have a look at some of the websites that are sources of that confusion, and think about their connections with the larger seed companies.

After creating all that confusion, they gave others participating in that meeting 3 minutes each to respond.  There were a couple of good responses too.

The EU Commission is just playing the same game.  Making the comparison with horse meat.  What does seed purity have to do with horse meat?  Nothing, but it’s on the minds of the European public, and so it’s a good way to provoke an emotional response.  Then comes everything they are doing for the benefit for micro-enterprises, reducing red tape and preserving old varieties.

The reality is there’s nothing in their presentation of the plant reproductive material (PRM) that has any value for consumer safety.  The most helpful thing they could do for micro-enterprises and preserving old varieties would be to completely scrap the legislation.

The entire purpose of the legislation is to create a marketing advantage for larger seed companies, then export that advantage via trade agreements the EU has with other countries.  It doesn’t matter if there are a few small exceptions for older varieties or micro-enterprises, the entire piece of legislation is flawed.  Even if these exceptions are written into the legislation, ‘delegated acts’ mean large parts of the legislation could be completely rewritten later, and local governments could impose new restrictions.  If any sort of official system of registration exists, it will always be tempting for governments to create an advantage for those varieties.

If you buy a car or a house, do you expect them to all be distinct, uniform and stable (DUS)?  EU seed marketing is virtually the only economic sector, anywhere in the world, that has pre-marketing controls requiring consumers be given as restricted a choice as possible.

Red Tape

Supposedly the purpose of this regulation is to reduce red tape.  There are likely hundreds or even thousands of people working full time across Europe administering the current seed laws.  These are very talented and skilled people, who have something very valuable to offer to the people of Europe.  Why not let them work on biodiversity or local agriculture projects?

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EU Seed Law: Niche Market PRM

In the final Commission draft of the EU seed law is a provision for niche varieties:

Article 36

Derogations from registration requirements in the case of niche market plant reproductive material

1. Article 14(1) shall not apply to plant reproductive material where all of the following conditions are fulfilled:

(a) it is made available on the market in small quantities by persons other than professional operators, or by professional operators employing no more than ten persons and whose annual turnover or balance sheet total does not exceed EUR 2 million;

(b) it is labelled with the indication ‘niche market material’.
That plant reproductive material is hereinafter referred to as ‘niche market material’.

2. The persons who produce niche market material shall keep records of the quantities of the material produced and made available on the market, per genera, species or type of material. On request, they shall make those records available to the competent authorities.

3. The Commission shall be empowered to adopt delegated acts, in accordance with Article 140, setting out, with regard to the production and making available on the market of niche material belonging to particular genera or species, one or more of the following:

(a) the maximum size of packages, containers or bundles;

(b) requirements concerning traceability, lots and labelling of the niche market material concerned.

(c) modalities of making available on the market.

This provision has sparked quite some discussion in the past few days, all over Europe.  The emergence of this provision came as a surprise, and now people are starting to think about how it will affect everyone.

10 persons and annual turnover or balance sheet total does not exceed EUR 2 million

This is the sticking point.  On one hand this seems to provide a nice exception for small farmers and seed companies, but on the other seems to cause some problems.

In the Netherlands, 2 small independent seed companies fall over this limit, as do other small independent seed companies in other countries like Franchi in Italy.

In the UK, small seed company Real Seeds has expressed concern, because their business depends on supplier relationships with larger seed companies.  The Soil Association has publicly expressed concern because large investment is often need to develop new seed varieties, and smaller companies may not have the capacity to adequately do this.

Protecting Small Businesses

The original thought when this exemption was proposed was to reduce the red tape for smaller companies, but another purpose has emerged.  If larger companies could not produce or sell niche market material, it also protects smaller businesses from competition from larger ones.

There is a big problem worldwide that we depend on a very small number of seed companies for virtually all of our seed, and this could provide a nice launching point for small businesses into the market.

Flawed Principles of Registration

There is widespread belief that the system of seed registration is seriously flawed to begin with, and a small exception like niche varieties is not enough.  Instead there should be no mandatory registration for anyone, regardless of size.

Delegated Acts

However nice this provision may be in the regulation, the delegated acts in section 3 could completely undermine the entire article at any moment.

Getting Around the Limit

In my opinion, this is not a very hard limit.  For example if a company is a little too large, they could form a holding company and 2 or more subsidiaries.  This would be feasible for a small company, but less feasible for the very largest of seed companies.

I think seed could also probably be produced by foreign companies, then imported.

What Shall We Do?

Shall we keep this provision?  Shall we scrap mandatory registration, then make this derogation unnecessary?  Should we change the limit?  Shall we keep this provision, but get rid of the delegated acts?

I personally think there’s a lot to be said for getting rid of mandatory registration for all non-GMO open pollinated varieties. The entire system of registration is seriously flawed.  It’s not just seeds that are registered, but the entire supply chain, and in the end member states can impose even more restrictions if they want.

I also think there’s an argument for keeping this provision in order to protect smaller companies, but perhaps with some changes to fix obvious problems.