NETHERLANDS
ACT OF 19 FEBRUARY 2005, CONTAINING NEW REGULATIONS GOVERNING
THE APPROVAL OF VARIETIES OF PLANTS, THE MARKETING OF PROPAGATING
MATERIAL, AND THE GRANTING OF BREEDER'S RIGHTS
(SEEDS AND PLANTING MATERIALS ACT, 2005)*
Bulletin of Acts, Orders, and Decrees of the Kingdom of the Netherlands
Year 2005
184
Act of 19 February 2005, containing new regulations governing the approval of varieties of plants, the marketing of propagating material, and the granting of breeder’s rights (Seeds and Planting Materials Act [Zaaizaad- en plantgoedwet] 2005)
We Beatrix, by the Grace of God, Queen of the Netherlands, Princess of Orange-Nassau, etc., etc., etc.
To all who shall see or hear these presents, greeting! Be it known:
Having regard to the necessity of imposing new regulations for the approval of varieties of plants, the marketing of propagating material, and the granting of breeder’s rights; to the International Convention for the Protection of New Varieties of Plants, signed in Paris on 2 December 1961 (Treaty Series of the Kingdom of the Netherlands [Tractatenblad] 1962,117), as most recently amended by an instrument of 19 March 1991 (Treaty Series 1992, 52); and to the various European directives on the marketing of propagating material of various species of plants;
We, therefore, having heard the Council of State, and in consultation with the States General, have approved and decreed, as We herby approve and decree, the following:
CHAPTER 1. DEFINITION OF TERMS
Section 1
For the purposes of this Act and the provisions based upon it, the following terms shall be understood to have the meanings assigned to them below: - a.
- Our Minister: Our Minister of Agriculture, Nature, and Food Quality
- b.
- the Board: the Plant Varieties Board [Raad voor plantenrassen] referred to in Section 2;
- c.
- variety: a group of plants within a single botanical taxon of the lowest known rank, which group – regardless of whether it complies fully with the provisions of the present Act regarding the granting of a breeder’s right – can be
-defined on the basis of the expression of the characteristics resulting from a certain genotype or a combination of genotypes;
-distinguished from all other plant groups on the basis of the expression of at least one of the said characteristics; and
-considered as a unit with regard to its suitability for being propagated unchanged; - d.
- the Register of Varieties: the Netherlands Register of Varieties referred to in Section 25;
- e.
- stand: a clearly delimited and, as regards composition, sufficiently uniform population of trees;
* Translation provided by the Dutch Authorities. This Act replaces the Seeds and Planting Material Act. The Law entered into force on February 1, 2006.
Netherlands The Seeds and Planting Material Act 2005
- f.
- propagating material: plants and plant parts intended for the cultivation or propagation of plants or that are used for such purposes;
- g.
- marketing: commercial provision or stocking, displaying or offering for sale, selling, possessing with a view to sale, and also providing, supplying or transferring to a third party free of charge;
- h.
- maintainer: a person who ensures that an approved variety is maintained;
- i.
- supplier: any natural person or legal entity who/ that – other than for use on his/its own holding – professionally propagates, produces, holds, processes, treats, imports, or markets propagating material;
- j.
- breeder: a person who has propagated a variety through his own work or has discovered or developed that variety, or that person’s legal successor;
- k.
- Union: the International Union for the Protection of New Varieties of Plants formed by the states that are party to the International Convention for the Protection of New Varieties of Plants, signed in Paris on 2 December 1961 (Treaty Series 1962,117), as most recently amended by an instrument of 19 March 1991 (Treaty Series 1992, 52);
- l.
- Union State: a state that is a member of the Union;
- m.
- trade directive or regulation: a directive or regulation of the Council of the European Union, or of the European Parliament and the Council of the European Union jointly, that is wholly or partly based on Articles 37, 52, 95, 152, or 175 of the Treaty Establishing the European Community, that relates to the plants sector and that sets rules regarding economic activity in that sector, the interests of customers, the internal market, quality, production with a view to marketing and marketing of propagating material, the environment, public health, technical requirements, or the provision of information;
- n.
