General Rules on the Protection of Plant Varieties

(Approved by Royal Decree No. 1674/1977 of June 10, 1977)*

I. Purpose and Scope of These Rules

Its application shall extend to all botanical genera and species. It shall come into effect in the ordinary manner within the following maximum periods of time, during which the protection of the species indicated has to be established. The said periods shall begin on the date of publication of the Decree approving these Rules.4

II. Definition of the Plant Varieties Covered by
the Protection and of the Breeder

For the purposes of these Rules, the following definitions are established:

III. Conditions Required for Protection of a Plant Variety

Preliminary examination:

With regard to the conditions that have to be met by a plant variety in order to be eligible for protection, account shall be taken of the following:

- Novelty: the characteristics that are used to distinguish varieties shall be both qualitative and quantitative. In both cases the variation of the said characteristics, which shall be discontinuous for the non-measurable ones and continuous between two extremes for the quantitative ones, shall be defined by degrees of expression, the number of which shall be determined by the needs of description. Characteristics the variation of which is least affected by environment shall be regarded as the most important;

- Homogeneity: for a variety to be considered homogeneous, all the component individuals have to be practically equal, or have a limited overall variation with respect to the characteristics concerned; in other words, the number of plants, the description of which is different from the variety under consideration, has to remain within reasonable limits and, as the case may be, fluctuations have to remain within a specific range;

- Stability: generally, when the sample supplied by the breeder is regarded as having a high level of homogeneity, the material may be considered stable. In the event of doubt, propagation of the material shall be effected with a view to ascertaining whether it remains true to its definition.

The Ministry of Agriculture shall lay down such standards for the interpretation of these Rules as are necessary for each species or group of species with respect to the carrying out of the preliminary examination, and which shall specify the following:

Similarly, the variety shall not be considered new if it is described in an application for a "Plant Variety Title," in a title that has not yet been published or in an application filed abroad that benefits from the priority provided for in Section 10(3) of these Rules.

In no case shall the sole fact that it has been recorded as such in an Official Register be regarded as destructive of novelty. For the purposes of this provision, "Official Register" means the Register of Commercial Varieties of the National Institute of Seeds and Nursery Plants, or any other similar register of a foreign country with which Spain has entered into an Agreement on the subject.

Application for a "Plant Variety Title"

The application shall be stamped by the office or center concerned, with an indication of the date, hour and minute of receipt of the filing.

If the office or center has a record only of the date, the submission of the documents included in the filing shall be deemed to have taken place at midnight on that date. If there is no record of the date of the submission to the office or center, such submission shall be deemed to have been made on the date of receipt and on the hour of opening of the package at the Registry of Protected Plant Varieties.

The application shall include at least the following indications:

Initiation of the Procedure

Examination of the Application

Register of Applications

IV. Rights of the Breeder

A "Plant Variety Title" may be held by the breeder who corresponds to the definition set forth in Section 3 of these Rules, and by his successors in title who provide documentary evidence of their status as such, subject to the following conditions:

Licenses for Use

In all matters relating to licenses for use, the following shall be taken into account:

Where the license for use is granted by an official body, paragraphs (a), (c), (e), (f) and (g) of the foregoing subsection shall apply, and the licensee may not in any case assign the license to third parties or grant sub-licenses.

Prohibition to Exploit Certain Plant Varieties

The grant of the Title shall be published in the Boletín del Registro de Variedades Protegidas, pursuant to the provisions of Section 17 of these Rules, within a period of three months from the grant by the Ministry of Agriculture.

When the grant of the Title has been published in the Boletín del Registro, any person may, subject to payment of the fee established by law, obtain from the Registry of Protected Plant Varieties information regarding the documents that accompanied the application, the documents relating to the preliminary examination and the document containing the decision adopted.

Nevertheless, where this is considered necessary by the Protected Plant Variety Commission, such provisions shall be enacted as are required to safeguard secrets concerning the procedure whereby the new plant variety was obtained.

A mention shall also be made in the Register of judicial decisions, if upheld, in which the ownership of the right is specified, as well as all those that relate to transfers of the ownership of "Plant Variety Titles," and licenses granted.

When detailed provisions are enacted by the Ministry of Agriculture for the entry into force of protection for each genus, species or group of species, the maximum period of protection shall be indicated in each case.

