Agritech Thymes: UK-EU SPS agreement – what does it mean for plant breeders?

Since Brexit, the UK agrifood sector has faced difficulties, largely due to the requirement for additional certifications and controls, such as phytosanitary certificates and border checks. This has had a significant financial impact on UK businesses that import or export plants between the UK and the EU. In view of this, the UK and the EU are working on a Sanitary and Phytosanitary (SPS) agreement to facilitate the movement of plants and animals. The agreement will cover, among other topics, sanitary and safety rules relating to the production of agrifood products.

Several aspects of the agreement are relevant for plant breeders, including a possible unitary route to plant variety protection, alignment on genetically modified organisms, and the legal questions the agreement raises.

Heading towards unitary plant variety protection?

A recent publication by the UK government confirmed that an alignment of UK Plant Breeders’ Rights (PBRs) with EU Community Plant Variety Rights (CPVRs) is being considered, which would allow protection of plant varieties in the UK and the EU through a single right. This would considerably ease things for plant breeders, who since Brexit have had to obtain separate rights to protect new plant varieties in the EU and the UK.

While practical, the agreement could have wider impacts, as highlighted in a recent Horticultural Trades Association (HTA) stakeholder briefing note. As the HTA notes, the CPVR Regulation (EU Council Regulation (EC) No 2100/94) is included in the agreement and will therefore likely apply, either by extending the UK PVR register to include all EU rights, or by the UK adopting the EU regulation through new legislation. Either way, EU rights would provide protection in the UK, but it is unclear whether protection would extend to all CPVRs or only new grants, and what will happen to UK PBRs. This may also affect DUS testing, prompting questions on whether UK DUS reports will be recognised again in the EU, and whether UK testing capacity will be preserved.

Other implications for plant breeders

Beyond these practical questions, the HTA briefing also flags broader concerns about legal jurisdiction and UK autonomy. For instance, the recent Nador Cott v Asda case highlighted differences between the interpretation of essentially derived varieties under UK and EU laws. It will therefore matter which law applies for plant varieties in the UK once the agreement comes into force, and this remains unclear. On the autonomy point, the UK is not an EU member and so would have no vote on future changes to the CPVR Regulation, which is currently being reviewed. This means that the rules the UK aligns with now could change after the agreement takes effect without UK input.

The UK government has also indicated that it will align with EU rules on genetically modified organisms (GMOs), but that precision breeding, where the UK and the EU have taken different approaches, is subject to ongoing negotiations. This raises the question of whether the EU New Genomic Techniques Regulation, and its patent transparency provisions, will be included in the agreement.

The agreement will likely be welcomed by plant breeders and the wider agrifood sector, but many questions remain unanswered and will probably stay so until the agreement is made public. Hopefully there won’t be too long to wait as the UK government is aiming for the agreement to enter into force mid-2027.

This article was prepared by Trainee Patent Attorney, Delphine Laute-Caly.