- delegated directive, delegated regulation, or delegated decision: a directive, regulation, or decision of the Commission of the European
Communities based on a trade directive or regulation.
CHAPTER 2. PLANT VARIETIES BOARD
Section 2
There shall be a Plant Varieties Board, whose duties shall be: - a.
- to register varieties and stands in the Register of Varieties pursuant to Chapter 4 of the present Act;
- b.
- to approve varieties and stands pursuant to Chapter 5 of the present Act;
- c.
- to grant breeders’ rights pursuant to Chapter 7 of the present Act;
- d.
- to draw up and announce national lists of approved varieties and stands pursuant to Section 26; and
- e.
- to approve plant groups and register them in the Register of Varieties pursuant to Section 85.
Section 3 - The Board shall consist, including its President, of a minimum of seven and a maximum of eleven members, who shall be appointed and discharged by Our Minister. They shall be appointed on the basis of their expertise in the area of the duties with which the Board is charged. Persons who are subordinates of Our Minister shall not be appointed to the Board.
- The Board may designate one or more Vice-Presidents from its midst.
- A Secretary and one or more Assistant Secretaries, to be appointed by Our Minister, shall be attached to the Board.
- In order to support it in its work, the Board shall have an office headed by the Secretary referred to in Subsection 3.
- One or more departments may be appointed within the Board by means of a general administrative order [algemene maatregel van bestuur].
Section 4 - The appointment of the President and other members shall be for a period of five years.
- Upon resigning their position, the persons referred to in Subsection 1 shall immediately be eligible for reappointment. They may be reappointed no more than twice.
- Our Minister may suspend or prematurely discharge the persons referred to in Subsection 1 because of their being unsuitable or incompetent for the position they hold or for other serious reasons regarding their person. The persons concerned may also be discharged at their own request.
- Any of the persons concerned may be suspended or discharged due to serious reasons regarding his person within the meaning of Subsection 3:
- a.
- if he is convicted of a criminal offence by means of a judicial decision that has become final and conclusive or has been sentenced to a term of imprisonment by means of such decision;
- b.
- if, by means of a judicial decision that has become final and conclusive, he has been placed under legal guardianship, has been declared bankrupt or subject to a debt rescheduling arrangement for natural persons, has been granted a suspension of payments, or has been imprisoned for debt;
- c.
- if by his action or omission he causes serious harm to the activities of the Board or to confidence in the Board; or
- d.
- if he contravenes the confidentiality obligation within the meaning of Section 2:5 of the General Administrative Law Act [Algemene wet bestuursrecht] or acts contrary to Section 5 of this Act.
- A person appointed to replace a member of the Board whose position has fallen vacant shall resign at the point when the person he has replaced would be required to resign.
- Our Minister shall allocate remuneration to the members of the Board.
Section 5 - The President of the Board, its other members, the Secretary, and the Assistant Secretaries shall not participate in the consideration of cases in which they are in any way personally involved.
- The President and other members of the Board shall not hold any other additional positions if such is undesirable with a view to the proper fulfilment of their duties, the maintenance of their independence, or confidence in such independence.
- The persons referred to in Subsection 2 shall inform Our Minister of their intention to accept an additional position.
- Additional positions other than those arising from a Board member’s position as such shall be published. Such publication shall be effectuated by a list of additional positions being submitted for perusal by the Board and by Our Minister.
Section 6 - The costs for the Board shall be borne by the national budget.
- Our Minister shall set fees for:
- a.
- processing requests for registration and entry in the Register of Varieties;
- b.
- processing applications for the approval of varieties and stands;
- c.
- processing applications for a breeder’s right;
- d.
- carrying out the technical investigation that is necessary to assess applications within the meaning of (b) and (c) above;
- e.
- the provision of copies and extracts from the Register of Varieties;
- f.