On a proposal by the Protected Plant Variety Commission, through the Central Board of the National Institute of Seeds and Nursery Plants, and after examination of the legislation on the protection of each species and country concerned, specific provisions shall be enacted by the competent Ministry or Ministries establishing the aforementioned reciprocities.

Subject to the transitional provisions of these Rules, the right of priority may only be claimed by breeders who:

In the cases mentioned above, and in accordance with the provisions of Section 16 of these Rules, invalidation shall be pronounced by the Minister of Agriculture on a proposal by the Protected Plant Variety Commission and through the Central Board of the National Institute of Seeds and Nursery Plants.

Compulsory Licenses for Use

Upon expiration of a period of four years from the date on which a "Plant Variety Title" was granted in respect of a given variety, unjustified failure to use shall be considered to exist if any of the following circumstances are present:

The Government may, by Decree passed in the Council of Ministers, decide that, in view of the vital importance of a variety to the defense, national economy or public health of the country, its use is regarded as being in the national interest. On publication of such Decree, the Ministry of Agriculture shall order that the variety concerned be made subject to compulsory licensing, according to the grant procedure specified hereafter; the holder of the "Plant Variety Title" shall nevertheless be allowed a period of six months from the publication of the said Order in which to provide for the adequate use of the variety, on expiration of which the variety shall be finally subject to compulsory licensing.

The grant of a compulsory license for use shall be governed by the provisions set forth below:

On publication of the Ministerial Order by which a variety is declared subject to compulsory licensing for reasons of national interest, any interested party may apply to the Registry of Protected Plant Varieties for the grant of a license for use. When the application has been communicated to the holder of the "Plant Variety Title," the latter shall have a period of one month in which to reach an agreement with the applicant, on expiration of which the provisions of subparagraph (b.7), above, shall apply.

In duly justified cases the Ministry of Agriculture may, at any time, obtain ex officio a compulsory license for use where such use is to be made by the Ministry and for its own account. Such license shall be obtained by Order of the said Ministry, which Order shall specify the conditions governing the licence.

The cancellation of a license shall be granted by the Ministry of Agriculture on a proposal by the Protected Plant Variety Commission through the Central Board only at the request of the holder of the "Plant Variety Title" and in either of the following cases:

In the second of the above cases, the licensee shall be allowed a period not exceeding three years within which to discontinue his use of the variety covered by the license.

V. Denomination of Varieties

(l.1) be liable to cause scandal;

(l.2) indicate solely properties that may be possessed by other varieties of the same species;

(l.3) be inadequate for linguistic reasons.

(3) In general, denominations shall comply with international conventions on the subject to which Spain is party. Consequently, the Ministry of Agriculture shall enact such provisions as are necessary for the adaptation of the standards laid down in sub-section (2) of this Section to the conventions concerned.

14.-

(1) The denomination of a new plant variety shall be registered at the same time as the issuance of the "Plant Variety Title" (Law No. 12/1975, Section 14(1)).

(2) The breeder or his successor in title may not submit as the denomination of a new variety either a denomination already protected by a trademark relating to products which are identical or similar in Spain or in countries with which agreements on plant variety protection have been established, or a denomination liable to cause confusion with such a trademark, unless he undertakes to renounce his rights in the trademark as from the grant of the "Plant Variety Title." If the breeder or his successor in title nevertheless submits such a denomination, he may not, as from the time when the "Plant Variety Title" is registered, continue to exercise his rights under the trademark in respect of the products specified, unless international agreements require otherwise (Law No. 12/1975, Section 14(2)).

(3) The denomination given to a protected plant variety may not be registered as a trademark (Law No. 12/1975, Section 14(5)).

(4) Notwithstanding the foregoing paragraph, it shall be permitted, for marketing purposes, to add a trademark to the denomination of the new plant variety, if the breeder owns the trademark or is authorized to use it (Law No. 12/1975, Section 14(6)).

(5) Before a "Plant Variety Title" is entered in the Register of Protected Plant Varieties at the National Institute of Seeds and Nursery Plants, the denomination submitted for the new plant variety shall be notified to the Industrial Property Registry, in order that the latter may report on it (Law No. 12, 1975, Section 14(4)).

The said body shall have a period of 30 lawful days from the receipt of the communication in which to convey to the Registry of Protected Plant Varieties any objections that it may see fit to make, arising from the fact that the said denomination:

(a) had been filed as a trademark;

(b) may create confusion with a registered trademark.

