Proposal for a COUNCIL DECISION on the signing of 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
Date: 2011-02-11
Institutions: European Commission
Subjects: European convention, biodiversity, biotechnology, conservation of resources, exploitation of resources, management of resources, market-sharing agreement, natural resources, profit sharing, protocol to an agreement

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EUROPEAN COMMISSION 

Brussels, 11.2.2011 
COM(2011) 49 final 

2011/0024 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing of 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

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EXPLANATORY MEMORANDUM 

1.  The  Convention  on  Biological  Diversity  (CBD)  is  the  main  international  framework  for 
measures to conserve biological diversity, to sustainably use its components and for the fair 
and  equitable  sharing  of  benefits  arising  from  the  utilisation  of  genetic  resources.  With 
currently 193 Parties, the Convention has almost universal membership. The European Union 
and all of its 27 Member States are Parties to the Convention. 

2.  Article  15  CBD  establishes  a  general  framework  for  access  to  genetic  resources  and 
benefit-sharing: it recognises the authority of states to determine access to genetic resources 
as  part  of  their  sovereign  rights  over  natural  resources.  Parties  are  obliged  to  take  steps  to 
facilitate  access  to  genetic  resources.  At  the  same  time  all  Parties  are  obliged  to  take 
legislative, administrative or policy measures to share in a fair and equitable way the results 
of  research  and  development  and  the  benefits  arising  from  the  commercial  and  other 
utilisation of genetic resources with the Party providing these resources. 

3. Heads of state and government attending the World Summit on Sustainable Development 
in  August  2002  agreed  to  launch  negotiations  on  an  "international  regime"  on  access  and 
benefit-sharing in the framework of the CBD. The Seventh Conference of the Parties to the 
CBD  (CBD  COP7)  in  February  2004  adopted  a  detailed  negotiating  mandate.  Negotiations 
were undertaken in the Ad Hoc Open-Ended Working Group on Access and Benefit-sharing 
(ABS  WG).  At  CBD  COP8  in  March  2006,  Parties  committed  themselves  to  complete 
negotiations at the earliest possible time before CBD COP10 in October 2010. At CBD COP9 
in  May  2008,  Parties  agreed  on  the  textual  basis  and  on  a  detailed  roadmap  for  the  final 
negotiations. 

4. Final negotiations on the Nagoya Protocol were held in April 2009, in November 2009, in 
January 2010, in March 2010, in July 2010, in September 2010 as well as prior to and during 
CBD COP10 in October 2010. 

5. On 26 October 2009, the Council adopted a decision formally authorising the Commission 
to  participate,  on  behalf  of  the  European  Community  for  matters  falling  within  Community 
competence, in the negotiations on the international regime on access and benefit-sharing at 
the  eighth  and  ninth  meeting  of  the  Ad  Hoc  Open-Ended  Working  Group  on  Access  and 
Benefit-sharing.  The  authorisation  included  all  issues  under  negotiation,  except  traditional 
knowledge  associated  with  genetic  resources,  which  was  negotiated  by  the  Member  States 
holding  the  Presidency  of  the  Council  on  behalf  of  the  Member  States.  The  Commission's 
authority  to  negotiate  was  extended  until  CBD  COP10  by  a  decision  of  the  Council  on  21 
September 2010. 

6.  Throughout  the  negotiations,  the  Council  repeatedly  expressed its  political  support  to  the 
negotiation  and  its  commitment  to  a  successful  outcome.1  On  29  October  2010,  EU 
ministerial  coordination  during  CBD  COP10 
in  Nagoya  unanimously  supported  a 
compromise proposal on the ABS Protocol tabled on the last day of COP10 by the Japanese 
COP10 Presidency, considering that it was within the limits of the agreed EU positions and 
the negotiating directives addressed to the Commission. 

1 

See  Council  Conclusions  of  6  March  2006,  28  June  2007,  4  March  2008,  16  March  2010,  and  14 
October 2010. 

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7.  On  30  October  2010,  final  plenary  of  CBD  COP10  successfully  adopted  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. The Protocol will be 
open for signature at the United Nations headquarters in New York from 2 February 2011 to 1 
February 2012. 

8. The CBD COP10 decision adopting the Nagoya Protocol calls upon the Parties to the CBD 
to  sign  the  Protocol  at  the  earliest  opportunity  and  to  deposit  instruments  of  ratification, 
acceptance  or  approval  or  instruments  of  accession, as  appropriate,  with  a  view  to  ensuring 
the entry into force of the Protocol as soon as possible. An Intergovernmental Committee for 
the Nagoya Protocol will meet in June 2011 and April 2012 to prepare the first meeting of the 
Parties to the Protocol. 

9. On 20 December 2010, the Council adopted conclusions that, inter alia, welcome adoption 
of the Nagoya Protocol on ABS, and invite the Commission to sign the Nagoya Protocol at 
the earliest opportunity and start preparations for its timely ratification and implementation.2 

10. In view of the above, it is appropriate for a representative of the Union to sign, subject to 
subsequent conclusion, 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. 

2 

See Council Conclusions of 20 December 2010, in particular paragraphs 1 and 21. 

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2011/0024 (NLE) 

Proposal for a 

COUNCIL DECISION 

on signing 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 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 
192 (1), in conjunction with Article 218 (5), thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

In  August  2002,  heads  of  state  and  government  attending  the  World  Summit  on 
Sustainable  Development  agreed  to  launch  negotiations  for  an  international  regime  on 
access and benefit-sharing in the framework of the Convention on Biological Diversity. 

On  26  October  2009,  and  again  on  21  September  2010,  the  Council  authorised  the 
Commission  to  participate  in  those  negotiations  on  behalf  of  the  Union  with  respect  to 
matters falling within Union competence. 

The Council repeatedly expressed its political commitment  to the successful conclusion 
of the negotiations by the agreed deadline.3  

The  Union  ministerial  coordination  meeting  held  on  29  October  2010  during  the  tenth 
Conference of the Parties to the Convention Biological Diversity in Nagoya unanimously 
supported  the  compromise  proposal  for  a  Nagoya  Protocol  tabled  by  the  Japanese 
Presidency. 

Following  its  adoption  by  the  tenth  Conference  of  the  Parties  to  the  Convention  on 
Biological Diversity, 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 will be open for signature at the United Nations headquarters in New 
York from 2 February 2011 to 1 February 2012. 

3 

See Council Conclusions of 6 March 2006, 28 June 2007, 4 March 2008, 16 March 2010, and 14 October 
2010. 

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(6) 

(7) 

On 20 December 2010, the Council welcomed the adoption of the Nagoya Protocol and 
invited  the  Commission  to  sign  the  Nagoya  Protocol  at  the  earliest  opportunity  and  to 
start preparations for its timely ratification and implementation.4 

The  Agreement  should  be  signed  on  behalf  of  the  Union,  subject  to  its  conclusion  at  a 
later date. 

HAS ADOPTED THIS DECISION: 

Article 1 

The President of the Council is hereby authorised to designate the person or persons empowered 
to sign 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 on behalf of 
the Union. 

The text of the Agreement to be signed is attached to this Decision. 

This Decision shall enter into force on the date of its adoption. 

Article 2 

Done at  

For the Council 
The President 

4 

See Council Conclusions of 20 December 2010, in particular paragraphs 1 and 21. 

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