Fines for violations against regulations on trade in plant varieties applied as of July 28, 2023 in Vietnam

Fines for violations against regulations on trade in plant varieties applied as of July 28, 2023 in Vietnam (Internet image)

Sale of plant varieties in Vietnam

According to Clause 5, Article 2 of the Law on Crop Production 2018, plant variety means a population of plants that can be distinguished from other populations of plants through the expression of at least one trait which is passed to the next; is uniform in morphological characteristics and stable over the cycle of propagation; has the value for cultivation or use; includes agricultural plant varieties, medicinal plant varieties, ornamental plant varieties and edible mushroom varieties.

Pursuant to Clauses 1 and 2, Article 13 of the Law on Crop Production 2018, the general requirements concerning recognition of circulation and self-declaration of circulation of plant varieties include

- Plant varieties belonging to the main plant species may be produced, traded, exported or imported only after being granted the decision on recognition of plant variety circulation as provided for in Article 15 of the Law on Crop Production 2018, or granted the Decision on recognition of privileged circulation of plant varieties as provided for in Article 16 of the Law on Crop Production 2018, except in the case where plant varieties are intended for research, trial, exhibition, international exchange or production of hybrid seeds for export.

- Plant varieties not belonging to the main plant species may be produced, traded, exported or imported only if breeding organizations or individuals are granted permission for self-declaration of circulation of plant varieties as provided for in Article 17 of the Law on Crop Production 2018, except in the case where plant varieties are intended for research, trial, advertisement, exhibition, international exchange or production of hybrid seeds for export.

According to Clause 1, Clause 2, Article 22 of the Law on Crop Production 2018, requirements for eligibility of an organization or individual for production and trading of plant varieties are as follows:

- Organizations and individuals producing plant varieties shall be obliged to meet the following requirements:

+ They have to own plant varieties or have to be authorized by other organizations or individuals owning plant varieties obtaining the decision on recognition of circulation or permission for self-declaration of circulation from competent authorities;

+ They own or hire locations, facilities and equipment conformable to national standards of methods for production of plant varieties; in the absence of national standards, local standards shall be applied.

- Organizations and individuals trading plant varieties must set up a legitimate business location and ensure that the origin of a plant variety batch may be traced back.

Pursuant to Article 8 of Decree 94/2019/ND-CP detailing Article 22 of the Law on Crop Production 2018 on elaborating eligibility requirements for production and sale of plant varieties:

An organization or individual producing and selling plant varieties shall comply with the eligibility requirements specified in Article 22 of the Law on Crop Production 2018 and some of the following regulations:

- Before selling plant varieties, the organization or individual shall send a notification via an email or in person or by post to the Department of Agriculture and Rural Development of the province where plant varieties are sold, which contains the following information: business location, name of the organization or individual or legal representative and contact telephone so that the notification is posted on the web portal of the provincial Department of Agriculture and Rural Development;

- The organization or individual producing and selling plant varieties shall have documents serving tracing of the plant variety batch, including information about plant variety sales contract and invoices; documents about quality of the plant variety batch and appropriate label according to Article 10 of Decree 94/2019/ND-CP.

Regarding perennial fruit crops and perennial industrial crops, information about propagating materials used, standard applies, quantity and date of delivery of the crops is required.

In addition, Clauses 1, 4, Article 9 of the Law on Crop Production 2018 provide for prohibited crop production activities, including:

- Manufacturing, trading and importing plant varieties which have not obtained circulation decisions or circulation self-declaration, unless otherwise permitted by competent authorities.

- Producing, trading and importing plant varieties, fertilizers, other agricultural supplies and plant products which are counterfeit, expire and are of unknown origin.

Fines for violations against regulations on trade in plant varieties applied as of July 28, 2023 in Vietnam

According to Article 11 of Decree 31/2023/ND-CP (effective as of July 28, 2023), fines for violations against regulations on trade in plant varieties in Vietnam are as follows:

- A fine ranging from VND 3.000.000 to VND 5.000.000 shall be imposed for one of the following violations:

+ Selling and purchasing plant varieties that are not main plant species without obtaining permission for self-declaration of circulation of plant varieties according to regulations of the law on crop production;

+ Selling and purchasing plant varieties without notifying the Department of Agriculture and Rural Development of province where such plant varieties are purchased and sold of the transaction address, name of the entity or legal representative and contact phone number.

- A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed for purchasing and selling plant varieties (except for perennial fruit trees and industrial perennials) without having documents ensuring tracing of the origin of plant variety batches or documents on the quality of plant variety batches according to regulations.

- Fines for acts of trading in industrial plant varieties, perennial fruit trees without dossiers to ensure traceability of plant variety batches, quality dossiers of plant variety batches according to regulations, specifically:

- A fine shall be imposed for purchasing and selling perennial fruit trees and industrial perennials without having documents ensuring tracing of the origin of plant variety batches or documents on the quality of plant variety batches according to regulations. To be specific:

+ A fine ranging from VND 3.000.000 to VND 4.000.000 shall be imposed for purchasing and selling a plant variety batch of less than 100 plant varieties;

+ A fine ranging from VND 4.000.000 to VND 5.000.000 shall be imposed for purchasing and selling a plant variety batch of from 100 plant varieties to less than 200 plant varieties;

+ A fine ranging from VND 5.000.000 to VND 7.000.000 shall be imposed for purchasing and selling a plant variety batch of from 200 plant varieties to less than 500 plant varieties;

