Key Benefits:
The National Assembly and the Senate adopted,
The President of the Republic enacts the following legislation:
I. ― The second part of the intellectual property code is thus amended:
1° Chapter II of Book IV title I reads as follows:
“Chapter II
"The National Plant Breeding Authority
"Art. L. 412-1. - A public interest group, including the State and the National Institute of Agricultural Research, is responsible for the functions of a national body for plant varieties. As such, he is responsible for:
« 1° To apply the laws and regulations relating to the protection of plant varieties and, in particular, to issue the certificate referred to in Article L. 623-4;
« 2° To support the State in the development of national regulations and international agreements on plant varieties.
"The person in charge of the public interest group of the missions under the National Plant Breeding Authority is appointed by the Minister responsible for agriculture. It shall make the decisions set out in this Code for the issuance, release or maintenance of plant certificates. It performs its functions independently of any hierarchical or guardianship authority. » ;
2° At the end of the last paragraph of Article L. 623-16, the words: "to a special section of the budget of the National Institute for Agricultural Research" are replaced by the words: "to the public interest group referred to in Article L. 412-1".
II. ∙ Chapter III of Book VI II of the same Part is amended to read:
1° In the first sentence of Article L. 623-7, the words: "The Committee for the Protection of Plant Breeding" are replaced by the words: "the body";
2° In sections L. 623-8 and L. 623-19 and in the second paragraph of section L. 623-31, the words: "of the plant breed protection committee" are replaced by the words: "of the body referred to in section L. 412-1";
3° In the first sentence of the last paragraph of Article L. 623-23 and in the second paragraph of Article L. 623-24, the words: "the Committee for the Protection of Plant Breeding" are replaced by the words: "the body referred to in Article L. 412-1".
Chapter I of Book VI title VI of the Rural Code and Maritime Fisheries is supplemented by sections 3 and 4 of the title:
“Section 3
"Seeds and materials for the multiplication of plants other than woods and vines and forest materials for reproduction
"Art. L. 661-8.-The rules relating to the selection, production, protection, treatment, circulation, distribution, storage and marketing of seeds, plant multiplication materials, plants and plants or parts of plants intended to be planted or planted, other than the vegetative multiplication materials of the vine and the forest materials of reproduction, below referred to as "materials", are fixed by decrees. This decree establishes:
« 1° The conditions under which these materials are selected, produced, multiplied and, where appropriate, certified, taking into account the different modes of reproduction;
« 2° The conditions for registration in the Official Catalogue of the different categories of varieties whose materials can be marketed;
« 3° The rules to ensure traceability of products from the producer to the consumer.
"Art. L. 661-9.-Any natural or legal person engaged in the production, protection, processing or marketing of the materials referred to in Article L. 661-8 shall declare its activity to the competent authority for control.
"However, activities exclusively for the multiplication of seeds on behalf of third parties can be dispensed by decree of this obligation.
"Art. L. 661-10.-In the conditions imposed by European regulations, natural or legal persons carrying out the activities referred to in Article L. 661-8 may be required to establish, for these activities, an internal control procedure that is subordinate to supervision by the competent authority for the control and, where applicable, to the recognition of its laboratory under Article L. 661-15.
"When European regulation provides, suppliers of the materials referred to in Article L. 661-8 shall be subject to approval or authorization under conditions fixed by decree in the Council of State.
"Art. L. 661-11.-I. ― The supervision by professionals of the rules established under this section shall be carried out by the officers referred to in Article L. 250-2 and the officers of other competent authorities for the control designated by order of the Minister responsible for agriculture and providing the necessary competence, impartiality and independence guarantees for the exercise of this mission. These officers have access, where they are for professional use, to premises, premises and facilities, excluding premises and parts of premises for residential use, as well as to means of transportation, between eight hours and twenty hours or outside of those hours when access to the public is authorized or an activity referred to in section L. 661-8 is in progress.
"Where the access of the premises referred to in the first paragraph of this section is denied to the officers, or where the premises include parts for use of the dwelling, access may be authorized by order of the judge of freedoms and detention in the forms and conditions prescribed in section L. 206-1.
“II. – For the performance of their missions, they may, on site or on summons, take a copy of all professional documents, regardless of the support, and collect any comments from any person present who may provide useful elements to their missions.
"They can collect or take samples under their control for analysis.
"The costs incurred during the checks, including the cost of analysis and sampling, are borne by the persons referred to in section L. 661-9.
"Art. L. 661-12.-When the controls show that equipment referred to in Article L. 661-8 is not in conformity with the rules made under this same article, the officers of the competent authority for the control shall keep the professionals in compliance with the provisions in force within a specified period of time. If it is not satisfied with the retention period, these officers shall propose to the competent authority for the control to prohibit the commercialization of the materials in question and may propose the suspension or withdrawal of the approval or authorization provided for in Article L. 661-10. In the event of a particular serious breach, the judge of freedoms and detention may, at the request of the competent authority for control, order the destruction of non-compliant products.
"Art. L. 661-13.- Materials may not be imported from third countries to the European Union or to the European Economic Area if they do not meet quality standards equivalent to those set for materials produced or marketed in the European Union. In the event of non-compliance, the agents referred to in section L. 250-2 may order the refoulement of plant multiplication materials, plants or plants imported or prescribing any appropriate measures, carried out at the importer's expense.
"The execution of all or part of the control operations provided for in the first paragraph of this Article may be entrusted by the administrative authority and under its responsibility to the other competent authorities for the control referred to in Article L. 661-11.
“Section 4
“Laboratories
"Art. L. 661-14.-The monitoring of compliance with the provisions of sections 2 and 3 of this chapter is carried out, inter alia, through laboratory analysis.
"These analyses are authorized to be carried out:
« 1° Laboratories approved for this purpose by the administrative authority;
« 2° National reference laboratories defined in Article L. 661-16.
"Art. L. 661-15.-Laboratories conducting self-control analyses may be submitted by the competent authority for control to a qualification recognition procedure in accordance with the terms defined by the Minister for Agriculture.
"Art. L. 661-16.-The Minister for Agriculture may designate national reference laboratories that are responsible for the development, optimization, validation of analytical methods, development and proposal to the competent authority for the control of sampling protocols, participation in the standardization and technical supervision of the network of approved and recognized laboratories.
"Art. L. 661-17.-Accredited or recognized laboratories are required to submit, at their own costs and at any time, to check the conditions of their approval or recognition.
"Art. L. 661-18.-The terms and conditions of application of this section are set by decree in the Council of State. »
Article L. 623-1 of the Intellectual Property Code is read as follows:
"Art. L. 623-1.-For the purposes of this chapter, constitutes a "variety" a plant set of the lowest known botanical taxon that may be:
« 1° Defined by the expression of characters resulting from a certain genotype or combination of genotypes;
« 2° Distinguished from any other plant set by the expression of at least one of these characters;
« 3° Considered as an entity in view of its ability to be replicated in accordance with the law. »
I. ― Article L. 623-2 of the same code is as follows:
"Art. L. 623-2. - For the application of this chapter, is called "get plant" the new variety created which:
« 1° It is clearly distinguished from any other variety whose existence, on the date of filing of the application, is notoriously known;
« 2° Is homogeneous, that is, sufficiently uniform in its relevant characters, subject to predictable variation given the particularities of its sex reproduction or its vegetative multiplication;
« 3° Stable remains, i.e. identical to its initial definition following its successive reproductions or multiplications or, in the case of a particular breeding or multiplication cycle, at the end of each cycle. »
II. ― At Article L. 623-3 and at the end of the first paragraph of Article L. 623-12 of the same code, the reference: "L. 623-1" is replaced by the reference: "L. 623-2".
Article L. 623-4 of the same code is as follows:
"Art. L. 623-4. - I. ― Any plant obtaining may be the subject of a title called "plant certificate" that confers on its owner an exclusive right to produce, reproduce, condition for reproduction or multiplication, offer for sale, sell or market in any other form, export, import or hold for any of these purposes any reproduction material or multiplication of the protected variety.