- each year that a variety or stand is included in the Register of Varieties in connection with its approval or in connection with the granting of a breeder’s right;
- g.
- the provision of advice within the meaning of Section 58(4); and
h. the processing of applications for approval of plant groups within the meaning of Section 85.
3. The fees referred to in Subsection 2: - a.
- shall be directly related to the activities referred to in (a) to (h) of Subsection 2 ;
- b.
- shall not amount to more than is necessary to cover the costs incurred due to the various different activities; and
- c.
- shall be set separately for each plant or for each category of plants to which the activities of the Board pertain.
- Specific rules shall be set by ministerial regulation with respect to the imposition and collection of the said fees and to their periodical revision to take account of trends in wages and prices.
- If payment is not effectuated within the period set by the Board, the Board shall be empowered to collect the amount owing, plus the statutory interest and the costs relating to collection, by means of a writ of execution. The writ of execution shall be served by means of a bailiff’s notification at the expense of the party that owes the said amount in accordance with Section 45 ff. of Book 1 of the Dutch Code of Civil Procedure [Wetboek van Burgerlijke Rechtsvordering] and shall constitute entitlement to enforcement within the meaning of Section 430 of Book 2 of the said Code.
- For a period of six weeks after the date of service, it shall be possible to lodge an objection to the writ of execution by issuing a writ of summons against the State. The lodging of such objection shall suspend enforcement of the writ of execution. A court of law may lift the suspension of enforcement at the request of the State.
- The Board shall not process any documents or issue any copies or extracts from the Register of Varieties until the amount owing pursuant to the present section has been paid.
Section 7 - The Board may examine witnesses and experts in connection with the approval of varieties and stands and the granting of a breeder’s right.
- Any person who is called by the Board as a witness shall be obliged to comply.
- Sections 191 and 203(2) and (3) of the Code of Civil Procedure shall apply mutatis mutandis to witnesses.
- he Board may order that witnesses who, though duly summoned, have failed to appear shall be brought before it by the public authorities.
- Sections 197 to 199, 203, and 205 of the Code of Civil Procedure shall apply mutatis mutandis to the examination of witnesses.
- Experts shall carry out their task impartially and make their reports to the best of their knowledge.
Section 8
1. The Board shall adopt administrative regulations specifying in any case: - a.
- the working methods of the Board and the division of duties between its members;
- b.
- the summoning of applicants, persons making a request, and other interested parties, as well as witnesses and experts;
- c.
- the monetary remuneration to be paid to witnesses and experts.
- In the said administrative regulations, the Board may assign the authority to represent it, both at law and otherwise, to one or more of its members or to the Secretary. The Board may provide that such authority to represent it shall apply solely to certain specific matters.
- In the administrative regulations referred to in Subsection 1, the Board may assign duties and powers to one or more of its members or to the Secretary.
4. The said administrative regulations shall require the approval of Our Minister. Our Minister may refuse such approval if he considers that there is a conflict with the law or on the grounds that he believes that the said regulations impede the proper fulfilment of the tasks of the Board.
Section 9 - Before 1 July of each year, the Board shall draw up an annual report on its work and general policy, and specifically on the efficiency and effectiveness of its work and working methods during the previous calendar year.
- The said annual report shall be submitted to Our Minister and to both houses of the States General and shall be made public.
Section 10
1. As regards the exercise of its tasks and powers, the Board shall ensure: - a.
- timely preparation and implementation;
- b.
- the quality of the procedures adopted;
- c.
- the careful treatment of persons and institutions coming into contact with it;
- d.
- the careful treatment of any objections or complaints that it may receive.
- The Board shall make provisions allowing persons and institutions coming into contact with it to make proposals for improvements in its working methods and procedures.
- In the annual report referred to in Section 9, the Board shall report on what it has undertaken to implement Subsections 1 and 2.
Section 11
1. The Board shall provide Our Minister, on request, with the information required for him to perform his task. Our Minister may require that he be enabled to inspect business data and records insofar as such is necessary for him to perform his task.