After the grant of the "Plant Variety Title" for a given variety, and within a period of 15 lawful days from such grant by the Registry of Protected Plant Varieties, the following shall be communicated to the Industrial Property Registry:

(a) the denomination under which the variety is registered;

(b) where applicable, a copy of the instrument of renunciation, on the part of the holder of the "Plant Variety Title," of his trademark rights if such were previously owned.

(6) Independently of the communications that have to be exchanged by the Registries referred to in the preceding subsection on the subject of denominations, all the communications that are prescribed by international collaboration agreements on protection that may be or have been concluded by Spain shall also be made.

(7) If the denomination submitted by the breeder or his successor in title does not meet the requirements provided for in these Rules, the Registry of Protected Plant Varieties shall inform the applicant accordingly, who shall be allowed 30 days from the date of the communication in which to propose a new denomination. Where such new denomination is also not accepted, up to two further denominations may be proposed within 15 days from the notification sent by the Registry.

Where the applicant exhausts the period or the number of denomination proposals specified above, the Registry of Protected Plant Varieties may propose to him two successive denominations before expiration of a period of two months from the first notification; if the latter denominations are not accepted, the proceedings shall be suspended and the applicant shall be informed accordingly.

VI. Body in Charge of Plant Variety Protection

15. The functions entrusted to the Ministry of Agriculture under the Law on the Protection of Plant Varieties and under these Rules shall be exercised by the National Institute of Seeds and Nursery Plants, established by Law No. 11/1971, of March 30, 1971. The functions of the said Institute shall, in particular, be the following:

(a) preparation of the technical questionnaires which, for every species or group of species, have to be filed with the application for a "Plant Variety Title";

(b) receipt and processing of applications for "Plant Variety Titles";

(c) conduct of the preliminary examination for the assessment of the novelty, stability and homogeneity of a variety; when circumstances so dictate, collaboration agreements may be concluded to this end with other national or foreign bodies and institutions;

(d) publication of the Boletín del Registro de Variedades Protegidas;

(e) issuance of "Plant Variety Titles" after their grant by the Ministry of Agriculture;

(f) recording of registrations and cancellations of "Plant Variety Titles" in the Register referred to hereinabove;

(g) recording of granted license contracts;

(h) preparation and implementation of agreements concluded with international organizations or other countries on the protection of plant varieties;

(i) conduct of relations with international bodies or countries with which Spain has entered into agreements on the protection of plant varieties, except where the general legislation of the Spanish State provides otherwise;

(j) preparation and proposal of decisions concerning such sanctions as may be initiated by itself or at the request of third parties;

(k) drafting of regulations and standards, reports and all such documents as are necessary for the implementation and control of protection, and which have to be submitted to the Protected Plant Variety Commission for consideration;

(n( �/em> receipt of and compliance with requests addressed to it by judicial authorities in connection with any disputes that may arise concerning the protection of plant varieties;

(m) all others that are entrusted to it by law.

Protected Plant Variety Commission

16. The Protected Plant Variety Commission, established by the Law on the Protection of Plant Varieties, within the Central Board of the National Institute of Seeds and Nursery Plants, organized by Law No. 11/1971 of March 30, 1971, shall be composed as follows:

President: the President of the Central Board of the National Institute of Seeds and Nursery Plants;

Vice-President: the Director of the National Institute of Seeds and Nursery Plants;

Members: those members of the Central Board appointed by its President, among whom there shall be a representative of the National Institute of Agrarian Research and two agrarian representatives of the Trades Union Organization;

Legal Adviser: the Head of the Legal Department of the Ministry of Agriculture;

Technical Advisers: persons with recognized competence in botany, genetics, reproduction of seeds and nursery plants and legal problems relating to plant variety protection, appointed by the President;

Secretary: the Technical Administrator of Laboratories and Registers of Protected Commercial Varieties.

