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CJEU - C 59/11 / Opinion

Association Kokopelli v Graines Baumaux SAS

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:

Key facts of the case:

  1. It is well known that the number of plant varieties grown in European agriculture is on the decrease. Many traditional varieties are disappearing or are simply preserved in seed banks for future generations. Instead, the fields are dominated by a handful of varieties individual specimens of which, moreover, seem very similar to each other.
  2. For that reason, biodiversity in agriculture is in significant decline. It is possible that, as a result, certain varieties which could, for example, adapt more successfully to climate change or to new diseases than the varieties that currently predominate will, in the future, no longer exist. Today, the end-consumer’s choice of agricultural products is already restricted.
  3. One would imagine that this development is primarily driven by the economic interests of farmers who, where possible, grow the most productive varieties.
  4. However, the present case demonstrates that the restriction of biodiversity in European agriculture results, at least in part, from rules of European Union (‘EU’) law. In fact, seed for most of the plant varieties used in agriculture may only be marketed if the variety is officially accepted. Acceptance presupposes that the variety is distinct, stable and sufficiently uniform. In certain cases, productivity, that is that the variety is of ‘satisfactory value for cultivation and use’, must also be proved. Such proof cannot be adduced in relation to many ‘old varieties’. Consequently, the question arises whether this restriction on trade in seed is justified.

Results (sanctions) and key consequences of the case:

  1. The prohibition against the sale of seed of varieties that are not demonstrably distinct, stable and sufficiently uniform and, where appropriate, of satisfactory value for cultivation and use, established in Article 3(1) of Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed, is invalid as it breaches the principle of proportionality, the freedom to conduct a business within the meaning of Article 16 of the Charter of Fundamental Rights of the European Union, the free movement of goods established in Article 34 TFEU and the principle of equal treatment within the meaning of Article 20 of the Charter of Fundamental Rights.
  2. By contrast, consideration of the reference for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of the remaining provisions of Directive 2002/55 or the validity of Council Directive 98/95/EC of 14 December 1998 amending, in respect of the consolidation of the internal market, genetically modified plant varieties and plant genetic resources, Directives 66/400/EEC, 66/401/EEC, 66/402/EEC, 66/403/EEC, 69/208/EEC, 70/457/EEC and 70/458/EEC on the marketing of beet seed, fodder plant seed, cereal seed, seed potatoes, seed of oil and fibre plants and vegetable seed and on the common catalogue of varieties of agricultural plant species, Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species and Commission Directive 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties.