Guidance

Plant variety rights and marketing plant reproductive material if there’s a no deal Brexit

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.

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Rules for applying for plant variety rights if there’s a no deal Brexit

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 exit day, 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 Brexit, 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 Brexit, 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 Brexit, 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 will not have third-country equivalence from exit day. The UK will reapply to the EU for ‘third-country equivalence’ on plant reproductive material certification and DUS testing if the UK leaves the EU.

If third-country equivalence is not granted by the EU

The EU will not accept UK certified plant reproductive material, even if the variety is on the EU’s Common Catalogue, if the UK is not granted equivalence. The EU will not accept UK DUS test results.

Fruit propagating material: no equivalence

The Department for Environment, Food and Rural Affairs (Defra) is 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

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. Defra is responsible for negotiating agreements with the EU for seed potatoes.

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 day. 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 if there’s a no deal Brexit. 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

After 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 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 current marketing regulations
  • maintain assurances of identity, labelling and control

DUS testing

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

The UK will 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 (Organisation for Economic Co-operation and Development) 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 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 have not agreed the conditions of trade to the EU.

Fruit and vegetable 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 is responsible for contacting member states to negotiate bilateral agreements as needed.

Ornamental species

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’ and accepted in an EU member state.

Stay up to date

The UK will leave the EU on 31 October. This page tells you what to do if there’s a no-deal Brexit. It will be updated if anything changes, including if a deal is agreed.

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Published 18 March 2019
Last updated 21 October 2019 + show all updates
  1. Explained that a Brexit deal has been agreed but needs to be ratified. The UK could still leave the EU with no deal on 31 October if the UK and EU do not approve and sign the withdrawal agreement
  2. Explained that the UK is resubmitting its application for third country equivalence.
  3. Changed references to 29 March 2019 to "after the UK leaves the EU without a deal".
  4. First published.