Tasks of the Commission

Among other tasks, the Protected Plant Variety Commission shall:

(a) propose to the Minister of Agriculture, after consideration of such reports as have been submitted to it, and through the Central Board of the Institute, the issuance, revocation, declaration of lapse and, if appropriate, annulment of "Plant Variety Titles";

(b) propose to the Minister of Agriculture, through the Central Board of the Institute, the grant or cancellation of compulsory licenses for use;

(c) propose to the Ministry of Agriculture, through the Central Board of the Institute, such provisions as are necessary for the establishment of relations between an enterprise and its employees concerning the ownership of a plant variety;

(d) enact such provisions as are necessary in order to safeguard the secrecy of plant varieties in respect of which "Plant Variety Titles" have been granted;

(e) inform the competent Ministry or Ministries, through the proper channels, of all matters relating to the possible establishment of reciprocity with foreign countries, and of everything related to the establishment of international agreements under which Spain has to take action in the interests of protection;

(f) propose, in general, the measures and rules intended for the protection of breeders' rights;

(g) propose, through the Central Board of the Institute, rules for the application of breeders' rights to the different genera or species;

(h) report on matters concerning plant variety protection submitted by the President for study;

(i) carry out any other tasks which may be entrusted to it by any law or rules.

General Standards Governing the Operation of the Commission

The constitution and operation of the Protected Plant Variety Commission shall be governed by the following provisions:

(a) the maximum number of members designated by the President that the Commission may comprise shall not exceed 12, a maximum of six of whom shall be ordinary members while the remainder shall be technical advisers;

(b) the technical advisers and members shall be designated for a maximum period of four years; their appointment may be renewed on expiration of their term of office;

(c) the President, and all the members constituting the Commission, shall observe secrecy regarding the deliberations and agreements that take place within the said Commission;

(d) when any member of the Commission is involved in the grant or rejection of a "Plant Variety Title," he may not take part in the deliberations concerning the variety covered by the said Title;

(e) the Commission may conduct business, and its agreements shall be valid, when the number of members present represents more than half of the total membership;

(f) the functions of the President of the Protected Plant Variety Commission shall be to:

(f.1) assume the representation to the Commission as a whole;

(f.2) convene and preside over the meetings of the Commission, which functions he may delegate to the Vice-President thereof;

(f.3) implement, with the assistance of the Secretary, the agreements adopted within the Commission;

(f.4) present to the Ministry of Agriculture the proposals agreed upon by the Protected Plant Variety Commission and such decisions as are adopted in accordance with the tasks assigned to him under the Law on the Protection of Plant Varieties and these Rules;

(f.5) designate the technical advisers and the ordinary members for the prescribed period;

(f.6) constitute such expert commissions as he considers necessary, which commissions shall be presided over by the Secretary of the Protected Plant Variety Commission;

(f.7) invite the attendance, with the right to speak but not to vote, of persons who have a recognized competence considered desirable under certain circumstances.

Bulletin of the Registry of Protected Plant Varieties (Boletín del Registro de Variedades Protegidas)

17.-

(1) The National Institute of Seeds and Nursery Plants shall periodically publish a Boletín del Registro de Variedades Protegidas, in which applications for registration, denominations submitted and denominations approved shall be recorded, as well as the grant of "Plant Variety Titles" and other non-confidential information, in order to ensure better public knowledge of the area concerned (Law No. 12/1975, Section 17(1)).

This publication shall be issued at least quarterly. Its main purpose shall be to bring to the notice of the public all applications for "Plant Variety Titles" and other information, in order that any interested party may make such objections as he considers appropriate, which objections shall, in all cases, be submitted in writing to the Registry of Protected Plant Varieties of the National Institute of Seeds and Nursery Plants within the periods specified hereinbelow.

The following chapters shall appear in the said publication:

(a) Applications for "Plant Variety Titles": if, after examination of the application, it is found to be in order, it shall be published in the Boletín, with the indication for each application of the reference number in the Register of Applications, the name and address of the applicant, and of the breeder where it is not the same as that of the applicant, and the denomination proposed for the variety. Where this is considered appropriate, one or more important characteristics may be mentioned which are thought to be capable of serving to classify the variety in any way;

(b) Denominations: all proposed denominations shall appear in another chapter, with references to the applicant and breeder. All proposals for changes in denomination of varieties previously covered by "Plant Variety Titles" shall also be published. Denominations that have been registered in different countries for the same variety may be indicated for the purposes of information;

(c) "Plant Variety Titles" Not Granted: another chapter shall include the varieties which are regarded as not warranting the grant of the corresponding Title, with an indication of the reference number in the Register of Applications, the name and address of the applicant and breeder, the denomination proposed and the date of rejection;