2. In providing the information referred to in Subsection 1, the Board shall if necessary indicate which information is of a confidential nature. The confidentiality of the said information may arise from the nature of the information or from the fact that natural persons or legal entities provided that information to the relevant body on condition that it should be classed as confidential.
Section 12 - Our Minister may adopt guidelines regarding the fulfilment of the Board’s tasks.
- The said guidelines shall be published in the Government Gazette [Staatscourant].
Section 13 - Our Minister shall be empowered to nullify a decision adopted by the Board.
- Such nullification shall be announced in the Government Gazette.
Section 14 - Should Our Minister consider that the Board is seriously neglecting its task, he shall be empowered to take the necessary measures.
- Except for urgent cases, the said measures shall not be taken until the Board has been given the opportunity to carry out its task properly within a period to be determined by Our Minister.
- Our Minister shall immediately inform both houses of the States General of measures he has taken within the meaning of Subsection 1.
Section 15
Before 1 April of each year, the Board shall submit an annual draft budget for the following year to Our Minister.
Section 16
If significant differences arise or seem likely to arise in the course of the year between the actual and budgeted revenue and charges, or income and expenditure, the Board shall immediately inform Our Minister, stating the reasons for the said differences.
Section 17
Pursuant to the relevant civil service regulations, the Board shall ensure that the necessary technical and organisational facilities are in place to ensure the security of its data against loss or damage, and against unauthorised perusal, alteration, or disclosure.
Section 18
Within four years of this Act entering into force, and subsequently every four years, Our Minister shall provide both houses of the States General with a report regarding the efficiency and effectiveness of the manner in which the Board operates.
CHAPTER 3.
TESTING INSTITUTIONS
Section 19
- By means of a general administrative order, one or more legal entities under private law, with full statutory powers, shall be charged with the task of testing propagating material and issuing supporting documentation or distinguishing marks to implement the provisions of or pursuant to Chapter 6 of the present Act.
- The testing referred to in Subsection 1 shall be intended to determine whether propagating material complies with the rules of or pursuant to Chapter 6 of the present Act, including by studying the propagating material or its origin by means of sampling and the performance of tests.
- By means of a general administrative order within the meaning of Subsection 1, a testing institution appointed pursuant to that subsection may also be charged with the task of recognising or registering suppliers, as referred to in Section 42.
Section 20 - A testing institution designated pursuant to Section 19 shall not operate in the pursuit of profit.
- The said testing institution shall adopt regulations specifying the manner in which testing will be carried out and the manner in which it will issue supporting documentation and distinguishing marks. The said regulations shall require the approval of Our Minister. Our Minister may refuse such approval if he considers that there is a conflict with the law or on the grounds that he believes that the said regulations impede the proper fulfilment of the tasks of the testing institution.
Section 21
1. Insofar as the costs incurred by a testing institution relate to the statutory tasks within the meaning of Section 19, they shall be covered by the fees to be determined and charged by the testing institution for: - a.
- granting consent within the meaning of Section 39(6);
- b.
- carrying out testing within the meaning of Section 40;
- c.
- issuing supporting documentation and distinguishing marks within the meaning of Section 41;
- d.
- processing applications for recognition or registration of suppliers within the meaning of Section 42, or processing applications for renewal or alteration of such recognition or registration;
- e.
- maintaining a recognition or registration within the meaning of (d); and
- f.
- the provision of information within the meaning of Section 64.
2. The fees referred to in Subsection 1 shall require the prior approval of Our Minister. Our Minister may refuse such approval if he considers that there is a conflict with the law or the public interest.
3. The fees referred to in Subsection 1: - a.
- shall relate directly to the activities referred to in that subsection
- b.
- shall not amount to more than is necessary to cover the costs incurred due to the various different activities; and
- c.
- shall be set separately for each plant or for each category of plants to which the activities of the testing institution pertain.
- Specific rules shall be set by ministerial regulation with respect to the imposition and collection of the said fees and to their periodical revision to take account of trends in wages and prices.
