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A Victory for PBR in Colombia

The Council of State of Colombia has officially revoked the preliminary injunction in which the ICA was suspended from DUS report take over, giving ICA the green light to proceed with taking over DUS reports from abroad in the frame of the PBR application process.

In 2016, a lawsuit filed by a grower questioned the authority of the Colombian PBR Office (ICA) to take over DUS reports carried out outside of Colombia and, more precisely, its competence to establish the mechanisms for such take-over procedures. Along with the lawsuit, the plaintiff requested a preliminary injunction demanding the provisional suspension of this ICA’s faculty which was partially upheld by the Council. Thanks to an appeal by the Ministry of Agriculture and ICA, the suspension was not put into effect.

Seeking to actively protect its members’ rights, CIOPORA, with the support of 10 members, took part in the process as a third-party interest with the legal assistance of OlarteMoure, a long-term member of CIOPORA. In May 2017, CIOPORA filed an amicus brief in the main procedure and in the appeal procedure.

Today, we have received information that the Court ruled on the Appeal, revoking the preliminary injunction and lifting the suspension on the challenged Article. As a consequence, neither the competence of ICA to take-over DUS reports carried out abroad nor will its authority to establish the necessary mechanisms be suspended throughout the duration of the principal procedure.

The Court affirmed that the provision of Decree 533, which establishes the competence of ICA to take over DUS reports, does not violate the provision of the Andean Pact Decision 345 which grants the same faculty to the Andean Subregional Committee for the Protection of Plant Varieties.

The main arguments stated by the Court, which reflect the ones presented by CIOPORA, are the following:

  1. The provisions of the Andean Pact do not imply that the member states have no competence to regulate this issue; in fact, member states may complement said regulations through internal norms.

  2. The national authority is competent to establish the rules and mechanisms for take-over procedures, which in the case of Colombia is ICA.

  3. The mentioned Committee no longer exists since it was eliminated by a restructuring process within the Andean Community in 2013. Prior to its elimination, the Committee did not issue guidelines regarding take-over procedures.

  4. Regardless of the above points, this Committee was a consultative organ and its decision could only have been deemed as mere recommendations for the member states.

From this point onward, the main proceeding will continue its course, which is currently at the Initial Hearing state. Considering the arguments asserted by the Court, a final decision is forthcoming and, hopefully, will result in a benefit for Breeders in Colombia.

CIOPORA would like to thank the members which have collaborated on this intervention to help strengthen the protection of PBR in Colombia. A special appreciation goes to OlarteMoure for its assistance during the appeal proceeding.

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