Implementation of the Nagoya Protocol
The key issues relating to the implementation of ABS
The key issues relating to the implementation of ABS in France in France stem from its dual status: France is a user of genetic resources and of associated traditional knowledge (cosmetics, pharmaceuticals and agri-foods industries, etc.), but it is also a provider, due to its abundant biodiversity and the wealth of traditional knowledge possessed by traditional overseas populations as illustrated by the film “Views of stakeholders concerning ABS overseas" producedby the sustainable development ministry.
In the framework of the French National Biodiversity Strategy 2011-2020, the State has undertaken to establish a working group responsible for devising a proposal for a national ABS mechanism, taking account of institutional specificities and the mechanisms that exist overseas, in coordination with the projects carried out within the European Union and in consultation with the stakeholders. A working group has thus been meeting since 2011.
In 2009, the ministries responsible for ecology and the French overseas territories commissioned a study into the pertinence and feasibility of ABS mechanisms overseas, in order to identify the key issues to be addressed and lay the foundations for consultations with overseas stakeholders.
The results of this study, conducted by the Foundation for Biodiversity Research (Fondation pour la recherche sur la biodiversité) with an expert committee, were presented at a conference on 28 June 2011, in the presence of overseas stakeholders
French legal framework on ABS
France does not yet have national ABS legislation covering the whole of its territory.
The State has jurisdiction in environmental matters and if necessary, it can transfer its powers for the five overseas départements and regions (Guadeloupe, Guyana, Martinique, Mayotte and Reunion), Clipperton, Saint-Martin, Saint-Pierre-et-Miquelon and the French Southern and Antarctic Lands (TAAF). However, the State does not have jurisdiction in the other territories, namely: New Caledonia, French Polynesia, Saint-Barthélemy, Wallis and Futuna.
A) Provisions on ABS have already been adopted in certain overseas territories
Article L. 331-15-6 of the Environmental Code (Law no. 2006-436 of 14 April 2006 relating to national parks, marine nature parks and regional nature parks)
L'Article L. 331-15-6 of the Environmental Code allows for the definition of an authorisation regime within the Guiana Amazonian Park:
“Access to the genetic resources of species collected within the national park and their use are subject to authorisation. As proposed at a meeting of French elected representatives from the départements and regions, provided for in article 5915-1 of the General Code of Territorial Authorities, the National Park Charter defines the guidelines relating to the conditions for access and the utilisation of these resources, including with regard to the procedures for the sharing of any ensuing benefits, in compliance with the principles of the convention on biological diversity of 5 June 1992, and its articles 8.j and 15, in particular. The authorisations are issued by the President of the Regional Council (Conseil régional), with the assent of the President of the General Council (Conseil général) and after consultations with the public institution of the national park, without prejudice to the provisions of the French Intellectual Property Code".
As the National Park Charter is still being drafted, this authorisation regime has not yet been defined. In the meantime, the public institution of the Guiana Amazonian Park has, in the framework of a project carried out with the scientific council and the elected representatives concerned, developed a provisional procedure on ABS for projects requiring access to genetic resources and/or the associated traditional knowledge in the territories concerned with the Amazonian Park (core and membership areas). This procedure is transmitted to applicants in the form of a “code of good conduct”. It is supported by the authorities of the public institution of the Amazonian Park for consultation and dialogue with the “indigenous and local communities" (representatives of the traditional authorities appointed to the administrative board and “Committee of Local Life”) and allows the Scientific Council to formulate an informed opinion. After the transposition of the international commitments ratified by France concerning ABS into French law, the authorisation regime in the Amazonian Park will, if necessary, be modified, without it being necessary to revise the national park charter.
The Organic Law no. 99-209 of 19 March 1999 relating to New Caledonia assigns environmental jurisdiction to the provinces. The Northern Province, Southern Province and the Loyalty Islands Province can thus integrate the ABS provisions for genetic resources into their regulations. Both the Northern Province and Southern Province have adopted an Environmental Code with an identical structure, in 2008 and 2009, respectively.
New Caledonia has jurisdiction with regard to “customary civil status, customary lands and customary spoken language; borders of customary areas”. The Nouméa agreement gives the New Caledonia Congress complete jurisdiction to legislate on customary law through the law of the land.
A national bill relating to the customary status of traditional knowledge and the protection of indigenous intellectual property rights is currently being studied in New Caledonia.
2.1 Southern Province of New Caledonia
Since the adoption of the Environmental Code for the Southern Province on 20 March 2009, the regulations have controlled the collection and exploitation of genetic and biochemical biological resources (articles 311-1 to 311-4 of the Environmental Code).
Why are these regulations required?
New Caledonian biodiversity used to be exploited by both local and international researchers, without there being any opportunity for monitoring by the administration in charge of the natural heritage. By making prior authorisation a requirement for the collection of biological, genetic and biochemical resources, it is now possible to make sure that local scientists are associated with the project, that the owners of land on which the resources are collected will benefit from any economic spinoffs and that the scientific results of the research will be disseminated locally.
What is their field of application?