"II. ― Where the products mentioned in 1° and 2° of this II have been obtained by the unauthorized use of reproduction material or the multiplication of the protected variety, the exclusive right shall extend, unless the breeder has reasonably been able to exercise his right to the products in question:
« 1° The product of the harvest, including whole plants and plant parts;
« 2° Products manufactured directly from a crop product of the protected variety.
"III. ― The licensee's exclusive right extends:
« 1° Varieties that do not differ significantly from the protected variety within the meaning of Article L. 623-2;
« 2° To varieties whose production requires repeated use of the protected variety;
« 3° To varieties essentially derived from the protected variety within the meaning of the same article L. 623-2, where this variety is not itself a essentially derivative variety.
"IV. ― Constitutes a variety essentially derived from another variety, known as "original variety", a variety that:
« 1° is mainly derived from the original variety or variety which is itself primarily derived from the original variety;
« 2° differs significantly from the original variety within the meaning of article L. 623-2;
« 3° Except for differences resulting from derivation, conforms to the original variety in the expression of the essential characters resulting from the genotype or combination of the original variety genotypes. »
After article L. 623-4 of the same code, an article L. 623-4-1 is inserted as follows:
"Art. L. 623-4-1. - I. The licensee's right does not extend:
« 1° Private acts for non-professional or non-commercial purposes;
« 2° To acts performed on an experimental basis;
« 3° For acts performed for the purpose of creating a new variety or for acts referred to in I of Article L. 623-4 relating to this new variety, unless the III and IV of that section are applicable.
“II. ― The licensee's right does not extend to acts relating to its variety or variety essentially derived from its variety, or a variety that does not differ significantly, where the material of that variety or material derived from it has been sold or marketed in any form by the licensee or with its consent.
"However, the licensee's right remains when these acts:
« 1° Implicate a new reproduction or multiplication of the variety involved;
« 2° Implicate an export to a country that does not apply protection of intellectual property to varieties belonging to the same plant species of material of the variety to reproduce it, unless the material exported is intended, as such, to human or animal consumption. »
Article L. 623-5 of the same code is as follows:
"Art. L. 623-5. - I. ― Where vegetative reproduction or multiplication material or a crop product has been sold or handed over to third parties in any form by the breeder or with his consent, for the purpose of exploiting the variety, for more than twelve months in the French territory or in the territory of the European Economic Area, the variety is not known to be new.
"When this sale by the breeder or with his or her consent or surrender to third parties took place in another territory, for the purpose of exploiting the variety, for more than four years before the date of filing the application for a plant certificate, or in the case of trees and vines for more than six years before that date, the variety is not considered new.
“II. ― are not considered to be a surrender to third parties within the meaning of I the surrender for regulatory purposes of the variety to an official or officially authorized body, the surrender to third parties for the purpose of experimentation or presentation in an officially recognized exhibition, subject to, in the latter two cases, that the obstructor expressly stipulated the prohibition of commercially exploiting the variety of which the material has been delivered. »
Article L. 623-6 of the same code is as follows:
"Art. L. 623-6. - A plant certificate may be requested by any person from a State Party to the International Convention for the Protection of Plant Breeding and by any person from a Member State of the European Community or having his domicile, seat or establishment in any of these States.
"The person requesting a certificate of obtaining may, at the time of filing in France of this application, claim the benefit of the priority of the first application previously filed for the same variety in one of the said States by itself or by its author, provided that the deposit made in France is not more than twelve months after that of the first application.
"The novelty, within the meaning of Article L. 623-5, of a variety whose application benefits from the priority as defined in the second paragraph of this section is appraised at the date of the filing of the priority application.