(d) "Plant Variety Titles" Granted: these Titles shall be published in the Boletín with an indication for each of them of the reference number in the Register of Applications, the reference number of the Title granted, the name and address of the title holder, and of the breeder where different from that of the title holder, the approved denomination of the variety covered by the Title, the duration of protection, and the date on which that protection expires;

(e) Licenses for Use: all licenses for use entered in the Register shall be mentioned, with an indication of the holder of the "Plant Variety Title," the licensee, the denomination of the variety and the date on which the license concerned was granted. Information shall also be published on plant varieties that have been made subject to compulsory licensing for use for reasons of national interest;

(f) Revocation and Lapse: another chapter shall record any revocation and lapse of granted Titles that occur, with a mention, in addition to the name and address of the title holder and breeder, of the dates on which the said acts took place and of the denominations of the varieties covered by the Titles.

In addition to the publication of the information specified above, a record shall be made in the Boletín of all transfers of Titles that take place, and, in general, of all information of a general character that is considered suitable for publication.

Any information concerning the Register of Commercial Varieties that has a bearing on the protection of plant varieties may also be included in the Boletín.

Any person who wishes to make an observation concerning the information published in the Boletín del Registro de Variedades Protegidas shall do so within a period of two months from its publication.

(2) The National Institute of Seeds and Nursery Plants shall issue such reports as are requested of it by the Courts of Justice concerning breeders' rights.

VII. Infringement and Penalties

18.-

(1) For the purposes of Section 7, any person who infringes breeders' rights in any of the following ways shall incur civil liability, and be obliged in all cases to furnish compensation for the damage and loss caused thereby:

(a) producing for commercial purposes or marketing reproductive material of the protected plant variety, in disregard of the provisions of Section 5(1);

(b) marketing plants or parts thereof normally marketed for purposes other than propagation, if they are then used as propagation material, in disregard of the provisions of Section 5(1);

(c) repeatedly using reproductive material of a protected plant variety for the production of propagation material of a new plant variety;

(d) contracting for the transport of the propagation material of a protected plant variety to a territory outside the scope of application of the Law on the Protection of Plant Varieties without special authorization from the title holder.

(2) All those making any other use of the protected plant variety or those who in any other way infringe the breeders' rights granted by the Law on the Protection of Plant Varieties shall be obliged to furnish compensation for the damage and loss caused thereby only when their conduct involves fault or negligence. The existence of fault shall be presumed from the time when the person responsible for such acts has been warned by the holder of the "Plant Variety Title" about the existence of the same and required to cease infringing the said Title.

(3) The compensation for damage and loss in favor of the holder of the "Plant Variety Title" shall include not only the amount of the loss and of the profit which would otherwise have been obtained, but also damages for the loss of the goodwill attaching to the plant variety caused by inadequate use made by the infringer.

(4) The relevant general legislation on limitation of actions shall apply to the civil action for compensation of damage and loss.

(5) In addition to compensation for damage and loss, the injured title holder shall be entitled to:

(a) the cessation of the act infringing his right;

(b) the withdrawal from circulation of all the plant material obtained through legal acts that is in the possession of any of the persons responsible, and its destruction if this is indispensable;

(c) reversion to himself, as his own property, of the plant material referred to in the last-mentioned paragraph, in which case allowance for its value shall be made in calculating the compensation for damage and loss. If the value of the above-mentioned plant material exceeds the damages granted, the injured title holder shall compensate the infringer for the excess;

(d) the publication of the judgment, at the expense of the losing party, in the Boletín referred to in Section 17 of these Rules (Law No. 12/1975, Section 18).

19.-

(1) Any willful infringement of the exclusive right given by the "Plant Variety Title" to its holder shall be punished according to the provisions of Section 534 of the Criminal Code.

(2) Criminal proceedings may only be brought by the injured title holder or his licensee, or his successors in title.

(3) The relevant general legislation on limitation of actions shall apply to criminal proceedings and to the civil action resulting from the crime (Law No. 12/1975, Section 19).

20.-

(1) Acts carried out that are not in compliance with the provisions of the Law on the Protection of Plant Varieties, these Rules and any additional provisions that may be enacted shall be considered administrative offenses and shall be punished according to the following Sections, without prejudice to the competence of the Courts of Justice, as regards the civil or criminal liabilities resulting from these acts.

(2) Administrative offenses shall be categorized according to the nature of the acts concerned; they may be fraudulent, clandestine or against the rules.