- If payment is not effectuated within the period set by the testing institution, the testing institution shall be empowered to collect the amount owing, plus the statutory interest and the costs relating to collection, by means of a writ of execution. The writ of execution shall be served by means of a bailiff’s notification at the expense of the party that owes the said amount in accordance with Section 45 ff. of Book 1 of the Code of Civil Procedure and shall constitute entitlement to enforcement within the meaning of Section 430 of Book 2 of the said Code.
- For a period of six weeks after the date of service, it shall be possible to lodge an objection to the writ of execution by issuing a writ of summons against the legal entity to which the testing institution belongs. The lodging of such objection shall suspend enforcement of the writ of execution. The court may lift the suspension of enforcement at the request of the said legal entity.
- The testing institution shall not carry out activities within the meaning of Subsection 1, or shall cease such activities, if the fee payable pursuant to this section is not paid.
Section 22
1. Amendments to the articles of a testing institution designated pursuant to Section 19 shall require the consent of Our Minister before taking effect. Our Minister shall ensure that the said articles are published in the Government Gazette.
2. The appointment and discharge of the President of a testing institution shall require the prior consent of Our Minister.
Section 23
The testing institution shall keep separate accounts in respect of the tasks assigned to it by or pursuant to the present Act and in respect of work arising directly from those tasks, and shall account separately for those tasks and that work in its annual accounts.
Section 24
Sections 9 to 14 and Sections 17 and 18 shall apply mutatis mutandis.
CHAPTER 4.
THE REGISTER OF VARIETIES
Section 25
- There shall be a Netherlands Register of Varieties for the registration of varieties and stands. The said register shall be public.
- The following shall be registered in the Register of Varieties:
- a.
- varieties and stands that have been approved pursuant to Chapter 5 of the present Act;
- b.
- varieties for which a breeder’s right has been granted pursuant to Chapter 7 of the present Act;
- c.
- plant groups within the meaning of Section 85.
- Registration shall be effectuated by the Board recording the description characterising the variety adopted by the Board and, insofar as a variety is concerned, the denomination adopted by the Board.
- The registered denomination shall be deemed to be the generic designation.
- By or pursuant to a general administrative order, rules shall be laid down regarding the structure of the Register of Varieties and the information to be given when varieties, stands, and plant groups within
the meaning of Subsection 2 are registered. The information referred to in the first sentence of this Subsection shall in any case comprise: - a.
- a record of the technical investigation carried out in order for a variety or stand to be approved or for a breeder’s right to be granted, within the meaning of Section 35(1)(a, b, and c) or Section 49(7);
- b.
- where approved varieties are concerned: a record of the maintainer or maintainers;
- c.
- where stands are concerned: a record of the owner or manager and the growing location of the stand.
Section 26 - In order to implement binding decisions of the Council of the European Union, of the European Parliament and the Council of the European Union jointly, or of the Commission of the European Communities, the Board shall draw up national lists of the varieties and stands of a plant that have been approved in the Netherlands, doing so on the basis of the information contained in the Register of Varieties.
- The establishment of a national list within the meaning of Subsection 1 shall be announced in the Government Gazette.
Section 27 - The denomination referred to in Section 25(3) shall be suitable to identify the variety to which it applies.
- The denomination shall differ, specifically:
- a.
- if a variety is concerned for which a breeder’s right has been granted: from any denomination used in any Union State to refer to an existing variety of the same or a related plant;
- b.
- where other varieties are concerned: from any denomination used in any Member State of the European Union, or in another state that is a party to the Agreement on the European Economic Area, to refer to an existing variety of the same or a related plant.
- The denomination shall not be contrary to public order or be offensive.
- The denomination shall be the same as that already registered for the variety in any Union State, or in any Member State or other state that is a party to the Agreement on the European Economic Area, provided that that denomination is suitable for use in the Netherlands.
- No denomination shall be adopted that so closely resembles a trade name or trademark that using it might give rise to confusion regarding the nature or origin of goods.
