What businesses need to do to apply for plant variety rights and to market plant reproductive material (covering seed and other propagating material) after Brexit.
Rules for applying for plant variety rights after the UK leaves the EU with no deal
EU rights granted 2 months or more before the UK leaves the EU with no deal will be protected under UK law, becoming UK rights.
If you’ve already applied for EU rights, but these have not been granted at least 2 months before the UK leaves the EU with no deal, you must apply to the Animal and Plant Health Agency (APHA) for rights to protect the variety in the UK.
This is because EU legislation allows a 2-month period for appeals. APHA cannot protect varieties in the UK which might be subject to appeal against the Community Plant Variety Office’s (CPVO) decision to grant rights.
If you make the UK application within 6 months after EU exit, you can use the same distinctness, uniformity and stability (DUS) test.
If you are granted EU rights less than 2 months before the UK leaves the EU with no deal, you must apply for rights to protect the variety in the UK. If you make the UK application within 6 months of exit, you can use the same distinctness, uniformity and stability (DUS) test.
If the variety is not distinct from an independently bred variety, priority will be decided using the date of the application for EU rights.
For new varieties after EU exit, you’ll need to apply separately in the UK and the EU. You must apply to:
- APHA for UK protection
- the CPVO for EU protection
The EU will continue to recognise EU plant variety rights granted to all breeders before the UK leaves the EU with no deal.
Marketing plant reproductive material in the EU
The UK has applied to the EU for ‘third-country equivalence’ on plant reproductive material certification and DUS testing. However, the European Commission will not consider an application from the UK before the negotiations have been completed. APHA is therefore working on the basis that the UK will not have third-country equivalence by the time it leaves the EU with no deal.
If third-country equivalence is not granted by the EU
If, after resubmitting its application, the UK is still not granted equivalence, there will be restrictions on UK businesses marketing certain plant reproductive material in the EU.
The EU will not accept UK certified plant reproductive material, even if the variety is on the EU’s Common Catalogue. The EU will not accept UK DUS test results.
Fruit propagating material: no equivalence
Defra are responsible for contacting member states to negotiate bilateral agreements for fruit propagating material. The EU will not accept UK-certified material.
Seed potatoes: no equivalence
Defra are responsible for negotiating bilateral agreements with member states for seed potatoes. The EU’s plant health import requirements mean that seed potatoes cannot be exported from the UK to the EU unless a change in requirements can be agreed.
Marketing EU plant reproductive material in the UK
Regardless of the outcome of the UK’s application for third-country equivalence, you can market:
- varieties, except potatoes, listed on the EU Common Catalogue for a 2-year period after leaving the EU
- varieties of potatoes for a one-year period after leaving the EU
EU certified seed of agricultural species will be accepted in the UK for a period of 2 years after leaving the EU. There are specific arrangements for other groups of material.
Seed potatoes: marketing EU plant reproductive material in the UK
EU certified seed potatoes will continue to be recognised in England, Wales and Northern Ireland for one year following exit. Scotland will continue to operate its voluntary arrangement with industry on sourcing seed potatoes locally to maintain Scotland’s higher phytosanitary status.
Vegetable seed and propagating material: marketing EU plant reproductive material in the UK
You can market varieties on the EU Common Catalogue for a 2-year interim period. You can continue to use the same labelling.
After this period, varieties must be on the UK National List and labelled as UK standard seed or vegetable propagating material.
Fruit propagating and planting material: marketing EU plant reproductive material in the UK
The UK will continue to recognise EU-certified and Conformitas Agraria Communitatis (CAC) material for a 2-year interim period. Varieties accepted for marketing in the EU will continue to be marketable in the UK.
Before the end of the 2-year period, the UK will decide if it will continue to accept EU-certified and CAC material and EU varieties.
Ornamental species: marketing EU plant reproductive material in the UK
You can continue to market EU material in the UK, including after the 2-year interim period.
Forest reproductive material (FRM): marketing EU plant reproductive material in the UK
The Forestry Commission will treat basic material registered as FRM in EU member states as equivalent to basic material registered in the UK. You can continue to use the same labelling.
After the interim period
Following the 2-year interim period, and one year interim period for seed potatoes, the main agricultural food and feed crop varieties, including vegetables, marketed in the UK will need to be on the UK National List. You’ll need to follow the current process to apply for National Listing.
Plant reproductive material from outside the UK will need to comply with normal international requirements.
Marketing UK-certified plant reproductive material in the UK
UK plant reproductive material will continue to:
- comply with the provisions of the current marketing regulations
- maintain assurances of identity, labelling and control
The EU will not accept UK DUS.
The UK plans to continue to accept EU DUS reports if they are of comparable quality to UK DUS reports.
The exception to this will be agricultural species currently tested by the:
- Agri-Food and Biosciences Institute
- National Institute of Agricultural Botany
- Science and Advice for Scottish Agriculture
For these species, the UK will only accept DUS reports from these approved UK science organisations.
Vegetable species DUS
An agreement has been reached within the UK to continue to accept EU DUS for 2019.
If the UK gets third-country equivalence
If the EU grants the UK third-country equivalence:
- you can continue to market UK-certified plant reproductive material in the EU if it’s of a variety on the EU’s Common Catalogue
- the EU will continue to accept UK DUS test results
Certified seed of agricultural species, except seed potatoes, will be traded under OECD rules. This means that all certified seed will need to be accompanied by an International Seed Testing Association (ISTA) orange international certificate.
APHA have offered training courses for courses to businesses identified as exporters of certified seed to the EU. If you have not already been contacted and you export certified seed to the EU, please contact your local PHSI or APHA office.
Seed potatoes: third-country equivalence
The UK and EU need to agree a bespoke arrangement on the conditions of trade to the EU.
This application for equivalence for plant reproductive material does not cover fruit propagating material or ornamental plant species. These have separate arrangements.
Fruit propagating material: third-country equivalence
The current arrangements, where EU member states make their own decisions on marketing through bilateral agreements, will continue until December 2022. Defra are responsible for contacting member states to negotiate bilateral agreements as needed.
The EU does not grant equivalence to a third country. However, businesses can trade material freely, subject to plant health, labelling and country of origin requirements. The variety must be on a ‘supplier’s list’ in an EU member state.