(3) The following shall be considered fraudulent:

(a) acts of assignment of plant material which, while purporting to be protected by a "Plant Variety Title," do not correspond to the features recorded in the Register of Protected Plant Varieties;

(b) acts of noncompliance, imputable to any of the interested parties, with the conditions included in the license to use a protected plant variety and affecting the intrinsic qualities of the material and the circumstances upon which the decision to issue the "Plant Variety Title" was based.

(4) Those acts which evade or attempt to evade or make difficult the supervision of the activities governed by the Law on the Protection of Plant Varieties, these Rules and additional provisions shall be considered clandestine.

(5) Any other offense shall be considered merely against the rules.

21. The laws and rules on the suppression of fraud in respect of agricultural products or of materials necessary for agriculture shall apply as subsidiary legislation (Law No. 12/1975, Section 21).

22.-

(1) Fraudulent offenses shall be punished with fines of between 20,000 and 100,000 pesetas; the expenses incurred in the verification of the fraud shall be borne by the offender and, where appropriate, the plant material giving rise to the fine shall be confiscated.

(2) Clandestine offenses shall be punished with fines of between 10,000 and 50,000 pesetas and by the confiscation of the merchandise.

(3) Offenses which are merely against the rules shall be punished with fines of between 1,000 and 25,000 pesetas (Law No. 12/1975, Section 22).

23. The determination, within given limits, of the amounts of the fines established in the last-mentioned Section, shall be fixed in each case according to the importance of the offense, the injury caused, the degree of bad faith on the part of the infringer, his behavior and his previous record and, in general, any circumstances which render him the more or the less responsible (Law No. 12/1975, Section 23).

24.-

(1) In the case of a second offense, the fines shall be 50 percent higher than those applicable under the Law on the Protection of Plant Varieties.

(2) Should the person committing a second offense have committed a clandestine or fraudulent offense, the fines may be raised to three times those applicable, and the suspension of the activity in relation to which the offense arose may be ordered for a period of up to one year.

(3) A person who has, within the preceding five years, been punished for disregarding the provisions of the Law on the Protection of Plant Varieties shall be considered a second offender.

(4) The Ministry of Agriculture may decide, if appropriate, on the publication of sanctions imposed in the Official Journal, for exemplary purposes (Law No. 12/1975, Section 24).

VIII. Fees

25. The fees established by the Law on the Protection of Plant Varieties and subject to the legislation contained in the Law of December 26, 1958, on Fees and on Duties, the Consolidated Taxation Law of December 28, 1963, and the additional provisions trader those Laws, shall be governed by the provisions of those Laws and those of these Rules.

26. For the purposes of the fees established in the aforementioned Laws, the plant species or groups thereof which are subject to protection shall be divided into the following groups:

- First group: cereals, oil seeds, lucerne, cotton, sugar and fodder beet, vetch, potatoes, peas, beans and broad butter beans;

- Second group: fruit trees, roses, carnations and strawberries;

- Third group: lettuce, tomatoes, onions, melons, sainfoin, red clover and white clover;

- Fourth group: the other species not included in the above-mentioned groups.

27.-

(1) The following fees shall be paid for the services listed below, according to the types which are also included:

[omitted]

(2) The natural persons or legal entities who receive either from the Public Administration or from the Registry of Protected Plant Varieties any of the services listed in the preceding subsections, whatever the nature of their request, shall be obliged to pay the fees.

(3) The fees for the processing of applications for "Plant Variety Titles," the claim of the right of priority, changes of denomination, dispatch of copies, certificates and duplicates of any documents, registration of licenses for use, dispatch of copies of Titles and certificates attesting the refusal and reinstatement of Titles shall be payable when the appropriate services are requested.

The fees for the carrying out of the trials that constitute preliminary examination shall be paid on presentation of an account by the National Institute of Seeds and Nursery Plants at the time of the rendering of the services.

The fee for the "Plant Variety Title" shall be payable on the date of grant, and the fee for the maintenance of breeders' rights shall be payable on the day following that on which the period of one year covered by the previous fee expires. The appropriate accounts shall be computed and notified by the National Institute of Seeds and Nursery Plants and paid within the periods laid down by the Collection Statute of November 14, 1968.

When the payment of a fee for the annual maintenance of breeders' rights has not been effected within the periods laid down by the legislation referred to above, the necessary procedures for the revocation of the Title shall be commenced in accordance with the provisions of Section 11(3) of these Rules.

