Fine imposed on seed potato company for entering into illegal joint cultivation contracts

Brussels – 3 October 2012: In interlocutory proceedings before the The Hague District Court against seed potato company “Ebben Aardappelen B.V.” located in Groeningen (the Netherlands) that took place this week, Breeders Trust has enforced that the defendant shall immediately refrain from infringements of breeders’ rights in particular by secondary crop through so-called joint cultivation contracts on penalty of a fine of 5,000 euro per hectare. In addition, Ebben shall pay an amount of 4,500 euro to Breeders Trust in compensation of the costs incurred.

Geert Staring, Managing Director of Breeders Trust, is satisfied: “now it is clear that breeders/traders who use joint cultivation contracts in this manner are acting illegally. The meaning of the concept of “own company” has also become clear as well as the substantial fines for infringement”.

Staring explains: “According to the EC Regulation on Plant Variety Rights, a farmer may, under certain conditions, reuse within the own company the seeds of the harvest of the previous year of the own company. This limitation of the plant variety rights is known as the so-called “Farmers’ Privilege”. In practice, there are more and more big farmers/traders seeking the boundaries of this limitation and making agreements with farmers in the area. They provide the seeds and grow the crops while the other party provides the land. A contract is drawn up, on paper giving the impression that the crops are thus grown within “the own company” of the company that provided the seeds”.

However, the EC regulation clearly states what the concept of “own company” is understood to mean. This is particularly clear if the cultivation in fact takes place in one’s own name and for one’s own account. The lawyer of Breeders Trust succeeded in persuading the court that this is not the case with this type of joint cultivation construction. This was, among others, due to the fact that the cultivation risks were imposed on the farmers who provided their land and that they were paid on the basis of returned weight after deducting tare, abnormal potatoes, etc. In this manner the concept of “own company” is stretched beyond its limits and breeders who own protected varieties are treated unfairly. Company Ebben’s method of using joint cultivation contracts may therefore be considered as illegally marketing non-certified basic material. As a result, the farmers with whom these joint cultivation contracts have been concluded are also in breach of the law.