Requirement of EU establishment lifted under the new Plant Protection Products Regulation

The new Plant Protection Products Regulation 1107/2009 will be applied as from 14 June 2011. While there has already been much discussion of this consolidation of previous legislation and the impact a more harmonised approach will have for industry, it is worth noting one further small yet potentially significant difference between Directive 91/414 and the new Regulation.

Under Article 9(2) of Directive 91/414, an applicant for a plant protection product authorisation was required to "have a permanent office within the Community". Such a requirement is notably absent from the equivalent provision of Regulation 1107/2009 (Article 29).

Furthermore, the definitions of applicant, producer and authorisation holder under Article 3 of the Regulation do not implicitly or explicitly require such actors to be established in the EU.

Accordingly, under the new Regulation, there is no requirement for an applicant for a plant protection product authorisation to have an office in the EU, permanent or otherwise.

The clear practical effect of this change in approach under the new rules is that it will be easier for non EU companies to apply for authorisations for plant protection products and to directly place such products on the market in the EU. This may be viewed as opening up the market to non EU companies who will no longer need to apply for authorisations via a sole representative in the EU. It remains to be seen how the Member State competent authorities will be able to effectively enforce the Regulation adequately in cases were a faulty product would give rise to liabilities and penalties under Article 72 of the Regulation.