+ A fine ranging from VND 7.000.000 to VND 10.000.000 shall be imposed for purchasing and selling a plant variety batch of over 500 plant varieties;

- A fine shall be imposed for purchasing and selling plant varieties whose period of use expires. To be specific:

+ A fine ranging from VND 1.000.000 to VND 3.000.000 shall be imposed for a plant variety batch worth less than VND 5.000.000;

+ A fine ranging from VND 3.000.000 to VND 5.000.000 shall be imposed for a plant variety batch worth from VND 5.000.000 to less than VND 10.000.000;

+ A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed for a plant variety batch worth from VND 10.000.000 to less than VND 20.000.000;

+ A fine ranging from VND 10.000.000 to VND 15.000.000 shall be imposed for a plant variety batch worth from VND 20.000.000 to less than VND 30.000.000;

+ A fine ranging from VND 15.000.000 to VND 20.000.000 shall be imposed for a plant variety batch worth from VND 30.000.000 to less than VND 40.000.000;

+ A fine ranging from VND 20.000.000 to VND 30.000.000 shall be imposed for a plant variety batch worth from VND 40.000.000 to less than VND 50.000.000;

+ A fine ranging from VND 30.000.000 to VND 40.000.000 shall be imposed for a plant variety batch worth from VND 50.000.000 to less than VND 70.000.000;

+ A fine ranging from VND 40.000.000 to VND 50.000.000 shall be imposed for a plant variety batch worth over VND 70.000.000;

- A fine shall be imposed for purchasing and selling plant varieties that are main plant species without obtaining the decision on recognition of circulation, the decision on recognition of new plant varieties or the decision on recognition of privileged circulation. To be specific:

+ A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed for an amount of purchased/sold plant varieties worth less than VND 50.000.000 or in case the illegal profit obtained is less than VND 15.000.000;

+ A fine ranging from VND 10.000.000 to VND 15.000.000 shall be imposed for an amount of purchased/sold plant varieties worth from VND 50.000.000 to less than VND 75.000.000 or in case the illegal profit obtained is from VND 15.000.000 to less than VND 25.000.000;

+ A fine ranging from VND 15.000.000 to VND 20.000.000 shall be imposed for an amount of purchased/sold plant varieties worth from VND 75.000.000 to less than VND 100.000.000 or in case the illegal profit obtained is from VND 25.000.000 to less than VND 35.000.000;

+ A fine ranging from VND 20.000.000 to VND 25.000.000 shall be imposed for an amount of purchased/sold plant varieties worth from VND 100.000.000 to less than VND 125.000.000 or in case the illegal profit obtained is from VND 35.000.000 to less than VND 50.000.000;

+ A fine ranging from VND 25.000.000 to VND 30.000.000 shall be imposed for an amount of purchased/sold plant varieties worth from VND 125.000.000 to less than VND 150.000.000 or in case the illegal profit obtained is from VND 50.000.000 to less than VND 65.000.000;

+ A fine ranging from VND 30.000.000 to VND 35.000.000 shall be imposed for an amount of purchased/sold plant varieties worth from VND 150.000.000 to less than VND 175.000.000 or in case the illegal profit obtained is from VND 65.000.000 to less than VND 80.000.000;

+ A fine ranging from VND 35.000.000 to VND 40.000.000 shall be imposed for an amount of purchased/sold plant varieties worth from VND 175.000.000 to less than VND 200.000.000 or in case the illegal profit obtained is from VND 80.000.000 to less than 100.000.000;

+ A fine ranging from VND 40.000.000 to VND 50.000.000 shall be imposed for an amount of purchased/sold plant varieties worth over VND 200.000.000 or in case the illegal profit obtained is over VND 100.000.000 when there is a decision not to institute criminal proceedings, a decision on annulment of the decision on institution of criminal proceedings, a decision to terminate investigation, a decision to dismiss the lawsuit, or a decision to dismiss the lawsuit against the suspect or to grant exemption from criminal liability according to judgments issued by the presiding agency;

Besides, according to Clause 6, Article 11 of Decree 31/2023/ND-CP (effective from July 28, 2023) stipulating additional sanctions for violations against regulations on trade in plant varieties is that the decision on recognition of circulation of the plant variety or the decision on recognition of new plant varieties shall be suspended for a fixed period of 03 - 06 months for any violation specified in Clauses 2 and 3 of this Article is committed in case the entity issued with the decision on recognition of circulation of the plant variety or the decision on recognition of new plant varieties purchases or sells new plant varieties that are main plant species.

Besides, based on Clause 7, Article 11 of Decree 31/2023/ND-CP (effective from July 28, 2023) stipulating remedial measures for violations against regulations on trade in plant varieties include:

- Enforced repurposing of plant varieties for any violation specified in Clause 4 of Article 11 of Decree 31/2023/ND-CP; enforce destruction of plant varieties that are not eligible for repurposing.

- Enforced destruction of plant varieties for any violation specified in Clause 5 of Article 11 of Decree 31/2023/ND-CP;

- Enforced return of illegal profits obtained from violations specified in Article 11 of Decree 31/2023/ND-CP.

Thus, violations against regulations on trade in plant varieties can be fined up to VND 50,000,000 for individuals and up to VND 100,000,000 for organizations.

In addition, when falling into the case specified in Clauses 6 and 7, Article 11 of Decree 31/2023/ND-CP (effective from July 28, 2023), organizations and individuals commit acts of violating regulations on trade in plant varieties, it is mandatory to enforce additional penalties and take remedial measures in accordance with law.

Nguyen Pham Nhut Tan

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