- More detailed rules regarding denominations shall be laid down by ministerial regulation in order to implement a binding decision of the Council of the European Union, of the European Parliament and the Council jointly, or of the Commission of the European Communities. In drawing up the rules referred to in the first sentence of this subsection, account shall also be taken of the recommendations adopted by the Council of the European Union regarding the nomenclature for varieties for which a breeder’s right has been granted.
Section 28 - Before adopting a denomination, the Board shall announce its intention to do so in the Government Gazette.
- Within eight weeks after the announcement referred to in Subsection 1, an interested party may submit objections to the denomination pursuant to Section 27(5).
- The Board shall not adopt a denomination before it has decided on the objections referred to in Subsection 2.
- The Netherlands Industrial Property Office [Bureau voor de Industriële Eigendom] shall provide the Board, on request, with information regarding trademarks that are registered with it.
Section 29 - When applying for the granting of a breeder’s right or for the approval of a variety, the applicant shall also submit a proposal for the denomination of the variety.
- The applicant may also restrict itself to proposing a provisional denomination. In that case, the applicant shall be obliged to submit a proposal for a definitive denomination at a time to be specified by the Board.
- The proposal for the denomination shall be accompanied by a deed stating that if the proposed denomination is registered, the applicant relinquishes the rights that may accrue to him in any Union State or in any Member State of the European Union, or another state that is a party to the Agreement on the European Economic Area, in respect of the same or similar goods.
- The Board shall adopt the proposed denomination, or the denomination within the meaning of Section 27(4), unless it considers that doing so would be contrary to the provisions of Section 27. In that event, the Board shall give the applicant the opportunity to propose a different denomination.
- The Board shall provide the Netherlands Industrial Property Office and the Office of the Union, on request, with information regarding the denominations that are registered with it.
Section 30 - If the use of a registered denomination for propagating material of the variety for which this has been registered is prohibited by a judicial decision on the grounds of a right accruing to another party in respect of that denomination, the Board, at the request of any of the parties concerned, shall delete the registered denomination and register a provisional denomination, doing so in consultation with the party that has an interest in the approval of a variety or with the holder of the breeder’s right.
- The Board shall adopt an amended denomination after giving the party that has an interest in the approval of a variety or the holder of the breeder’s
right the opportunity to propose a different denomination within a set period of time, and shall then register the amended denomination. Section 28 shall apply mutatis mutandis.
3. Should it be established that a variety cannot be included under the registered denomination in a common list of varieties for the plant to which the variety belongs that has been adopted by the Commission of the European Communities, the Board, upon receiving a request to that effect from the holder of the breeder’s right or from the party that requested that the variety be approved, shall delete a registered denomination and register a provisional denomination. Subsection 2 shall apply mutatis mutandis.
Section 31 - The Board may establish and register a provisional description characterising the variety.
- The Board may add to the description referred to in Subsection 1 and shall register such addition:
- a.
- at the request of the applicant;
- b.
- ex officio, if such is necessary in connection with the description of another variety, in which case the party that has an interest in the approval of a variety or the holder of the breeder’s right shall be heard, or for other reasons, but then only in agreement with the persons referred to above.
Section 32
Subject to the provisions of Section 3:41 of the General Administrative Law Act, decisions of the Board pursuant to the present chapter shall be announced to the interested party referred to in Section 28, to the party that has an interest in the approval of a variety pursuant to Sections 30 and 31, and to the holder of the breeder’s right referred to in Sections 30 and 31.
Section 33
The applications and requests referred to in this chapter and in Chapters 5 and 7, and the withdrawal or refusal of such applications and requests, shall be recorded in the Register of Varieties, with an announcement being made in the Government Gazette.
Section 34
Registrations and entries within the meaning of the present chapter and Chapters 5 and 7 pursuant to decisions that are the subject of an appeal shall be effectuated as soon as a ruling has been given on any appeal or the period for lodging an appeal has expired without such appeal being lodged, or as soon as the appeal has been withdrawn by means of written notification to that effect submitted to the Board.