"In addition to the cases provided for in the first paragraph, a foreigner may benefit from the protection established by this chapter provided that the French enjoy the reciprocity of protection on the part of the State of which he is a national or in which he has his domicile, siege or establishment. »
The second paragraph of Article L. 623-12 of the same code is as follows:
"However, the body referred to in Article L. 412-1 may hold sufficient screening in another State Party to the International Convention for the Protection of Plant Breeding. The same body may take into account the examination conducted by the breeder or his cause. »
Article L. 623-14 of the same code is as follows:
"Art. L. 623-14. - Applications for plant certificates, acts issuing the certificate as well as any acts transmitting or amending the rights attached to a certificate application or certificate are only applicable to third parties if they have been regularly published under conditions provided by decree in the Council of State. »
At the end of the first paragraph and the first sentence of the penultimate paragraph of Article L. 623-15 of the same code, the words: "from Paris on 2 December 1961" are replaced by the words: "international for the protection of plant varieties".
After article L. 623-22-2 of the same code, articles L. 623-22-3 and L. 623-22-4 are inserted as follows:
"Art. L. 623-22-3. - Any person under public law or private law may obtain a compulsory licence under the conditions set out in this section and section L. 623-22-4.
"The application for a compulsory licence shall be filed with the court of large instance at the place of situation of the holder of the right. It must be accompanied by the justification that:
« 1° The applicant was unable to obtain a licence within one year of the date of the application to the certificate holder;
« 2° That it is in a position to exploit the variety in a serious and effective manner;
« 3° That the licence is of public interest in, inter alia, the notorious lack of supply of the agricultural market affected by this variety.
"The application for a mandatory licence may be submitted, under the conditions set out in the second to fifth paragraphs of this section, by the holder of the certificate issued for a variety essentially derived from a protected variety that has not been able to obtain from the holder of the certificate of the original variety the authorizations necessary to operate its own variety.
"The holder of the certificate protecting the original variety may obtain, under the same conditions, a licence from the certificate protecting the essentially derived variety. The mandatory licence is non-exclusive. In particular, the court determines its duration, scope and amount of royalties to which it gives rise.
"These conditions may be amended by the court at the request of the licensee or the Licensee.
"If the licensee of a mandatory licence does not meet the conditions under which the licence was granted, the holder of the certificate of obtaining and, where applicable, the other Licensees may obtain from the court the withdrawal of the licence.
"Art. L. 623-22-4. - The rights attached to a compulsory licence may not be transferred or transferred, except with the company or part of the undertaking to which they are attached.
"This assignment or transmission is, barely null and void, subject to the authorization of the court. »
At the 1st of article L. 623-23 of the same code, the words: ", such as seeds, cuttings, grafts, rhizomes, tubers," are deleted.
After the same article L. 623-23, an article L. 623-23-1 is inserted as follows:
"Art. L. 623-23-1. - The vegetal certificate is declared null by court decision if it is proven:
« 1° Either it was attributed to a person who was not entitled to it, unless it was transferred to the person entitled to it;
« 2° Either the date on which the variety was issued did not meet the conditions referred to in section L. 623-2. »
Article L. 623-24 of the same code is supplemented by a paragraph as follows:
"Article L. 611-7 is also applicable to plant certificates, with inventions understood as obtainings, patents such as plant certificates and conciliation commission as established by a decree specific to the particular field of plant varieties. »
After section 2 of chapter III of title II of Book VI of the same code, a section 2 bis is inserted as follows:
“Section 2 bis
« Farm seeds
"Art. L. 623-24-1. - By derogation from Article L. 623-4, for the species listed in Council Regulation (EC) No 2100/94 of 27 July 1994 establishing a regime of community protection of plant varieties as well as for other species that can be listed by decree in Council of State, the farmers have the right to use on their own exploitation, without the permission of the breeder, for purposes of reproduction or multiplication,
"Art. L. 623-24-2. - Except for small farmers within the meaning of Council Regulation (EC) No. 2100/94 of 27 July 1994, the farmer shall pay compensation to the holders of the plant certificates of which he uses the varieties.
"Art. L. 623-24-3. - Where there is no contract between the holder of the plant certificate and the farmer concerned or between one or more holders of plant certificates and a group of farmers concerned, or an interprofessional agreement entered into under the conditions set out in chapter II of title III of Book VI of the rural code and of the marine fisheries, the conditions for the application of the exemption set out in article-24-1
"Art. L. 623-24-4. - When farmers use service providers to sort their seeds, these sorting operations must be carried out under conditions to ensure the traceability of products from varieties certified to plant.
