On 1 July 2015, the new plant variety protection system entered into force in Belgium. The former system was based on the law of May 20, 1975 on the protection of plant varieties, but was repealed and replaced by the provisions in Title 3 of Book XI of the Code of Economic Law and its implementing Royal Decree.
- You can apply for protection through plant breeders' rights for any variety of all botanical genera and species, without restriction.
- You will no longer receive a notice by post of the due date, with the request to pay the annual fee, nor a payment reminder. So pay the annual fee of your own accord and within the required term, otherwise your plant breeders’ rights will lapse by operation of law!
- If you are deprived of your rights due to non-payment of your annual fee, you can undertake a procedure to restore your plant breeders' rights under certain conditions.
- The duration of protection of plant varieties is
- 30 years for trees, vines and potatoes, and
- 25 years for other plant species.
In practice, this new legislation applies to all rights granted before (with preservation of rights acquired) and after 1 July 2015. Applications for plant breeders' rights submitted before this date are processed in accordance with the provisions of the law of 20 May 1975. Applications submitted after this date are processed in accordance with the new legislation.
The other modifications introduced by the new legislation apply primarily to the following aspects:
- adaptation of the notion of «novelty»;
- extension of plant breeders' rights with regard to acts, in particular simple production, without commercialisation;
- extension of plant breeders' rights to
- varieties essentially derived from the protected variety,
- varieties that are not clearly distinguishable from the protected variety and
- varieties whose production requires the repeated use of the protected variety.
- introduction of the derogation from plant breeders' rights, in the context of the use of farm-saved seeds («farmer’s privilege») and the «breeder's exemption»;
- clarification of the exhaustion of plant breeders' rights;
- clarification of the provisions on the renunciation of plant breeders' rights, the nullity of the right and the revocation;
- clarification of the provisions on the transfer of plant breeders' rights;
- provisions on the clarified contractual licenses;
- provisions on compulsory licenses;
- introduction of provisions on restoration in rights.
Belgium has also modernised its international commitments in the field of plant breeders' rights. Our country is a member of the International Union for the Protection of New Varieties of Plants (UPOV). UPOV's mission is to introduce and promote a system of protection for plant varieties in order to encourage the development of varieties, in the interests of all. In a law of 23 March 2019, Belgium assented to the latest version (Act of 19 March 1991) of the International Convention for the Protection of New Varieties of Plants (UPOV 91 Convention) and became bound by the UPOV 91 Convention on 2 June 2019.
The Contracting States of the UPOV 91 Convention undertake to protect plant varieties in their territory by introducing a sui generis intellectual property right (which was already the case in Belgium). The Convention strengthens and clarifies certain areas of the protection of plant breeders' rights, such as the minimum protection conditions, the range of varieties that can be protected and the scope of plant breeders' rights.
The ratification of the UPOV 91 Convention does not require the modification of Belgian legislation on plant breeders' rights. The provisions of the Convention have already been implemented in Belgian law by the Code of Economic Law, Book XI, Title 3, and entered into force on July 1, 2015.