Council Directive 2002/53/EC of 13 June 2002[1] on the common catalogue of varieties of agricultural plant species and Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed lay down the legislative basis for the common catalogue of varieties of agricultural plant species (consolidated version of 12 June 2008) and the common catalogue of varieties of vegetable species (consolidated version of 18 June 2008). These catalogues are established on the basis of information received from the Member States and published in the Official Journal. They list those varieties whose seed is subject to no marketing restrictions within the Community as regards variety. Varieties must meet standards, notably pertaining to distinctness, uniformity, stability and, in the case of agriculture, value for cultivation and use in order to be listed. In the case of varieties of agricultural plant species, their satisfactory value for cultivation and use is based on yields, resistance to harmful organisms, behaviour with respect to factors in the physical environment and quality characteristics.

The definition of a plant variety, which fits to registration and Protection Certificate, is specified in the UPOV Convention (Article 1(vi)) as:
"a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder's right are fully met, can be
 - defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,
 - distinguished from any other plant grouping by the expression of at least one of the said characteristics and
 - considered as a unit with regard to its suitability for being propagated unchanged;"

This full definition clarifies that a variety must be recognizable by its characteristics, recognizably different from any other variety, and remains unchanged through the process of propagation. If a plant variety grouping does not meet these criteria, it is not considered to be a variety within the UPOV system. However, the definition also makes clear that this is irrespective of whether the conditions for the grant of a breeder's right are fully met and this is not, as such, a condition for determining if a variety is eligible for protection.

Chapter I: Subject matter and definitions

Article 1

Subject matter

1.         As regards the agricultural species covered by Directives 66/401/EEC, 66/402/EEC, 2002/54/EC, 2002/56/EC and 2002/57/EC, this Directive lays down certain derogations, in relation to the conservation in situ and the sustainable use of plant genetic resources through growing and marketing:

(a)       for acceptance for inclusion in the national catalogues of varieties of agricultural plant species, as provided for in Directive 2002/53/EC, of landraces and varieties which are naturally adapted to the local and regional conditions and threatened by genetic erosion, and

(b)       for the marketing of seeds and seed potatoes of such landraces and varieties.

2.         Unless otherwise provided in this Directive, Directives 66/401/EEC, 66/402/EEC, 2002/53/EC, 2002/54/EC, 2002/56/EC and 2002/57/EC shall apply.

Article 2

Definitions

For the purposes of this Directive the following definitions shall apply:

(a)        “conservation in-situ” means the conservation of genetic material in its natural surroundings and, in the case of cultivated plant species, in the farmed environment where they have developed their distinctive properties;

(b)       “genetic erosion” means loss of genetic diversity between and within populations or varieties of the same species over time, or reduction of the genetic basis of a species due to human intervention or environmental change;

(c)        “landrace” means a set of populations or clones of a plant species which are naturally adapted to the environmental conditions of their region;

(d)       “seed” means seed and seed potatoes, unless seed potatoes are expressly excluded.

Chapter II: Acceptance of Conservation Varieties

Article 3

Conservation variety

Member States may accept the landraces and varieties referred to in Article 1(1)(a) subject to the requirements provided for in Articles 4 and 5. Such a landrace or variety shall be referred to in the common catalogue of varieties of agricultural plant species as a “conservation variety”.

Article 4

Derogations concerning substantive requirements

1.         In order to be accepted as a conservation variety, the landrace or variety referred to in Article 1(1)(a) shall present an interest for the conservation of plant genetic resources.

2.         By way of derogation from Article 1(2) of Directive 2003/90/EC, Member States may adopt their own provisions as regards distinctness, stability and uniformity. In such cases they shall ensure that for distinctness and stability at least the characteristics shall apply which are referred to in:

(a)        the technical questionnaires associated with the Guidelines of the Community Plant Variety Office (CPVO) listed in Annex I to Directive 2003/90/EC, which applies to that species, or

(b)       the technical questionnaires of the Guidelines of the International Union for the protection of new varieties of plants (UPOV) listed in Annex II to Directive 2003/90/EC, which applies to that species.

For the assessment of uniformity, Directive 2003/90/EC shall apply. However, if the uniformity level is established on the basis of off-types, a population standard of 10 % and an acceptance probability of at least 90 % shall be applied.