POSITION OF EUROPEAN COORDINATION VIA CAMPESINA ON THE MARKETING OF SEEDS, PLANT HEALTH AND CONTROLS

Working document of December 5, 2012

At the beginning of November 2012 the European Commission presented four
non-official positions („non-papers‰) outlining new regulations on the
marketing of seeds and propagating material (PMR),1 on plant health (PH),
on controls and on funding. Following a consultation with governments and
the services of the Commission, an official bill should be proposed to the
European Council and the Parliament in the first months of 2013.

La Via Campesina Europe analyzed these documents and developed an initial
position which focuses on issues connected to “seed marketing”. It might
also develop positions in the future on cross-cutting aspects, including
controls and the generalization of the “hygiene package” to all
agricultural production.

THE COMMISSION MUST REWRITE ITS DRAFT IN ORDER TO TAKE INTO CONSIDERATION FARMERS‚ RIGHTS AND NOT ONLY THOSE OF THE INDUSTRY

Although still imprecise, these proposals are presented as a simplification
of the regulatory framework on the market access of seeds.

On the one hand, they intend to satisfy the seed industry that detains an
exclusive monopoly on varieties, which are distinct (D), uniform (U) and
stable (S) and are covered by Plant Variety Protection (PVP), and to which
they offer the management of the European catalogue2 as well as the
registration of varieties based on an official description complying with
the current catalogue, and on the other, the genetic engineering
multinationals eager to see their patented genetic manipulations enter the
market without having to take the time to homogenise the varieties in which
they are integrated.

Only those seeds will be marketable that comply with the 1991 UPOV3
Convention, and which may both be protected by a PVP and only contain
plants that are protected by one or more patents. Only the old varieties or
„varieties with no intrinsic value‰ registered in the catalogue of
„conservation varieties‰ prior to the entry into force of the new
regulation will be registered based on an „officially recognised
description‰ (ORD), which is simplified and less expensive. However, no new
variety, which is non (U) and non (S), will have the option of being
registered. The seeds of „population‰ varieties developed by farmers and
adapted and adaptable to changing growing conditions and climate will be
banned from marketing.

These proposals constitute on the one hand an unacceptable attack on
subsistence agriculture and small-scale food production as well on the
right of peasants and farmers to exchange and sell their own seeds, and on
the other hand, create new environmental constraints and others connected
to plant health and biosafety with the aim of eliminating seeds adapted to
sustainable family and organic farming, as well as to small seed companies.

Subsistence farming systems and informal systems of seed exchange between
farmers have produced all the species available for cultivation, and have
conserved and renewed from generation to generation all of agricultural
biodiversity, which forms the basis of modern breeding. Banning all the
varieties that have not been registered would make the vast majority of
local varieties conserved disappear forever.

These assaults on the rights of farmers and the right to food are designed
for export. Indeed for the past 50 years Europe has been a laboratory for
seed laws that it subsequently imposes on the entire planet through free
trade agreements. Europeans must refuse these laws not only for themselves,
but for all peoples of the world.

1) The access to seeds intended for small-scale farming directed to local
food production must remain an inalienable human right

Mechanised agriculture, the only sector using industrial seeds, is only
practiced by less than 10% of farmers around the world. Three-quarters of
the food produced on the planet comes from subsistence farming and
small-scale food production intended for self-consumption and local
markets. This agriculture is very diversified and economical. It is not
interested in industrial seeds intended for cash-crop monocultures that are
very demanding in chemical inputs and geared to the global market. The
industry‚s propaganda wants to reduce European subsistence farming and
small-scale food production to the folkloric use of a few „old varieties‰
by „hobby gardeners‰. Yet the millions of small farmers from eastern
European countries that have recently acceded to the European Union do not
cultivate for their pleasure, or for export to the global market, but to
feed the local population. Today they are being joined by the Irish, Greek,
Spanish and Portuguese people, who have been thrown out onto the street by
the financial crisis and who occupy abandoned land to feed themselves.

No legislation on the marketing of seeds or on industrial property (PVP and
patent) anywhere in the world has ever dared to restrict access to seeds
intended for small-scale farming directed at local food production. Current
European regulations also limit themselves to the production and marketing
of seeds intended for commercial agriculture (marketed for „the purposes of
commercial exploitation‰). For several years, the industry has been using
propaganda orchestrated around frivolous legal proceedings against the
marketing of seeds of old varieties in order to attempt to cancel the right
to sell seeds of varieties not registered in the catalogue and used in
subsistence farming for the purposes of small-scale food production. The
„non-paper‰ wants to satisfy the industry in this. As simplified as they
may be, the proposed costs, bureaucracy and registration standards would
lead to the disappearance of tens of thousands of old and current farmers‚
varieties that guarantee the right to food of the poorest populations.
Indeed, these populations do not have the financial means to buy every year
seeds protected by industrial property titles, which would be the only ones
remaining on the market alongside some old varieties soon to become
outdated, or to purchase inputs necessary for their culture. Is this
evolution of rules on marketing the premise of the same evolution of rules
on industrial property on seeds? Extended to the global level, it directly
targets millions of small farmers who resist land grabbing by
multinationals: without farmers‚ seeds, they can no longer feed themselves.

The marketing of old or new, non-GM, freely reproducible seeds for the
purposes of small-scale farming intended for local food production must
continue to be exempt from any obligation of certification or official
registration. For this purpose, the scope of the regulation connected to
the “catalogue” should remain as it is today, namely limited to the
marketing of seeds “for the purposes of commercial exploitation.” The
variety only needs to be registered on a publicly accessible list held by
and under the responsibility of the operator to avoid any confusion about
the designation of other varieties. Minimal obligations relating to
germination capacity, specific and varietal purity (except for mixtures)
and basic health precautions shall be sufficient to ensure the fair and
honest character of marketing activities of these seeds.

2) Guarantee the right of farmers to exchange and sell their own seeds

This right is enshrined in the International Seed Treaty4 ratified by the
European Union in order to protect the activity of farmers who participate
in the conservation of agricultural biodiversity in their fields. The
selection and dynamic management of on-farm cultivated biodiversity are not
commercial activities. They are not subject to current European laws that
are limited to the marketing of seeds, against payment or free of charge,
„for the purposes of commercial exploitation‰. The production of these
farmers‚ seeds is essential to allow for the adaptation of crops to climate
change and to new requirements for the reduction of chemical inputs. It
guarantees the autonomy of farmers and peoples in the face of the
domination by a few seed companies. The „non-paper‰ wants to subject this
autonomy to the good will of gene banks controlled by seed corporations
that only accept ex situ conservation in cold storage rooms or else through
digitization, and who oppose any notion of dynamic on-farm conservation.

Networks of in situ conservation must remain outside the scope of laws on
the marketing of seeds. And along with them all “in-kind” exchange of seeds
between farmers who contribute, through their agricultural production, to
the local adaptation of varieties, the selection, conservation and / or
dynamic management of agricultural biodiversity. In accordance with its
purpose as defined in Article 1, the regulation on PMR should apply only to
operators who produce plant reproductive material intended to be placed on
the market and / or to be sold. It should be clear that the farmers who
produce their own plant reproductive material and exchange it in-kind, free
of charge or for a fee, directly with other farmers, without commercial
intermediaries or a public offer of marketing, are not operators to whom
the PMR law applies.

3) Open up the catalogue to traditional and new population varieties
adapted to sustainable family farming and organic farming

The „non-paper‰ introduces a new definition of variety based on the 1991
UPOV Convention, imposed on all registrations and which excludes population
varieties. Indeed, the only eligible varieties are those with
characteristics defined by a genotype (pure lines) or a certain combination
of genotypes (F1 hybrids or synthetic populations). These standardized
varieties cannot adapt to soil diversity or climate variability without
significant recourse to chemical inputs. Their monopoly is a serious break
to the development of sustainable family farming and organic farming.
Registration based on ORD, which does not impose the criteria of U and S,
can only allow the registration of population varieties if it must not
comply with this definition of UPOV.

In addition, registration based on ORD must not be limited to old
varieties, but remain open to new local, farmers‚ and population varieties,
adapted to new growing conditions that will be imposed on farmers, in
particular with the amplification of climate change. Varieties adapted to
particular growing conditions, and not a region of origin or of specific
adaptation, must continue to have access to registration based on ORD.
Their maintenance should not be limited to a particular region. In
addition, the requirement to control environmental risks and risks
connected to plant health exclusively through genetics, biological
sterilisation and/or chemical treatment of the seeds amounts to negate the
important capacities of sustainable family farming and organic farming to
control diseases and respect the environment through good agricultural
practices.

Registration based on ORD without the requirement of DUS and VCU must be
open to population varieties defined by their characters resulting from
varying combinations of several genotypes. It should not be restricted to
varieties marketed prior the publication of the regulation, but remain open
to any new variety, whether local or adapted to particular growing
conditions. Only local varieties connected to a specific region should be
maintained in their region of origin, unless this is technically impossible
(i.e. important need for isolation in the case of cross-pollinated
species). Seeds of all the species belonging to these varieties must be
sold in the “standard” category, without certification requirement. Plant
health and environmental standards of an agriculture based on chemical
inputs should not be imposed on subsitance farming and organic agriculture.
PH Regulation must include specific items for that.

4) Stop patented and genetically manipulated varieties and plants

Current regulations guarantee exclusive access to the seed market for
uniform (U) and stable (S) varieties that can be protected by PVP. Non (U)
and (S) varieties can be patented, but they can currently only be
cultivated under an inclusive contract5 without an exchange of the title on
the seeds and crop. In addition, patent holders on genetic modifications to
plants want to market their innovations without being forced to go through
the long period of multiplications implied by the uniformity and stability
of varieties. They should not be able to enter the market through the new
registration procedure based on ORD, which is no longer subject to the
obligations of U and S.

