Since June 12, 2020, France has authorized the marketing of seed varieties belonging to the public domain (free of rights) when these are intended for “non-professional users, not intending to do a commercial exploitation of the variety”. Therefore, these operations are expressly out of the scope of the horizontal European legislation ont the marketing of seeds.
The new French system introduces concrete changes.
The French exemption system is included in Article 10 of the Law n°2020-699 enacted in June 10, 2020, relating to the transparency of information on agricultural and food products, which modifies the last paragraph of article L. 661-8 of the rural and maritime fishing code as follows:
"The assignment, supply or transfer, free of charge or for consideration, of seeds or plant reproductive material of cultivated species’ varieties belonging to the public domain, to non-professional users not aiming at commercial exploitation of the variety, is not subject to the provisions of this article, with the exception of health rules relating to selection and production."
The "provisions of this article", that is to say the rules set out in Article L. 661-8 of the rural and maritime fisheries code, provide the following:
"[...] This decree in the Council of State fixes:
1 ° The conditions under which these materials are selected, produced, multiplied and, where applicable, certified, taking into account the different modes of reproduction;
2 ° The conditions for registration in the official catalog of the different categories of varieties whose materials can be marketed;
3 ° The rules making it possible to ensure the traceability of products from the producer to the consumer. "
In other words, the new drafting of Article L.661-8 of the French rural code allows all varieties belonging to the public domain and intended for non-professional users to derogate from the common rules on the marketing of seeds (registration in the official catalogue, certification of seed lots, rules on labelling and packaging of seed lots).
The sanitary rules provided for by Regulation 2016/2031 continue in principle to apply, except for the numerous operators supplying seeds directly to the end users.
Indeed, Regulation 2016/2031 requires operators to have a phytosanitary certificate for the introduction of seeds into the Union territory and a phytosanitary passport for the circulation of seeds in the Union territory.
However, professionals supplying seeds directly to non-professional users don't need to have a phytosanitary passport for these seeds
Indeed, Article 81 of Regulation 2016/2031 provides:
“No phytosanitary passport is required for the movement of plants, plant products or other objects supplied directly to an end user, including non-professional gardeners.
This exception does not apply to:
(a) End users who receive plants, plant products or other objects through distance selling; or
(b) End users of plants, plant products or other objects for which a plant passport for protected areas is required under Article 80. "
Thus, in most cases where seeds are supplied directly to non-professional users and where it is not a distance selling, no plant passport is required.
Operators must always comply with general labeling requirements, in accordance with Article L. 111-1 of the French Consumer Code.
Indeed, Article L. 111-1 1 ° of the Consumer Code imposes on any professional seller of goods or services a pre-contractual obligation to provide information:
"Before the consumer is bound by a contract for the sale of goods or the provision of services, the professional communicates to the consumer, in a legible and understandable manner, the following information:
1 ° Essential characteristics of the good or service, taking into account the communication medium used and the good or service concerned.”
Essential characteristics of seeds are evidently the species, the variety, the number of seeds or their total weight, the approximate expiration date, or the possible duration of use.
Thus, any professional seller of seeds to amateur gardeners, whether an association or a commercial enterprise, must always provide amateur gardeners with information on the essential characteristics of the seeds on sale, namely the species, the variety, the number of seeds or their weight and the approximate expiry date.
Ultimately, this exemption system, which only concerns sale to non-professional users, is not without safeguards, both in terms of health and consumer information.