Introduction   

The Community Plant Variety Office (CPVO) recently revised its public access to documents policy to align with the European Union (EU)’s evolving transparency standards. Effective since 15 January 2025, the new policy seeks to ensure broad access to all documents that the CPVO holds, while protecting private parties’ commercial interests. In particular, a system of prior confidentiality requests has been put in place for applicants of Community plant variety rights (CPVR).

EU rules on access to documents

The right to gain access to documents held by the EU’s institutions and other bodies is laid down in Article 15(3) of the Treaty on the Functioning of the European Union and Article 42 of the EU Charter of Fundamental Rights. To flesh-out this right, Regulation (EC) No 1049/2001 was enacted, outlining the rules and procedures for processing access to documents requests, including the situations in which documents may not be disclosed.

As the EU agency responsible for taking decisions on CPVR applications, the CPVO is also bound by access to documents rules: Article 33(a) of Regulation (EC) No 2100/1994 on CPVR (Basic Regulation) stipulates that Regulation (EC) No 1049/2001 equally applies to documents held by the CPVO. In practice, the CPVO handles access to documents requests in line with the 2019 ‘practical arrangements’ adopted by its Administrative Council.

Novelties in the CPVO’s access to documents policy

The current CPVO practical arrangements require that CPVR applicants are consulted when there is a request to access the documents that they have submitted, but there is no system to preemptively request confidentiality for these submissions. The updated access to documents policy aims to address this issue. A confidentiality request can now be made either when submitting a document or later, as long as it has not been disclosed following an access to documents request.

In its updated policy, the CPVO distinguishes between invoking confidentiality in the ‘technical questionnaire’ and invoking it for other documents:

  • The CPVO now allows CPVR applicants to request confidentiality for documents detailing the breeding scheme and genetic origin of plant varieties (i.e. the technical questionnaire). For varieties covered by Article 88(3) of the Basic Regulation (i.e. hybrid varieties that require the repeated use of parental lines), no justification for confidential treatment is needed. For other varieties, CPVR applicants must provide reasons showing how disclosure could harm their commercial interests, such as their intellectual property. When access is requested, the CPVO will decide on disclosure in light of Regulation (EC) No 1049/2001, considering the justification provided. If further information is needed, then the CPVO may still consult the CPVR applicant.
  • CPVR applicants are also advised to submit documents in a way that prevents revealing confidential information, while ensuring all legally required details are included. In its policy, the CPVO has given the example of parts of contracts or documents related to the transfer of rights or novelty assessments, which may be redacted before being submitted to the CPVO. Applicants can make a reasoned request for confidentiality for specific documents, such as license agreements, contracts regulating the sale or disposal of plant material, etc. If a public access request is made, then the CPVO will process it in the same manner as explained above.

In summary, CPVR applicants should note that, unless it contains information related to hybrid varieties, simply requesting confidentiality is not enough to exclude a document from public access. They must provide clear reasons showing how disclosure would harm their (commercial) interests. Submitting a justification also does not guarantee confidentiality. The CPVO will only withhold a document if it determines that disclosure would effectively harm a legally protected interest and no overriding public interest applies.

ALTIUS’s IP & Life Sciences team is ready to assist natural and legal persons in obtaining documents from EU agencies like the CPVO or protecting the confidentiality of their commercially sensitive documents when third-party access is requested. If you would like further information regarding this topic, then please contact Philippe de Jong ([email protected]) or Bart Junior Bollen ([email protected]).