Common Provisions on the Protection of the
Rights of Breeders of New Plant Varieties*
SUBJECT MATTER AND SCOPE
Article 1.- The purpose of this Decision is:
(a) to recognize and ensure the protection of the rights of breeders
of new plant varieties by the grant of breeders’ certificates;
(b) to promote research activities in the Andean area;
(c) to promote technology transfer activities within and outside the
Article 2.- The scope of this Decision shall encompass all
botanical genera and species insofar as the growing, possession or use
thereof are not prohibited for reasons of human, animal or plant health.
Article 3.- For the purposes of this Decision, the following
definitions are adopted:
COMPETENT NATIONAL AUTHORITY: Body appointed by each
Member Country to apply the provisions on plant variety protection.
LIVE SAMPLE: A sample of the variety supplied by the
applicant for a breeder’s certificate, which sample shall be used for
the testing of novelty, distinctness, uniformity and stability.
VARIETY: Set of cultivated botanical individuals that are
distinguished by specific morphological, physiological, cytological and
chemical characteristics and can be perpetuated by reproduction,
multiplication or propagation.
ESSENTIALLY DERIVED VARIETY: A variety shall be deemed to
be essentially derived from an initial variety when it originated
there from or from a variety itself essentially derived from the initial
variety and retains the expression of the essential characteristics that
result from the genotype or combination of genotypes of the original
variety, and which although distinguishable from the initial variety,
nevertheless conforms to it in the expression of the essential
characteristics that result from the genotype or combination of genotypes
of the initial variety, except with respect to differences resulting from
the derivation process.
MATERIAL: Reproductive or vegetative multiplication
material in any form; harvested material, including whole plants and parts
of plants; any product made directly from harvested material.
RECOGNITION OF BREEDERS’ RIGHTS
Article 4.- The Member Countries shall grant breeders’
certificates to persons who have created plant varieties, insofar as the
varieties are new, uniform, distinct and stable, and if they have been
given a denomination that constitutes their generic designation.
For the purposes of this Decision, "created" shall be
understood to denote the production of a new variety by the application of
scientific skills to the genetic improvement of plants.
Article 5.- Without prejudice to the provisions of Article 37, the
Government of each Member Country shall appoint its competent national
authority and shall establish the functions thereof, and shall also
establish the national procedure for the implementation of this Decision.
Article 6.- There shall be established in each Member Country a
National Register of Protected Plant Varieties, in which all varieties
conforming to the conditions laid down in this Decision shall be
registered. The Board shall be responsible for keeping a subregional
register of protected plant varieties.
Article 7.- To be entered in the Register referred to in the
foregoing Article, varieties shall fulfill the conditions of novelty,
distinctness, uniformity and stability and in addition shall have an
appropriate generic denomination.
Article 8.- A variety shall be deemed to be new if reproductive or
multiplication material or harvested material thereof has not been
lawfully sold or disposed of to others in another manner by or with the
consent of the breeder or his successor in title for purposes of
commercial exploitation of the variety.
Novelty shall be lost where:
(a) exploitation has begun more than one year prior to the filing
date of the application for the grant of a breeder’s certificate or
the date of any priority claimed, if sale or disposal to others has
taken place within the territory of any Member Country;
(b) exploitation has begun more than four years or, in the case of
trees and grapevines, more than six years prior to the filing date of
the application for the grant of a breeder’s certificate or the date
of any priority claimed, if the sale or disposal to others has taken
place in a territory other than that of any Member Country.
Article 9.- Novelty shall not be lost through sale or disposal of
the variety to others, inter alia, when those acts:
(a) are the result of an abuse to the detriment of the breeder or his
successor in title;
(b) form part of an agreement to transfer the rights in the variety,
provided that the variety has not been physically disposed of to a third
(c) form part of an agreement under which a third party has, on
behalf of the breeder, increased supplies of reproductive or
(d) form part of an agreement under which a third party has carried
out field or laboratory tests or small-scale processing tests with a
view to the evaluation of the variety;
(e) involve harvested material that has been obtained as a by-product
or surplus product of the variety or from the activities mentioned in
this Article under (c) and (d);
(f) are performed in any unlawful manner.
