Occasionally, the provider country of a certain genetic resource is unknown. Or the provider country of a genetic resource is a Party to the Nagoya Protocol, but has not established applicable access measures. What should you as a user of these genetic resources do in these cases?
What if the provider country is unknown?
If, despite best efforts being applied, the provider country cannot be identified, it is not possible to determine what, if any, national legislation or regulations apply. As the EU ABS Regulation (Regulation (EU) 511/2014) does not forbid the utilisation of genetic resources of unknown origin, utilisation may take place in such circumstances. However, if the provider country of the genetic resources is identified later, for example because new information has become available, the user obligations of the EU ABS Regulation do apply. So, if required by the now identified provider country, the user must obtain prior informed consent (PIC) and mutually agreed terms (MAT), or discontinue utilisation.
In short: although the EU ABS Regulation allows utilisation of genetic resources from an unknown provider country, there is more legal certainty if only genetic resources of known origin are used and the requirements of the provider country are complied with.
For more information, see section 3.3 of the Guidance.
What if a provider country is Party to the Nagoya Protocol, but has not established any access measures?
Some provider countries that are Party to the Nagoya Protocol may not (yet) have established applicable ABS access measures. The EU ABS Regulation (Regulation (EU) 511/2014) only applies to genetic resources from provider countries which are Parties to the Nagoya Protocol and have established applicable access measures. If no access measures have been established, the use of these genetic resources is outside the scope of the EU ABS Regulation.
You may check the ABS Clearing-House (ABSCH) website to see if a provider country has established applicable access measures. However, do note that if the ABSCH does not contain information on access legislation, this does not necessarily mean that the country does not have access legislation. Users of genetic resources are recommended to contact the country’s National Focal Point for more information. Names and contact details of National Focal Points of most Parties to the Nagoya Protocol are available on the ABSCH.
For more information, see sections 2.1.2 and 3.2 of the Guidance.