Access or Utilisation – What Triggers User Obligations?

This report by Natural Justice and the Berne Declaration critiques a draft European Commission (EC) Regulation for implementing the Nagoya Protocol. The authors argue that the draft's focus on 'access' as the trigger for user obligations, rather than 'utilisation', creates legal uncertainty for EU users and undermines the Protocol's goal of fair and equitable benefit-sharing.

• The draft European Commission (EC) Regulation limits the obligations of users of genetic resources (GRs) and traditional knowledge (TK) to those accessed in provider countries after the Nagoya Protocol has been ratified by both the EU and the country of origin.
• The authors contend that the EC's access-based trigger contrasts with the majority of existing national ABS systems in provider countries, where any new use of GRs triggers obligations to share benefits.
• The report argues that the EC proposal creates legal uncertainty for European users, as they may comply with EU law while remaining in breach of the ABS laws of the provider country.
• The authors suggest that the EC's approach may encourage provider countries to implement more restrictive and onerous ABS procedures because they cannot enforce the renegotiation of prior informed consent (PIC) and mutually agreed terms (MAT) for new uses once access is granted.
• The report highlights that an access-only trigger creates loopholes for illegal users, as the date of acquisition is often untraceable for illegally accessed material, allowing users to claim the material was accessed before the Nagoya Protocol.
• The authors argue that a utilisation-based trigger would better reflect the reality of bioprospecting supply chains, where material is often exported as a commodity without the initial assumption that it will be used for research and development.
• The report identifies a risk of unfair competition under the draft EU regulation, where some competitors might use GRs from private collections exempt from the regulations while others must negotiate new access with the country of origin.

APA

Natural Justice (2013). Access or Utilisation – What Triggers User Obligations? https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf

Chicago

Natural Justice. Access or Utilisation – What Triggers User Obligations? 2013. https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf.

Wikipedia

{{cite report |author=Natural Justice |title=Access or Utilisation – What Triggers User Obligations? |date=2013 |url=https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{naturaljustice2013access, author = {{Natural Justice}}, title = {{Access or Utilisation – What Triggers User Obligations?}}, institution = {Natural Justice}, year = {2013}, url = {https://naturaljustice.org/wp-content/uploads/2015/09/Nagoya-Protocol-Submission.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }