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EUROPEAN-SEED.COM I EUROPEAN SEED I 23 ES Can you explain why ESA decided not to support the court case Could this change in the future and if yes what needs to happen for that SZ ESA has in fact always supported the case as far as the arguments and reasoning behind it are concerned. During the whole legislative process ESA has been explaining to the legis- lators the problems described above and has been pleading for them to take into account the distinct features of commercial plant varieties. In fact an amendment was proposed to con- sider the due diligence obligation as fulfilled in case commercial plant varieties are accessed and utilized in breeding. However as a trade association ESA could not do more since under EU procedural law there are very strict condi- tions as to whether an applicant is directly and individually concerned by a measure in order to file a request for annulment. Once the two distinct actions had been filed by the individual companies ESA without hesitation decided to intervene in the case on their behalf and support their pleas. ESA filed an application for leave to intervene to the General Court of the EU in mid-December and now the General Court will have to decide whether or not to permit the association to file a statement in intervention on behalf of the applicants. ES How could this happen at intergov- ernmental level that there are two sets of international regulations regulating with a large degree of overlap the same matter Is there a chance to untangle the two e.g. define which genetic resources each of the systems regulate Or is there a chance to assign all plant genetic resources for breeding into the ITPGRFA and all other genetic resources into the Nagoya Protocol SZ Since the CBD and the Nagoya Protocol cover and set rules for all genetic resources in theory indeed there is an overlap between the two international instruments. However as explained above Article 44 of the Nagoya Protocol intends to untangle this overlap by codifying the general principle of law according to which a specific regime prevails over the gen- eral regime. Therefore in legal terms there is no real overlap but in practice as explained above due to the many elements which define the actual scope of the treatys MLS it is not so easy and evident to define which genetic resources are covered by which regime. Certainly the best solution to clarify the situation would be to assign all PGRFA into the MLS or in other terms to expand the coverage of Annex I of the treaty to all species used in plant breeding. This is also the position the seed indus- try represents in the current treaty discussions regarding the enhancement of the MLS. In prac- tice however expanding the scope of Annex I is not without hurdles since it is part of the treaty and it appears that any modifications to it require unanimity of the more than 130 Contracting Parties of the treaty. It is currently under investi- gation what other ways could be found to expand the scope of the MLS in practice. One of such ways is already applied by a number of countries in Europe whereby the country decides in its own competence to apply the sMTA also to species that are not listed in Annex I. ES Is the seed industry in frequent contact with the CBDNP as it is with the IT When is the next meeting of the NP and what are the main topics that the seed industry wishes to influence SZ The seed industry has been following the negotiations leading up to the Nagoya Protocol as well as the discussions that took place between its adoption and its recent entry into force. Involvement of the seed industry in those discussions is ensured both on a sectorial level as well as in a cross-industry manner via the International Chamber of Commerce ICC. The first meeting of the parties to the Nagoya Protocol took place in October 2014 and the second meeting is scheduled for December 2016. The main topics the seed industry is carefully following are the developments regarding the ABS Clearing House Mechanism the Global Multilateral Benefit-Sharing Mechanism and the issue of an internationally recognised certificate of compliance. As to the ABS Clearing House the industry considers this as one of the core basic elements of the system and attaches a lot of attention to the fact that it has to be imple- mented in a way that users may rely on it as THE source of information for their compliance. If the clearing house is not able to meet these goals compliance with the system will become nearly impossible. Article 10 of the Nagoya Protocol provides that in the course of implementation of the Nagoya Protocol parties have to consider the need for and modalities of a Global Multilateral Benefit-Sharing Mechanism. Since the industry is of the view that there is no need for such a mechanism it is carefully following develop- ments in this regard. Lastly a very important point for the industry is still to get official con- firmation from the CBDNP that the sMTA of the treaty fulfills the criteria of an internationally recognised certificate of compliance and there- fore can be recognised as such. ES What does the entry into force of the Nagoya Protocol mean for plant breed- ers and seed companies in general What should they do to make sure that they are compliant with the Nagoya Protocol What can or can they not do now that the Nagoya Protocol has entered into force SZ In principle the fact that the Nagoya Protocol has entered into force does not change much in itself. It is more the entry into force of national ABS laws that matter since the scope of ABS measures and the obligations to follow in order to get access and be able to utilise genetic resources in a legally compliant way will depend on national ABS laws. The date of the entry into force of the protocol is how- ever important to remember October 12 2014 since it determines the point in time from which compliance with the provisions of national ABS regimes can be checked see also the case of the EU Regulation. In general terms companies should always check whether there are national ABS rules regulating access and utilisation of genetic resources in the country where they wish to access a genetic resource and the obligations applicable under those rules. Further on com- panies carrying out activities which fall under the scope of the EU Regulation implementing the Nagoya Protocol should as of October 12 2014 carefully document all genetic resources entering their premises which are used or may be used for RD purposes. 1 Depending on the discussion on the details it might be necessary to extend the list with some further questions. COMPANIES SHOULD ALWAYS CHECK WHETHER THERE ARE NATIONAL ABS RULES REGULATING ACCESS AND UTILISATION OF GENETIC RESOURCES IN THE COUNTRY WHERE THEY WISH TO ACCESS A GENETIC RESOURCE AND THE OBLIGATIONS APPLICABLE UNDER THOSE RULES. To learn more about the Nagoya Protocol and the Convention on Biological Diversity visit www.cbc.intabs.