What is the trilogue about?
The trilogue negotiations concern the regulation of the production and marketing of plant reproductive material in the EU. The new Regulation will enter into force four years after its adoption, so probably in late 2030. Until then, the existing Directives / national rules will continue to apply.
Outcomes & analysis
Our colleagues at ARCHE NOAH have prepared a thorough analysis of the trilogue negotation outcomes. This is summarised by topic in the sections that follow.
1. Scope of the Regulation
Bad news:
- The scope of Regulation will be, in principle, wider than today. All transfers of PRM are viewed as marketing, even if they do not have a commercial nature or intent.
- Broad definition of “professional operator”. Professional involvement and legal responsibility over PRM production with a view to its marketing, maintenance or processing is enough to trigger obligations under the regulation.
Good news:
- Exemptions for transfers of PRM in the context of (1) research, (2) breeding, (3) scientific purposes.
- Exemptions for for gene banks that are recognised as such by national
authorities. If conservation organisations are recognised as gene banks, they can freely receive or transfers seeds. If they are not recognised as gene banks, they need to follow the rules in Article 29 (only).
2. Article 29: Conservation organisations and networks
Note: If a conservation organisation/network is recognised as a gene bank, it can transfer
PRM for conservation purposes without following the Article 29 rules. For the sale of PRM, Article 29 applies. Article 29 also allows the members of the organisations/networks to market PRM (whereas the gene bank definition doesn’t mention any members).
Bad news:
- Conservation organisations must be non-profit and the PRM needs to be marketed without profit.
- All PRM needs to be ‘practically free of quality pests’ (but the definition is quite pragmatic).
Good news:
- Production, exchange and ‘marketing’ of PRM between and within conservation organisations and networks possible. All PRM (including unregistered varieties) is allowed to circulate within these organisations/networks, who can also receive material from outside the networks, as well as market it for the purpose of conservation. All of this is also possible for members of the organisations/networks (including farmers).
- Inappropriate requirements prevented, including:
- Exclusion of farmers
- EU-wide standardised operators labels for the PRM,
- inappropriate requirements regarding vigour and germination,
- obligation to submit samples to authorities,
- reporting on production volumes,
- traceability and record-keeping obligations.
- As also the foreseen implementing act on this Article was prevented, there is already clarity on the rules to be applied
3. Article 30: Farmer PRM Exchange
Note: Today farmer seed exchange is formally recognised only in a handful of EU Member States. In some others it is tolerated in a legally grey area.
Bad news:
- Many severe restrictions:
- Exchange prohibited for certain crop species (potatoes, vine, citrus, poppy and hemp).
- No monetary compensation (only in-kind exchange is allowed).
- Plant health rules apply.
- Exchange is limited to small quantities at the local level (both determined by competent authorities, possibly allowed between different countries)
Good news:
- Farmers explicitly allowed to exchange most PRM.
- New obligations for professional operators (traceability, record-keeping, monitoring) do not apply to farmer seed exchange.
4. Article 28: PRM for non-professional users
Note: Today in most EU Member States the sale of PRM to amateur gardeners generally follows the same rules as large-scale commercial crop production.
Bad news:
- Producers must sell registered varieties to amateur gardeners for some species: poppy, hemp, potatoes, turf.
- Extensive traceability rules. Production records need to be kept for 6 years.
- Labeling and packaging will be set out in more detail in an Implementation Act.
Good news:
- No more variety registration and no mandatory seed certification for the sales of PRM to amateur gardeners (‘non-professional users’) in small quantities.
- Lighter seed/PRM production rules than those applying to commercial crop production.
5. Article 26: Conservation varieties and locally adapted varieties
Bad news:
- Accessibility: The rules of the registration are no longer in only one article, but spread over articles, creating unnecessary legal complexity for small actors.
- Exceptions to the administrative burden are expected, but the regime comes with extensive record-keeping (6 years) and traceability requirements (Article 42).
Good news:
- Registration of both conservation and newly bred varieties, ‘locally adapted varieties’ is possible. Definitions allow the results of participatory plant
breeding or low-input breeding to be marketed without DUS testing. - Restrictions to only fruits and vegetables for newly bred varieties have been prevented. Registration and marketing can happen across all species.
