General comments on a possible due diligence system
The International Chamber of Commerce’ (“ICC”) greatly appreciated the recent discussions between its members and DG Environment on the possibility of putting into place a due diligence system as part of the EU’s implementation of the Nagoya Protocol (“Protocol”).
We understand that the aim would be to set up a system to allow monitoring of adherence by companies to due diligence requirements relating to ABS, as an alternative to monitoring individual transactions.
ICC members believes that such a due diligence system could be a possible option for business if:
- the financial and administrative burdens associated with such a system are reasonable and do not outweigh possible benefits, including from the perspective of SMEs;
- the scope of the obligations is clearly defined so that companies know to which activities and to which genetic resources and associated traditional knowledge due diligence requirements must be applied;
- due diligence requirements are based as much as possible on existing company processes and procedures;
- such requirements are flexible enough to be adapted to the situations in different sectors.
If a due diligence system is combined with check points, ICC members suggest a single check point, which could be the competent (national) authority, preferably one at EU level. Other checkpoints which have been suggested – such as customs, IP offices, or marketing approval authorities – would not be appropriate as they would create legal uncertainty and/or trade blockages for companies that would severely hamper business operations.
In view of the very tight time frame within which the European Commission is working, we believe that it would be preferable for any regulation or directive to set out the elements of a system at a high level and to provide for more detailed measures if necessary in later implementing instruments. This would allow more time to properly consider the implications of specific obligations for users, which is necessary in this very new and untested area of regulation.
Comments on elements of the EU Timber Regulation as a basis for a possible ABS due diligence system
We understand that one of the possible models for a due diligence system is the EU’s regulation regarding the introduction of illegally harvested timber into the EU market (Regulation No. 995/2010) (hereinafter “Timber Regulation”).
While certain elements of the Timber Regulation could be considered as a model for implementation of the Protocol, we retain certain concerns regarding the implementation of such provisions with respect to genetic resources and associated traditional knowledge, and emphasize that these elements would need to be adapted to the particular context of the Protocol.