Article 10.- A variety shall be deemed to be distinct if it is
clearly distinguishable from any other variety whose existence is a matter
of common knowledge on the filing date of the application or the date of
any priority claimed.
The filing in any country of an application for the grant of a breeder’s
certificate or for the entry of the variety in an official register of
cultivars shall make the said variety a matter of common knowledge as from
that date, insofar as the act concerned leads to the grant of the
certificate or the entry of the variety, as the case may be.
Article 11.- A variety shall be deemed to be uniform if it is
sufficiently uniform in its essential characteristics, due account being
taken of the variations that may be expected from the manner of its
reproduction, multiplication or propagation.
Article 12.- A variety shall be deemed to be stable if its
essential characteristics remain unchanged from generation to generation
and at the end of each particular cycle of reproduction, multiplication or
Article 13.- Each Member Country shall ensure that no rights in the
designation registered as the denomination of the variety hamper the free
use thereof, even after the breeder’s certificate has expired.
The designation adopted may not be registered as a mark and shall be
sufficiently distinctive in relation to other denominations registered
Where one variety is the subject of applications for the grant of
breeders’ certificates in two or more Member Countries, the same
denomination shall be used in all cases.
Article 14.- The owners of breeders’ certificates may be natural
persons or legal entities. The certificate shall belong to the breeder of
the variety or the party to whom it has been lawfully transferred.
The breeder may claim his rights before the competent national
authority if the certificate has been granted to a person not entitled
Article 15.- The State employer, whatever its form and nature, may
transfer part of the profits from plant breeding to its breeder employees
in order to stimulate research activity.
Article 16.- The application for the grant of a breeder’s
certificate for a new variety shall comply with the conditions set forth
in Article 7 and shall be accompanied by a detailed description of the
relevant breeding process. In addition, should the competent national
authority consider this necessary, the application shall likewise be
accompanied by a live sample of the variety or the document evidencing the
deposit thereof with the competent national authority of another Member
The Member Countries shall regulate the manner in which samples are to
be deposited, including, among other matters, the necessity and
desirability of effecting such a deposit, the duration thereof and the
replacement or supply of samples.
Article 17.- The breeder shall enjoy provisional protection during
the period between the filing of the application and the grant of the
No action for damages may be brought until the breeder’s certificate
has been granted, but such an action may cover damages caused by the
defendant as from the publication of the application.
Article 18.- The owner of an application for the grant of a breeder’s
certificate filed in a country that accords reciprocal treatment to the
Member Country in which registration of the variety is being sought shall
enjoy a right of priority for a period of 12 months for the purpose of
seeking protection for the same variety in any of the other Member
Countries. This period shall be calculated from the filing date of the
In order to benefit from the right of priority, the breeder shall, in
the subsequent application, claim the priority of the first application.
The competent national authority of the Member Country in which the
subsequent application has been filed may require the applicant to supply,
within a period of not less than three months from the date of the said
filing, a copy of the documents which constitute the first application,
which copy shall be certified true by the authority with which that
application was filed, and samples or other evidence that the variety
which is the subject matter of both applications is the same.
Article 19.- The competent national authority of each Member
Country shall issue a technical report on novelty, distinctness,
uniformity and stability.
Article 20.- On the issue of a favorable technical report and after
compliance with the prescribed procedure, the competent national authority
shall grant the breeder’s certificate.
The grant of the certificate shall be notified to the Board of the
Cartagena Agreement, which in turn shall bring it to the notice of the
other Member Countries for the purposes of the recognition thereof.
Article 21.- The term of the breeder’s certificate shall be from
20 to 25 years in the case of vines, forest trees and fruit trees,
including their rootstocks, and from 15 to 20 years for other
species, calculated in both cases from the date of grant, as determined by
the competent national authority.