The authorisation is required for access to and the use of wild, natural biological and biochemical genetic resources of terrestrial and marine origin (i.e. any material derived from plants, animals, fungi or micro-organisms which contain specific characteristics, specific molecules or which lead to their conception):
- Regardless of the property on which they are situated: private, public or customary;
- Carried out by any natural or legal person governed by public or private law;
- For commercial or non-commercial, industrial or non-industrial, biotechnological, bioprospection, scientific, educational or conservation-related purposes.
However, the following are not subject to authorisation:
- Domestic use of biological resources (garden maintenance, picking of bouquets of flowers);
- Their traditional use and trade by local communities;
- Human genetic resources, which are covered by other regulations;
- Ex-situ biological resources (originating from New Caledonia, but which have already been taken away and which are currently in a botanical garden, for example);
- Agricultural and alimentary resources (picking of fruits, tubers and vegetables).
How to proceed?
The procedures for the constitution and submission of application files are set out on the website of the Southern Province (in French):
It should be noted that a modification to the regulations of the Southern Province relating to the harvesting and exploitation of biological, genetic and biochemical resources is being considered.
2.2 Northern Province of New Caledonia
The Northern Province is preparing an ABS instrument that should be adopted during 2013.
Access authorisations have already been issued by the President of the province and may be accompanied by an obligation to report back on information obtained on the resources collected and any publications.
3 . French Polynesia – Articles LP 100-1 et seq. of the Environmental Code of French Polynesia (national Law no. 2012-5 of 23 January 2012 on access to biological resources and the sharing of benefits derived from their utilisation)
According to Articles LP 100-1 et seq. of the Environmental Code of French Polynesia, an authorisation from the council of ministers is required for any access (collection and use) to biological resources and the associated traditional knowledge, for the purposes of scientific research, higher education, conservation and/or collection on a professional basis, for bioprospection, industrial applications or commercial use, regardless of whether or not these biological resources are exported. The applicant must also obtain the agreement of the owner(s) of the site on which the resource is situated, as well as the agreement of the holder(s) of the associated traditional knowledge (French Polynesia itself may be the holder of such knowledge).
A contract must be entered into between the applicant and French Polynesia concerning the sharing of monetary and non-monetary benefits. The monetary benefits received by Polynesia must be allocated to the conservation and promotion of biodiversity and the associated traditional knowledge.
If the owner of the site from which the resource was collected, or the holder of the knowledge, is not French Polynesia and has been identified, it shall receive monetary or non-monetary benefits from the applicant, to be negotiated by the parties in the framework of a contract. This contract must be drawn up prior to the access authorisation, in order to guarantee the sharing of benefits.
The fraudulent collection of biological resources is punishable by the fine that applies to fourth category contraventions (89,000 CFP francs), whilst the use of biological resources in ignorance of the regulatory provisions constitutes an offence punishable by a three-year prison sentence and a fine of 35,799,000 CFP francs. The fines, which are quintupled if the offender is a legal person, may also be increased to the equivalent of half of the financial benefits derived from the fraudulent utilisation.
B) Transitional voluntary access procedure for genetic resources in France (excluding competent overseas authorities)
Pending the introduction of a national legal framework for ABS, any researcher or company wishing to use genetic resources or associated traditional resources for research and development activities, may contact the French ABS focal point at the Ministry of Sustainable Development .
The following procedure applies, on a voluntary basis:
The applicant transmits an access request to the French ABS focal point, using the form which can be downloaded here.
On the basis of this form, the French ABS focal point can inform applicants of the related regulations with regard to access and the exportation of biological material which apply within the existing legal framework (e.g. regulations on protected species and protected areas, health rules, CITES, Law of the Sea, etc.), and which applicants may have failed to have identified on their own.
On the basis of any additional information, the French ABS focal point shall send the applicant a letter explaining all of the conditions for access, use and sharing of the benefits, to which the user undertakes to conform on a voluntary basis. For example, the sharing of benefits could consist of involving French researchers in the research project, organising training, registering samples of the collected resources in a national collection and allowing for joint entitlements to hold any patents with local partners, etc.
Applicants are recommended to transmit their access applications to the French ABS focal point at least three months before the planned start of the collection.
For territories that have an ABS mechanism (New Caledonia, French Polynesia, Guiana Amazonian Park), the application must be sent directly to the competent authorities (contact details included in the appendix of the form).
ABS contact points in France
French focal points on ABS :
The Ministry of Sustainable Development is the ABS focal point in France. On these grounds, its role is to prepare for the implementation of the Nagoya protocol in France, respond to requests for access to genetic resources situated in France, which are sent to it on a voluntary basis, and to conduct international negotiations on the implementation of the Nagoya Protocol.
Anca Leroy, ABS focal point for European and international negotiations
Delphine Morandeau, ABS focal point for national implementation
A network of ABS correspondents, appointed in each overseas département and authority, is currently being created. This section will soon be updated.
Guidelines and codes of good conduct for ABS
CIRAD, INRA, IRD, 2011. Lignes directrices pour l'accès aux ressources génétiques et leur transfert. 58 p (in French)