"In case of non-compliance with these conditions, seed is deemed to be marketed and considered as a counterfeit within the meaning of section L. 623-25.
"Art. L. 623-24-5. - Failure by farmers to comply with the conditions of application of the exemption set out in Article L. 623-24-1 makes them lose the benefit of the provisions of this section. »
The first three paragraphs of Article L. 623-25 of the Intellectual Property Code are replaced by two paragraphs:
"Subject to the provisions of Article L. 623-24-1, any voluntary infringement of the rights of the holder of a plant certificate as defined in Article L. 623-4 constitutes a counterfeit that commits the civil liability of the author. For the purposes of this section, are also considered to be an infringement of the right of the holder of a plant certificate to obtain incorrect or abusive uses of the name of the variety that is the subject of a certificate of obtaining.
"The holder of an ex officio licence referred to in sections L. 623-17 and L. 623-20, the holder of a mandatory licence referred to in section L. 623-22-3 and, unless otherwise specified, the beneficiary of an exclusive right of operation may exercise the action provided for in the first paragraph of this section if, after a stay, the holder of the certificate does not exercise that action. »
The preliminary chapter of title VI of Book VI of the Rural Code and Maritime Fisheries is thus amended:
1° The title is supplemented by the words: "for agriculture and food";
2° Articles L. 660-2 are added to L. 660-4 as follows:
"Art. L. 660-2.-The conservation of phytogenetic resources for agriculture and food is organized, in the general interest for their sustainable use, in particular for scientific research, innovation and applied diverse selection, as part of the living national agricultural and food heritage, in order to avoid irreversible loss of strategic plant genetic resources.
"To be registered as a plant genetic resource for agriculture and food, a plant genetic resource of a cultivated plant species or a related wild form must meet the following conditions:
« 1° Present current or potential interest in applied scientific research, innovation or diverse selection;
« 2° Not included in the Official Catalogue of Species and Varieties of Plants, except in cases specified by order of the Minister for Agriculture, in particular in the case of conservation varieties;
« 3° Do not be subject to a vegetal certificate.
"Art. L. 660-3.-East identified as a heritage plant genetic resource any phytogenetic resource that meets the registration conditions defined in Article L. 660-2 and notoriously known as part of the agricultural, horticulture, forestry and national food history, in the national territory, in particular because it is representative of this history, has been disseminated or is present in the territory or is emblematic of a region.
"The conservation of heritage phytogenetic resources is organized, in the general interest, under conditions that facilitate the access of citizens, any natural or legal person and the international community to samples of these resources given their overall interest in agriculture and food.
"These resources are integrated into the national collection of phytogenetic resources referred to in Article L. 660-1.
"Art. L. 660-4.-The conditions for the registration and recognition of phytogenetic resources set out in articles L. 660-2 and L. 660-3 and the modalities for the conservation and valuation of the samples of these resources are specified by decree. »
I. ― The amended or new provisions of sections L. 623-4, with the exception of those relating to essentially derived varieties as defined in III, and sections L. 623-22-3, L. 623-22-4 and L. 623-25 of the Intellectual Property Code are applicable to certificates issued prior to the coming into force of this Act. These provisions also apply to certificates issued for applications for certificates registered prior to the coming into force of this Act.
II. ― Section 2 bis of Chapter III of Book VI title II of the same code is applicable to plant certificates issued prior to the coming into force of this Act.
III. ― Part IV of section L. 623-4 of the same code does not apply to essentially derived varieties whose breeder has, prior to the coming into force of this Act, made effective and serious preparations for their operation or that the breeder has operated before that date.
This Act is applicable in New Caledonia, in the French Southern and Antarctic Lands and in the Wallis and Futuna Islands.
This law will be enforced as a law of the State.
Done in Paris, December 8, 2011.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister of Economy,
finance and industry,
François Baroin
Minister of Agriculture, Food,
Fisheries, Rural
and landscaping,
Bruno Le Maire