CHAPTER 5.
APPROVAL OF VARIETIES AND STANDS
Section 35
1. Rules may be set by or pursuant to a general administrative order regarding the approval of varieties and stands; the said rules may differ from one plant to another. The said rules may in any case concern: - a.
- the requirement that it be established, on the basis of a technical investigation, whether a variety is distinct, uniform, and stable;
- b.
- the requirement that it be established, on the basis of a technical investigation, whether a variety has sufficient cultivation and utility value;
- c.
- the requirement that it be established, on the basis of a technical investigation, whether a stand for silvicultural purposes complies with conditions to be set by or pursuant to the general administrative order referred to in the opening words of this section regarding the production of categories of propagating material as designated by the said order;
- d.
- the features covered by the technical investigation within the meaning of (a), (b), and
(c) and the requirements for that investigation; and
e. further requirements for approval and the conditions under which, and cases in which, approval can be amended or withdrawn by the Board. - A variety shall be considered distinct if it can be clearly distinguished from any other variety whose existence is a matter of common knowledge at the point when the application is submitted. A variety shall be considered to be a matter of common knowledge if, at the point when application is made for approval of a variety that is to be assessed, it is included either in a common list of varieties adopted on the instructions of the Commission of the European Communities or has been approved, or is the subject of an application for approval, in a Member State of the European Union.
- A variety shall be considered uniform if, disregarding the variation that may be expected from the particular features of its propagation, it is sufficiently uniform as regards its significant characteristics.
4.A variety shall be considered stable if its significant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each cycle. - A variety shall be deemed to have sufficient cultivation and utility value if, when compared to other varieties approved in the Netherlands, the sum total of its qualities, at least as regards production in a particular area, constitutes a clear improvement for either the propagation or the valorisation of the harvest or of the products derived from it. A lower level of certain characteristics may be compensated for by other favourable characteristics.
- The technical investigation referred to in (a), (b), and (c) of Subsection 1 shall be carried out at the responsibility of the Board. By or pursuant to the order referred to in Subsection 1, rules may be set for cases in which the conditions under which the Board, for the purposes of the technical investigation of a variety, may make use of existing investigation reports regarding that variety or of the results of investigations carried out by the applicant itself and practical experience gained during cultivation.
Section 36 - The Board shall decide, on application, regarding the approval of a variety or stand.
- An application for approval of a variety shall comprise the following information:
- a.
- a proposal for the denomination of the variety within the meaning of Section 29;
- b.
- a description characterising the variety; and
- c.
- a precise account of the characteristics by which the variety is distinguished from other varieties of the same plant.
- If the Board so requires, a sufficient quantity of material of the variety to which the application relates shall be provided to the Board for the purposes of the technical investigation within the meaning of Section 35(1)(a and b), in accordance with requirements to be set by the Board.
- The application for approval of a stand shall contain a record of the owner or manager of the stand, the location of the stand, and a description characterising the stand.
Section 37 - An approved variety or stand shall be registered in the Register of Varieties, with a record being made, simultaneously with the registration of the variety or stand, of the approval and of the maintainer/maintainers or the owner or manager of the stand designated pursuant to Section 39(3).
- The said approval shall be dated and shall take effect on the day immediately following that on which the registration and entry in the Register of Varieties within the meaning of Subsection 1 took place.
- The Board shall ensure that an approved variety that is not clearly distinguishable from:
- a.
- a variety previously approved in the Netherlands or another Member State; or
- b.
- another variety that has been assessed in respect of its distinctiveness, uniformity, and stability according to rules agreeing with those
set pursuant to Section 35 but without being a variety that is a matter of common knowledge within the meaning of Section 35(2), shall bear the denomination of the variety concerned.
4. Subsection 3 shall not apply if the denomination referred to in that subsection is misleading or may be confusing as regards the variety or if other facts prevent its use, or if a third-party right prevents the free use of that denomination for the variety concerned.
Section 38