The ABS system established in the French Law on Biodiversity

1How can we ensure that genetic resources and their associated traditional knowledge are used sustainably in France? How can we share the benefits of such activities fairly and equitably? How can we promote the involvement of users in the protection and promotion of biodiversity? All questions which find (tentative) answers in the ABS system, in place since 1 July 20171 after being announced in the 2016 Law on Biodiversity (Law for the Reconquest of Biodiversity, Nature and Landscapes) which served to ratify the Nagoya Protocol.2

2The ABS procedures established in Section V of this law apply to all persons seeking to access and use genetic resources on French territory, on land or at sea, or associated traditional knowledge held by communautés d’habitants. The communities in question are defined as those groups who traditionally derive their means of subsistence from the natural world, and whose way of life has implications for conservation and the sustainable use of biodiversity.

3These procedures (requiring a simple declaration for uses of genetic resources with no direct commercial intention, and an application for authorisation in other cases) are designed to ensure that prior, informed consent is obtained, including jointly-negotiated conditions for the sharing of benefits derived from the use of genetic resources or associated traditional knowledge: the French ABS mechanism thus reproduces the fundamental principles of the Nagoya Protocol.

4The Law on Biodiversity identifies the Ministry for the Environment as the administrative authority qualified to supervise these procedures. The law also envisages the possibility of the overseas territorial authorities fulfilling this role, but at time of writing none of them have requested this power. In certain overseas territories, such as French Polynesia and New Caledonia, ABS is governed by local regulations, and is thus not subject to the procedures set out in the Law on Biodiversity.

5International Recognised Certificate of Compliance (IRCC) are issued by the Ministry for the Environment and registered at the ABS Clearing House3, each containing specific benefit-sharing actions to be adopted by users in favour of the territories from which they intend to take resources and knowledge. These users fall into multiple categories (research institutions, companies from the cosmetic industry, food and agriculture firms etc.), as do the projects they are pursuing (fundamental research, commercial development of new cosmetic products, conservation of traditional knowledge etc.).

The Communautés d’habitants

6The traditional knowledge held by communautés d’habitants can only be used subject to a specific authorisation procedure, requiring the prior, informed consent of the communautés d’habitants involved, including negotiations to reach a benefit-sharing agreement. The law states that benefit-sharing must directly benefit communautés d’habitants.

7The Decree of 9 May 20174 specifies that this system applies to communautés d’habitants residing in Wallis & Futuna and French Guiana. It also names the public legal entities responsible for organising consultations and negotiating and signing benefit-sharing contracts with users.

Some specificities

8The French legislation hinges upon the notion of “new utilisations.” If samples are to be used in a research and development project with commercial intentions, departing from the stated purpose used to justify their original acquisition, then users are subject to the same obligations which apply when accessing resources in the field for the first time, and must negotiate the rights to this material with the provider.

9A further specificity introduced by the Law on Biodiversity is the requirement for users applying for patents to submit documentary evidence to the National Institute for Intellectual Property (INPI) that they have complied with their obligations under the Nagoya Protocol. This does not have any bearing upon the patent application process, but it does allow for better traceability of resources.

10The law also sets the value of financial rewards and sanctions. A maximum of 5% of the annual, global turnover (before tax) generated by products or processes obtained from genetic resources subject to authorisation is payable to the French Biodiversity Agency. A one-year prison sentence and a fine of up to €150,000 are the maximum penalties for using genetic resources or associated traditional knowledge without the necessary documents specified in the European regulations. The fine may rise to €1 million if the unauthorised use is for commercial development purposes.

European regulations for compliance with the Nagoya Protocol

11The Ministry for Research is, along with the Ministry for the Environment, one of the two institutions with the authority to implement the European requirements. The ministry performs due diligence on projects receiving funding for research work involving the use of genetic resources and/or associated traditional knowledge; it also monitors applications to add collected materials to the European Register of Collections. Collections listed on the European register are supposed to provide all of the relevant user documentation and information required by European Regulation 511/2014,5 but they remain responsible for ensuring the compliance of their activities with the ABS legislation of the countries from which the resources originate.

12This involves the use of forms:

• for coordinators of research projects receiving funding from outside their: a declaration submitted to the Ministry for Research, certifying that due diligence has been performed,
• for heads of collections (on a voluntary basis): a declaration submitted to the Ministry for Research, requesting that their collections be added to the European register.