On the other hand, many consumers in the organic sector and elsewhere
reject any genetic modification that violates the integrity of the plant
cell, including not only transgenesis which is now labelled, but also
mutagenesis and cell fusion, as well as any other technique leading to a
genetic modification that does not occur naturally through multiplication
and/or natural recombination.

Registration based on ORD should be reserved for freely reproducible non-GM
varieties, and closed not only to any variety protected by a PVP, but also
patented varieties or plants that are covered by patents. Registration must
be accompanied by an obligation to disclose information on the particular
method of genetic modification used6.

5) Fight against biopiracy

The PVP partially meets the requirements of benefit-sharing under the
Convention on Biological Diversity by leaving the new protected variety
free for creating new selections. This requirement is not completely
respected because since the 1991 UPOV Convention and EU Regulation 2100/94,
it prohibits or restricts the free use of farm-saved seed. The patent does
not meet any of these obligations. Instead, it prohibits reuse of seeds and
plants to which its protection applies. In the current framework, which
imposes no information on the genetic resources used, it is impossible to
apply the obligations of the Nagoya agreements, in particular whether the
obligations of prior informed consent and benefit-sharing have been met.

Any registration not accompanied on the one hand by accurate information on
all forms of industrial property that may apply to plants of the variety
(PVP on varieties or patent on plants) as well as on the plant genetic
resources used for creating the new variety, and on the other hand, by
evidence of compliance with prior informed consent and benefit-sharing
shall exclude all restriction on reusing freely a variety in order to
select another and on marketing it, or on farm-saved seed7.

6) Protect human health and the environment

The competent authorities should be able to refuse to register a variety if
it poses a risk to human, animal or plant health, or the environment.
National authorities must, for the same reason, be able to refuse the
marketing of seeds and the cultivation on their territory of seeds
belonging to varieties listed in the European catalogue.

7) Do not divert health safety rules to strengthen ownership of seeds by
industrial property rights

Laws for the protection of industrial property leave the burden of proof of
any infringement to holders of the title. In the absence of presumption of
infringement, farmers have no obligation to inform breeders. The choice of
varieties is indeed protected by the right to privacy of personal and and
professional information. The traceability requirements for seeds imposed
on operators for reasons of health safety (Article 57 of Regulation PH)
should not be diverted from their purpose by the competent authorities who
have access to this information. The information should not be transmitted
to holders of industrial property title. The absence of guarantees of non
disclosure of the information could incite farmers to fail to meet the
plant health requirements.

8) Maintain a public registration and control service within financial and
technical reach of small operators

The management of the European catalogue is entrusted to the European
Union‚s Community Plant Variety Office (CPVO) that manages PVP. It will be
able to register varieties directly at the European level (List A) and
supervise national registration (list B). Registration at the European
level cannot take into account local ecosystems. This would benefit very
large companies that want to flood the European market with the same
varieties that have „no roots” in a specific territory, dependent on inputs
and totally disconnected from soils. Such varieties do not fulfil the
objective of reducing inputs, of local adaptation to climate change and
biodiversity.

The “non-paper” and organizes a full and definitive privatization of public
services connected to registration and control. The new procedures of
self-registration, self-control and self-issuance of health certificates
„under official control‰ are only accessible to large operators who can
recoup on large quantities of marketed seeds the costs for the required
equipment (certified trial plots and laboratories), the hiring of
authorized qualified personnel, and the multiplication of analyses. If
public services are deserted by large operators, they will not be able to
remain in place and will be replaced by certifying bodies set up by the
seed industry. The commercial dependence of these certifying bodies
financed primarily by their most important clients opens the door to all
kinds of abuses. Small operators unable to meet required standards will be
held first responsible for the slightest commercial or health incident,
without any possible recourse, on the mere grounds of not having been able
to implement the imposed risk management measures.

Variety registration should not be done at European level, but only at the
national level. Certification must remain an official mission performed
directly by the competent authorities and not by private operators. The
registration of varieties and the quality control of seeds must remain a
public service that is accessible to all, and free of charge for freely
reproducible varieties and seeds, obtained and produced in a manner that
occurs naturally by multiplication and/or by natural recombination, and
exempt of all industrial property title. Health, biosafety and traceability
requirements must be proportionate to the size of companies to which they
apply.

1Hereafter, the term „seeds‰ stands for „seeds and propagating material‰

2 Entrusted to the Community Plant Variety Office (CPVO) responsible for
the registration and control of PVP

3 International Union for the Protection of New Varieties of Plants

4International Treaty on Plant Genetic Resources for Food and Agriculture
(IT PGRFA)

5 As described in article 2- 1) a) of EC directive 2002/55

6We demand a ban on PVP as defined in the European regulation 2100/94, and
on all forms of patents on the reproduction of life forms and transgenic
plants. We demand a plant health related, environmental and socio-economic
evaluation of all other technologies of gene manipulation. If this
evaluation authorises some of these technologies, we demand a mandatory
labelling of seeds and products originating from it. These bans and
regulations depend on the amendment of other regulations on intellectual
and industrial property rights (IPR) and on biosecurity that must still be
achieved.