- Any actor can register conservation and locally adapted varieties (not only professional operators).
- The PRM is marketed as standard seed or material (and not certified as it is today for agricultural crops), with an operators’ label. No control plot tests are required. No regional limitations are foreseen, except for their maintenance (this is problematic).
6. Organic Heterogeneous Material
Bad news:
- No possibility to produce and market non-organic heterogenous material – but this ensures OHM will remain free of GMOs/NGTs.
Good news:
- Stability: The Organic Regulation of 2022 which created the opportunity to notify and market ‘Organic Heterogeneous Material’ (OHM) is maintained without changes. This will be beneficial for competent authorities and operators starting to use the regime.
7. Administrative burden
Bad news:
- Articles 41 to 43 of the Regulation include a significant number of obligations for
professional operators, including:- their mandatory registration,
- the identification and monitoring of critical points in the production process,
- record-keeping, traceability, and availability for competent authorities.
- New traceability obligations under Article 42 mean that all professional operators need to know where they received PRM from and to which professional operator they gave/marketed PRM. Additionally, this information needs to be kept for 6 years.
- Professional operators need to keep information on the quantities of standard seed/material produced per genera or species for 6 years and provide it to competent authorities on request (Article 43).
Good news:
- Exempted actors do not need to be registered as professional operators, including:
- Actors exclusively involved with non-professional users (Art. 28),
- conservation organisations/networks (Article 29),
- and farmers engaged in PRM exchange (Art. 30)
- Conservation organisations/networks are exempt from the traceability rules (Article 42) and do not need to monitor critical points of the production and keep records of monitoring.
- Farmers exchanging seeds are exempt from the traceability rules (Article 42) and most administrative obligations (Article 41).
8. Imports
Bad news:
- The possibility to import is not expected for conservation varieties, nor for PRM sold to amateur gardeners (‘non-professional users’), marketed to or by conservation networks/organisations, or exchanged by farmers. The import of these types of PRM from non-EU countries will not be possible!
- NB: For EU neighbouring countries, e.g. Switzerland, UK or Serbia, the situation may be slightly different, depending on the association or trade bilateral agreements of the EU with these countries.
9. Value for Sustainable Cultivation and Use (VSCU) and rules for herbicide-resistant varieties
Note: Today, DUS varieties of agricultural crop species need to go through additional testing to assess their value for cultivation and use (VCU) on the basis of protocols determined at national level and focused primarily on yield.
Bad news:
- VCSU examination will still be predominantly a trait-based assessment that will look into yield first. The examination will not take place in organic or low-input conditions, except for organic varieties. Thus, the opportunity to contribute to sustainability was missed.
- Member states can adopt cultivation conditions for herbicide tolerant varieties. However, the initial proposal foresaw this as an obligation, not just and option, and for all varieties with ‘undesirable agronomic effects’. The impact is likely to be minimal.
Good news:
- VCSU testing won’t happen for fruits and vegetables (only for agricultural plants, vine and potatoes).
- The Commission will evaluate the VCSU mechanism in 10 years and can make adjustments.
10. Transparency
Bad news:
- The new harmonised EU variety register will not contain information about intellectual property rights that may restrict the use of the seeds, or breeding methods (except NGT and GM) to obtain the variety.
Good news:
- In future, the EU Variety Register will contain more information that is relevant to seed users, including the official description of the variety, whether the variety is a hybrid, synthetic or NGT variety, the types of uses and technical characteristics (Annex VII).
Update on the process
Both Council and EP (AGRI and plenary) still need to agree to the text, which usually is a standard procedure after the trilogue. On Monday, the EP rapporteur Dorfmann will report back to COM AGRI and we heard that the AGRI committee will deal with the file already on 14. July (no agenda available yet). The Council presidency has already reported back to member states (reach out to ARCHE NOAH for notes), but there is no formal endorsement yet as the text still has to be finalised (recitals and the legal check are still missing).
Save the date
On Tuesday, 6 October ARCHE NOAH will have a full day online seed policy workshop. This will be the opportunity to discuss the trilogue outcome and next steps as a movement in detail.