OBLIGATIONS AND RIGHTS OF THE BREEDER
Article 22.- The owner of a variety entered in the Register of
Protected Plant Varieties shall be under the obligation to maintain it and
reconstitute it as necessary throughout the term of the breeder’s
Article 23.- A breeder’s certificate shall give the owner thereof
the right to bring administrative or judicial actions under his national
legislation with a view to preventing or restraining any acts that
constitute infringement or violation of his right, and securing the
appropriate forms of compensation or indemnification.
Article 24.- The grant of a breeder’s certificate shall confer on
the owner thereof the right to prevent third parties from engaging without
his consent in the following acts in respect of reproductive, propagating
or multiplication material of the protected variety:
(a) production, reproduction, multiplication or propagation;
(b) preparation for the purposes of reproduction, multiplication or
(c) offering for sale;
(d) sale or any other act that entails placing reproductive,
propagating or multiplication material on the market for commercial
(g) possession for any of the purposes mentioned in the foregoing
(h) commercial use of ornamental plants or parts of plants as
multiplication material for the production of ornamental and fruit
plants, or parts thereof or cut flowers;
(i) the performance of the acts mentioned in the foregoing
subparagraphs in respect of harvested material, including entire plants
and parts of plants, obtained through the unauthorized use of
reproductive or multiplication material of the protected variety, unless
the owner has had reasonable opportunity to exercise his exclusive right
in relation to the said reproductive or multiplication material.
The breeder’s certificate shall likewise entitle the owner thereof to
exercise the rights specified in the foregoing subparagraphs in respect of
varieties that are not clearly distinguishable from the protected variety,
within the meaning of Article 10 of this Decision, and in respect of
varieties whose production calls for repeated use of the protected
The competent national authority may confer on the owner the right to
prevent third parties from engaging, without his consent, in the acts
specified in the foregoing subparagraphs in respect of varieties
essentially derived from the protected variety, except where the latter
variety is itself an essentially derived variety.
Article 25.- The breeder’s certificate shall not confer on the
owner thereof the right to prevent third parties from using the protected
variety where such use is made:
(a) in a private circle, for non-commercial purposes;
(b) for experimental purposes;
(c) for the breeding and exploitation of a new variety, except in the
case of a variety essentially derived from a protected variety. The said
new variety may be registered in the name of the breeder thereof.
Article 26.- Anyone who stores and sows for his own use, or sells
as a raw material or food, the product of his cultivation of the protected
variety shall not be thereby infringing the breeder’s right. This
Article shall not apply to the commercial use of multiplication,
reproductive or propagating material, including whole plants and parts of
plants of fruit, ornamental and forest species.
Article 27.- Breeders’ rights may not be invoked against the acts
mentioned in Article 24 of this Decision where the material of the
protected variety has been sold or otherwise marketed by the owner of the
said right, or with his consent, except where those acts involve:
(a) further reproduction, multiplication or propagation of the
protected variety, subject to the limitation specified in Article 30 of
(b) exportation of the material of the protected variety, such as
would permit reproduction thereof, to a country that does not grant
protection to the varieties of the plant species to which the exported
variety belongs, except where the said material is for human, animal or
industrial consumption purposes.
Article 28.- Where necessary, the Member Countries may adopt
measures for the regulation or control, on their territory, of the
production or marketing, importation or exportation of reproductive or
multiplication material of a variety, provided that such measures do not
imply disregard for the breeders’ rights recognized by this Decision, or
hamper the exercise thereof.
Article 29.- The owner of a breeder’s certificate may grant
licenses for the exploitation of the variety.
Article 30.- With a view to ensuring adequate exploitation of the
protected variety, in exceptional circumstances affecting national
security or the public interest, national governments may declare the said
variety freely available subject to equitable compensation of the breeder.
The competent national authority shall decide on the amount of
compensation, after having heard the parties and taken expert advice, on
the basis of the scale of exploitation of the variety so licensed.
