Since Brexit, the UK agri-food sector has faced considerable difficulties, primarily because of additional certification and controls, such as phytosanitary certificates and border checks. These requirements have had a significant financial impact on UK businesses importing and exporting plants between the UK and the EU. In response, the UK and the EU are working on an Agreement on Sanitary and Phytosanitary Measures (SPS) to facilitate the movement of plants and animals. The agreement will cover, among other matters, health and safety rules relating to agri-food production.

Several aspects of the agreement are particularly relevant to plant breeders, including the potential move towards a single right for plant variety protection, convergence in the regulation of genetically modified organisms, and legal issues arising from the agreement itself.

Towards Unified Plant Variety Protection?

A recently published UK government document confirms that alignment between UK Plant Breeders’ Rights (PBR) and EU Community Plant Variety Rights (CPVR) is under consideration, allowing plant varieties to be protected in both the UK and the EU through a single right. This would save plant breeders considerable trouble: since Brexit, they have had to apply for rights separately in the EU and the UK to protect new varieties.

Although practical, this approach could have wider implications. A recent stakeholder briefing from the UK Horticultural Trades Association (HTA) highlights this point. According to the HTA, the EU CPVR Regulation (Council Regulation (EC) No 2100/94) has been included in the agreement and is therefore likely to apply through one of two routes: either the UK plant variety rights register would be extended to cover all EU rights, or the UK would directly adopt the Regulation through new legislation. Under either route, EU rights would be protected in the UK. However, it remains unclear whether that protection would cover all CPVRs or only newly granted rights, and what would happen to UK PBRs. This could also affect distinctness, uniformity and stability (DUS) testing, raising two questions: could UK DUS reports once again be recognized by the EU, and could the UK retain its testing capacity?

Other Implications for Plant Breeders

Beyond these practical issues, the HTA briefing raises broader concerns about legal jurisdiction and UK autonomy. For example, the recent Nador Cott v Asda case highlights differences between UK and EU law in determining what constitutes an “essentially derived variety.” It is therefore crucial to establish which law will apply to plant varieties in the UK once the agreement takes effect, and this remains unclear. In terms of autonomy, the UK is not an EU Member State and has no vote on future amendments to the CPVR Regulation, which is currently under review. This means that the rules with which the UK is currently aligning could change after the agreement takes effect, without the UK having a say.

The UK government has also stated that it will align with EU rules on the regulation of genetically modified organisms (GMOs). Precision breeding, however, remains subject to ongoing negotiations because the UK and the EU have taken different approaches. This raises the question of whether the EU’s New Genomic Techniques Regulation and its patent transparency provisions will be included in the agreement.

The agreement is expected to be welcomed by plant breeders and the wider agri-food sector. However, many questions remain unresolved and are likely to remain so until the agreement is published. Fortunately, the wait may not be too long: the UK government aims for the agreement to take effect in mid-2027.