The three objectives of the Convention on Biological Diversity (CBD) are the conservation of biological diversity, the sustainable utilisation of its components and the fair and equitable sharing of benefits arising from such utilisation, known as "ABS". 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" agreed in Nagoya at CBD COP10 further details the ABS provisions of the Convention. The Protocol establishes a clear and transparent framework on how researchers and companies will in the future obtain access to genetic resources and to traditional knowledge associated with genetic resources for research and development and how benefits arising from the use of such material or knowledge will be shared. The Protocol also sets out a clear obligation for Parties to provide that users of genetic material under their jurisdiction respect the domestic regulatory frameworks of Parties where genetic material has been acquired.. The Nagoya Protocol is intended to ensure equitable benefit sharing in return for the use of genetic resources, acknowledging and respecting at the same time indigenous communities’ rights over their traditional knowledge and genetic resources.
The Protocol is a treaty with legally binding effects that significantly expands the general ABS framework of the CBD, and it is expected to enter into force in 2014. Once operational, the Nagoya Protocol will generate significant benefits for biodiversity conservation in states that make available the genetic resources over which they hold sovereign rights. It will in particular:
The EU and its Member States are committed to become Parties to the Protocol to secure access of EU researchers and companies to quality samples of genetic resources, based on reliable access decisions at low transaction costs. This will create new opportunities for nature-based research and contribute to the development of a bio-based economy.
The European Commission has proposed a Regulation establishing rules governing access and benefit sharing for genetic resources and traditional knowledge associated with genetic resources to enable the Union to ratify the Nagoya Protocol and formally become a Party. The system of EU measures for implementing the Nagoya Protocol is mainly based on the Union's environment competence. The Union and each of its Member States must be able to demonstrate compliance with all Protocol obligations before formally joining the Nagoya Protocol.
The Regulation would only apply to genetic resources and traditional knowledge that were acquired and utilized after the entry into force of the Nagoya Protocol for the Union. The Regulation introduces measures for user compliance in the form of a due diligence obligation for all EU users to ensure that genetic resources and traditional knowledge associated with genetic resources were accessed in accordance with applicable access and benefit sharing legislation or regulatory requirements and that benefits are fairly and equitably shared upon mutually agreed terms. The regulation does not establish Union legislation for access. Member States would have discretion whether or not to require prior informed consent and benefit-sharing for genetic resources that belong to them. Their decisions on this would not be a precondition for Union ratification.