Article 31.- During the period of validity of the declaration of
free availability, the competent national authority shall allow
exploitation of the variety by interested persons who offer sufficient
technical guarantees and apply to it to that end.
Article 32.- The declaration of free availability shall remain in
force for as long as the circumstances that brought it about continue to
obtain and up to a maximum of two years, which period may be renewed once
for the same amount of time, provided that the circumstances under which
the declaration was made have not disappeared with the lapse of the first
NULLITY AND CANCELLATION
Article 33.- The competent national authority shall, either ex
officio or at the request of a party, declare the breeder’s certificate
null and void when it is established that:
(a) the variety did not fulfill the requirements of novelty and
distinctness when the certificate was granted;
(b) the variety did not fulfill the conditions laid down in Articles
11 and 12 of this Decision when the certificate was granted;
(c) the certificate has been granted to a person who has no right to
Article 34.- In order to keep the breeder’s certificate in force,
the appropriate fees shall be paid in accordance with the provisions laid
down in the domestic legislation of the Member Countries.
The owner shall be allowed a period of grace of six months following
the expiration of the prescribed period within which to effect payment of
the fee due, together with the appropriate surcharge. The breeder’s
certificate shall remain fully valid throughout the period of grace.
Article 35.- The competent national authority shall declare the
certificate canceled in the following cases:
(a) where it is established that the protected variety has ceased to
meet the conditions of uniformity and stability;
(b) where the breeder does not provide the information, documents or
material necessary for testing the maintenance or reconstitution of the
(c) where the breeder does not, after the denomination of the variety
has been rejected, propose another suitable denomination within the
(d) where payment of the fee has not taken place by the expiration of
the period of grace.
Article 36.- Any nullity, lapse, cancellation, cessation or loss of
breeders’ rights shall be notified to the Board, by the competent
national authority, within 24 hours of the making of the
corresponding pronouncement, which shall in addition be duly published in
the Member Country, whereupon the variety shall become public property.
Article 37.- The Subregional Committee for the Protection of Plant
Varieties, composed of two representatives of each of the Member
Countries, is hereby created. The Board shall provide the Technical
Secretariat of the Committee.
Article 38.- The Committee referred to in the foregoing Article
shall have the following functions:
(a) to consider the compilation of an up-to-date inventory of the
present biodiversity of the Andean subregion and, in particular, of the
plant varieties susceptible of registration;
(b) to draw up guidelines for the standardization of procedures,
examinations, laboratory tests and the deposit or growing of such
samples as may be necessary for the registration of the variety;
(c) to devise technical criteria for distinctness in relation to the
state of the art, with a view to determining the minimum number of
characteristics that have to vary for one variety to be considered
different from another;
(d) to analyze matters relating to the scope of protection of
essentially derived varieties, and to propose common provisions thereon.
Article 39.- The recommendations of the Committee shall be
submitted through the Board for consideration by the Commission.
ONE.- A variety that is not new on the date on which a
Member Country’s Register is opened for the filing of applications may
be registered, notwithstanding the provisions of Article 4 of this
Decision, if the following conditions are met:
(a) the application is filed within the year following the opening
date of the Register for the genus or species to which the variety
(b) the variety has been entered in a register of cultivars in any of
the Member Countries, or in a register of protected varieties in any
country having special legislation on the protection of plant varieties
which grants reciprocal treatment to the Member Country in which the
application is filed.
The term of the breeder’s certificate granted under this provision
shall be proportional to the period already elapsed since the date of
entry or registration in the country referred to in subparagraph (b)
above. Where the variety has been entered in two or more countries, the
relevant entry or registration shall be the one with the earliest date.
TWO.- The competent national authority in each Member
Country shall implement this Decision within 90 days following the
date of the publication thereof in the Official Gazette of the Cartagena
THREE.- The Member Countries shall, before December 31,
1994, approve common provisions governing access to biogenetic resources
and guaranteeing the biosecurity of the subregion, pursuant to the
provisions of the Convention on Biodiversity adopted in Rio de Janeiro on
June 5, 1992.