(4) The management, charging and collection of the fees referred to above shall be effected, without prejudice to the higher authority of the Ministry of Finance, by the National Institute of Seeds and Nursery Plants, to which end it shall be empowered to:

(a) compute and notify the fees referred to in these Rules, the collection of which shall take the form of immediate payment to the Treasury, according to the instructions of the Ministry of Finance;

(b) open restricted accounts at a private bank or at savings banks in the manner provided for in Chapter III of the Ministerial Order on Finance of July 23, 1960, subject to the limitations and obligations specified therein, the credit balances of which accounts shall be paid to the General Directorate of the Treasury, in the "Group of Treasury Operations-Deposits-Proceeds from Fees and Parafiscal Levies," Subsidiary Account 21, item 25: "Fees for the Protection of Plant Varieties," for eventual application to the budget of the revenue of the State.

(5) The scales of charges to be made for subscriptions to, insertions in and sale of the Boletín del Registro de Variedades Protegidas, for photocopies, for information and documentation services and publications in general, incumbent on the National Institute of Seeds and Nursery Plants, shall be established in accordance with the provisions of Section 11 of the Law on the Legal Status of Autonomous State Bodies of December 26, 1958.

IX. Procedure and Appeals

28.-

(1) The procedure to be followed for the processing of the dossiers governed by these Rules shall be, in addition to that specifically laid down therein, that established in the Law on Administrative Procedure of July 17, 1958, which shall also regulate the appeals which interested parties may bring against any act or decision pronounced.

(2) It shall be a function of the National Institute of Seeds and Nursery Plants to collect all available evidence and information on dossiers likely to involve a decision imposing a fine and to formulate proposals as to how dossiers should be decided, doing so on its own initiative or pursuant to a request from the interested parties or from the competent authorities (Law No. 12/1975, Section 28(2)).

(3) The decision shall be taken by:

(a) the Service for Defense against Frauds and for Agricultural Analyses, when the amount of the fine is not over 25,000 pesetas;

(b) the competent Director General, when the amount of the fine is over 25,000 and does not exceed 50,000 pesetas;

(c) the Minister of Agriculture, when the amount of the fine is over 50,000 pesetas.

(4) The limitation period for infringement of these Rules shall be five years from when they are committed.

Additional Provisions

(1) The amounts of the fines established in absolute quantities in pesetas may be revised by the Government, through the application of coefficients of correction, according to the average price of the objects or products in question.

Transitional Provisions

(1) The breeder of a plant variety which is no longer new at the time when protection of a corresponding species is established may, in the following instances and in accordance with the Law on the Protection of Plant Varieties, request the protection of his rights:

(a) if a patent has been granted for a plant variety in Spain or in any other country with which an international agreement on the protection of breeders' rights has been established;

(b) if a "Plant Variety Title" or equivalent title has been issued in any country or countries with which Spain has established an agreement on the protection of breeders' rights;

(c) if the plant variety has been registered in a list of commercial varieties officially published in Spain.

The application for the protection of breeders' rights in respect of the varieties shall be submitted within a period not exceeding six months in the cases referred to in paragraphs (a) and (b) of this transitional provision and within a period of 12 months in the case provided for in paragraph (c) thereof, from the time of promulgation of the detailed provisions on the entry into force of protection for each genus, species or group of species concerned.

(2) The "Plant Variety Title" for varieties referred to in the first Transitional Provision shall be effective as from the date of filing of the application. The period of time elapsed after the filing of an application for a patent, or after the grant of a "Plant Variety Title" or after its registration in the List of Commercial Varieties, shall, where the conditions set forth in paragraph (c) of the first Transitional Provision have been complied with, be deducted from the period of protection.

For these purposes, the date of recording of a variety in the List of Commercial Varieties shall be the date of publication of the said List or the date on which the reproductive material for the said variety has been officially produced for the first time. Where both circumstances coincide, the earlier date shall be considered the date of recording for the purposes of the provisions of the preceding paragraph of this Transitional Provision.

(3) Plant varieties that were being marketed before the Law on the Protection of Plant Varieties came into force may continue to be freely produced and offered for sale, as long as the breeder does not make use of the right granted to him by the first Transitional Provision.

