Will the European Union Legalise Biopiracy?

A new opinion piece, published on 18 June by Natural Justice and the Berne Declaration, sharply criticises the European Commission’s draft EC Regulation 2012/0278 (COD) to implement the Nagoya Protocol on Access and Benefit-Sharing in the European Union (EU). By excluding a significant category of genetic resources (GRs) from the scope of the regulation, the Draft fails to implement the main objective of the Convention on Biological Diversity and the Nagoya Protocol: the fair and equitable sharing of benefits arising from the utilisation of GRs and associated traditional knowledge (TK). In addition it will lead to greater legal uncertainty for users, allow for unfair competitive practices and, in the long run, lead provider countries to implement more burdensome access procedures to GRs.

The ENVI Committee of the European Parliament will vote on the Draft Regulation on the 4th of July, with a final draft expected to be tabled in the European Parliament in October 2013. In the Draft Regulation, user obligations would only apply to GRs and associated TK that have been physically accessed in the country of origin after the entry into force of the Nagoya Protocol. This implementation would be in sharp contrast to the large majority of existing ABS laws in provider countries where the utilisation of GRs and associated TK also triggers the obligation to share benefits, based on prior informed consent and mutually agreed terms. The European Commission’s narrow and biased interpretation of the Nagoya Protocol and subsequent national implementation is likely to have a number of very serious consequences:

• First, a significant share of GRs and associated TK used in the EU will not be covered by the Draft Regulation. This will undermine the objective of the Nagoya Protocol to share benefits equitably and fairly, as well as legalise biopiracy.
• Second, individual users of GRs and TK will not be provided with legal certainty, something they have long sought. Indeed, scenarios are likely to emerge where the utilisation of GRs and TK may be legal under EU law, but illegal under the law of the provider country. This could result in a user being in compliance with EU obligations under the new Access and Benefit Sharing regulations, but nevertheless subject to prosecution in a provider country upon entering its territory. Nobody has an interest in such a scenario.
• Third, a functioning global ABS system can only be based on mutual trust between providers and users. The current wording of the Draft Regulation will undermine this trust and is likely to lead to stricter access conditions in provider countries, thereby making research and development (R&D) increasingly bureaucratic and burdensome for European users. One of the underlying objectives of the Nagoya Protocol, namely to facilitate access for R&D, would subsequently not be reached and a valuable opportunity to incentivise the conservation and sustainable use of biodiversity would be missed.

We therefore urge the European Parliament, the Council and the Commission to enact a regulation that is line with the objective of the Nagoya Protocol and ensures that all related utilisation that takes place after the Nagoya Protocol comes into force complies with the access and benefit sharing rules of provider countries. The ENVI Committee Rapporteur made several proposals for amendments in this regard. Only by doing so can trust be built between user and provider countries, legal certainty established, and the conservation and sustainable use of biodiversity advanced.

Access or Utilisation  –  What Triggers User Obligations? A Comment on the Draft Proposal of the European Commission on the Implementation of the Nagoya Protocol on Access and Benefit Sharing, can be downloaded on the websites of the Berne Declaration and Natural Justice.

For more information, please contact: François Meienberg (the Berne Declaration) at food (at) evb.ch, or Johanna von Braun (Natural Justice) at Johanna (at) naturaljustice.org.

EU Working Towards Implementation of the Nagoya Protocol

The Nagoya Protocol is an international agreement which aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way. It was adopted on 29 October 2010 in Nagoya, Japan.

The European Parliament is now in the process of passing it into European law and thus giving precedent for the requirements of the European member states for when they pass the Nagoya Protocol into their domestic law.

There are a number of concerns with the EU's draft regulations as they stand. See here for Natural Justice's Letter of Concern to the European Union Parliament. The draft regulations are currently in review and are expected to be tabled in the EU Parliament in October to be ratified by the end of the year.
Click here for the EU's hearing on the ABS Draft Regulations.

Meeting of the African Group of Parties to CBD

Via abs-initiative.info

On 1 March 2013, the African Group of parties to the Convention on Biological Diversity (the African Group) had a meeting on the sidelines of the 7th Pan-African Access and Benefit Sharing (ABS) workshop in Phalaborwa, South Africa. The meeting was chaired by Prudence Galega of the Ministry of Environment Protection of Nature of Cameroon. 

The African Group discussed their future involvement in discussions around the draft AU guidelines on ABS. They agreed that the African Group should call for inputs or questions emanating from various fora are strategically important and it is important for the group to raise the African position in all fora. 

With regard to draft EU regulations on ABS, they wanted to explore writing a letter of concern to the European Council. Pierre Du Plessis from the Centre for Research Information Action in Africa mentioned that Kabir Bavikate and Johanna Von Braun of Natural Justice have already drafted something along these lines. The African Group decided to write a one-page document to the European Council to endorse the draft letter of concern to the EU Parliament written by Natural Justice.

Side Event on Proposed EU ABS Regulations

Via abs-initiative.info

On 28 February 2013, the ABS Capacity Development Initiative held a side event on the draft EU ABS regulations during the 7th Pan-African Access and Benefit Sharing (ABS) workshop in Phalaborwa, South Africa. The draft regulations were presented by Soren Jensen of the ABS focal point at the Danish Ministry of the Environment. 

With regard to the process of adoption, he recalled that the draft regulation was published on the 4 October 2012 by the European Council. The draft is being discussed in the EC but the European Parliament will have the final say. A council of ministers is scheduled for 21 March 2013. He further outlined the definitions, scope and objectives of the draft regulations. The objective of the regulations is to implement the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity in the EU and to enable it to ratify Protocol.


Mr Jensen mentioned that the proposed regulations set out obligations for users of genetic resources and traditional knowledge (TK) associated with genetic resources in the EU. They would oblige all users to exercise due diligence to ascertain that genetic resources and TK associated with genetic resources used were accessed in accordance with applicable legal requirements and that, where relevant, benefits are fairly and equitable shared upon mutually agreed terms. To that end, all users would need to seek, keep and transfer to subsequent users certain information relevant for ABS. The proposal sets out minimum features of due diligence measures. Per Mr Jensen, the EU draft regulations also foresee a system of EU-trusted collections that would substantially lower the risk that illegally acquired genetic resources are used in the EU.

In the responses from participants, some stated that African countries should be extremely vigilant in accepting the use of resources because this provision shifts the burden of compliance to Collections. Participants were also of the view that the notion of “due diligence” in the draft should be clarified. They were also concerned by the fact that misappropriation of TK is not considered an offence in the draft regulations. Furthermore, participants were also concerned that the only TK that is protected under the draft regulation is TK included in Mutually Agreed Terms (MAT). They argued that it is worrying that this excludes a whole range of TK that has not been covered in the relevant MAT contracts.