If the said right is made use of, the breeder or his successor in title shall be obliged to grant licenses for use under reasonable conditions to any natural person or legal entity so requesting and having produced under official control seeds or reproductive material of the varieties concerned. For these purposes only, the National Institute of Seeds and Nursery Plants may, when it considers this appropriate, specify conditions that have to be included in the contract for the license for use.

(4) The National Institute of Seeds and Nursery Plants shall submit to the competent bodies for approval the plans for services that will be made necessary by the implementation of these Rules. The appointment of new staff shall be made in accordance with the provisions of Decree No. 2043/1971, by which the Statute Governing the Staff Employed by Autonomous Bodies was approved.

(5) The Protected Plant Variety Commission shall be established before any provision on the grant of protection to a genus, species or group of species enters into force.

(6) Until the additional provisions for the application of these Rules to the various species or groups of species enters into force, the system of protection applicable to them shall continue to be that contained in the Law on Industrial Property and the Orders of the Ministry of Agriculture of May 23, 1967, by which Rules were enacted for the application of the provisions in force on fraud to the growing of protected varieties of roses and carnations, and of June 26, 1973, by which the Provisional Register of Commercial Varieties of Plants was established.

Final and Derogative Provisions

(1) These Rules shall be applicable to the entire national territory.

(2) The Ministry of Agriculture shall be empowered, within the bounds of his competence, to enact additional provisions for the implementation and adaptation of these Rules, as well as detailed provisions on the entry into force of the said Rules, with respect to each genus, species or group of species.

(3) Any provisions of equal or lesser rank that are contrary to the provisions of these Rules are hereby repealed and, in particular, without prejudice to the application of the sixth Transitional Provision under the conditions specified therein: Section 3(9) of Decree No. 2177/1973, of July 12, regulating the sanctions for fraud involving agricultural products; the Order of the Ministry of Agriculture of May 23, 1957, containing rules for the application of the provisions in force on fraud to the growing of protected varieties of roses and carnations; the Order of the Ministry of Agriculture of July 14, 1959, organizing the classification of fruit trees; the Order of the Ministry of Agriculture of July 26, 1973, establishing the Provisional Register of Commercial Varieties of Plants, but only insofar as they concern the protection of new plant varieties.

Annex

List of Classes

Classification of genera and species for the purposes of the provisions of Section 13(2) on the denominations of plant varieties.

Class 1: Avena, Hordeum, Secale, Triticum.

Class 2: Panicum, Setaria.

Class 3: Sorghum, Zea.

Class 4: Agrostis, Alopecurus, Arrhenatherum, Bromus, Cynosurus, Dactylis, Festuca, Lolium, Phalaris, Phleum, Poa, Trisetum.

Class 5: Brassica oleracea.

Class 6: Brassica napus, B. campestris, B. rapa, B. juncea, B. nigra, Sinapis.

Class 7: Medicago, Ornithopus, Onobrychis, Trifolium.

Class 8: Lupinus albus L., L. angustifolius L.; L. luteus L.

Class 9: Vicia faba L.

Class 10: Beta vulgaris L. var. alba DC; Beta vulgaris.

Class 11: Beta vulgaris ssp. vulgaris var. conditiva Alef. (syn. Beta vulgaris L. vat. rubra L.), Beta vulgaris L. var. cicla L.; Beta vulgaris L. ssp.

Class 12: Lactuca, Valerianella, Cichorium.

Class 13: Cucumis sativus.

Class 14: Cucumis melo, Cucurbita.

Class 15: Anthriscus, Petroselinum.

Class 16: Daucus, Pastinaca.

Class 17: Anethum, Carum, Foeniculum.

Class 18: Chamaecyparis, Juniperus, Thuya, Taxus.

Class 19: Picea, Abies, Pseudotsuga, Pinus, Larix.

Class 20: Malus, Pyrus.

Class 21: Solanum tuberosum L.

Class 22: Nicotiana rustica L.; N. Tabacum L.

Class 23: Helianthus tuberosus.

Class 24: Helianthus annuus.

Any genus that is not included in this list shall be regarded as constituting a class of its own.

* Spanish title: Reglamento general sobre protección de obtenciones vegetales.

Entry into force: July 11, 1977.

Source: Boletín oficial del Estado, No. 161, July 11, 1977.

3 See Industrial Property, 1975, p. 289.

4 Royal Decree No. 1674/1977 of June 10, 1977, published on July 11, 1977.