German Federal Agency for Nature Conservation (BfN)

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User measures

Regulation (EU) No 511/2014 of 16 April 2014 lays down uniform measures for users of genetic resources (and of traditional knowledge associated with genetic resources) to ensure compliance with the Nagoya Protocol in the Union. Detailed rules for the implementation of the Regulation as regards the register of collections, monitoring user compliance and best practices are set out in Implementing Regulation (EU) 2015/1866

Guidance document on the scope of application and core obligations of Regulation (EU) No 511/2014 (Notice No 2016/C 313/01)

It should be noted that these EU-level rules solely relate to measures to ensure that access to genetic resources (and traditional knowledge associated with genetic resources) takes place in accordance with prevailing ABS legislation or regulatory requirements in the provider country, and that benefits are fairly and equitably shared. They are to be distinguished from access rules within EU member states, which are not subject to Regulation (EU) No 511/2014 or Implementing Regulation (EU) 2015/1866. EU member states are therefore free to decide whether to regulate access to genetic resources (and traditional knowledge associated with them) within their national jurisdiction or to allow free access.

The EU legislation is implemented in Germany by the Act Implementing the Obligations under the Nagoya Protocol and Transposing Regulation (EU) No. 511/ 2014. The Implementing Act entered into force on July 1, 2016.

Further information on user measures and due Diligence obligations

Access

Unlike a number of other EU member states, Germany has not adopted legislation specifically regulating access to genetic resources or questions of benefit sharing within German national jurisdiction. Access to genetic resources in Germany is therefore not subject to prior informed consent (PIC) and mutually agreed terms (MAT) within the meaning of the Convention on Biological Diversity (CBD) and the Nagoya Protocol. 

Consequently, access to genetic resources collected in situ within the national jurisdiction of the Federal Republic of Germany is generally free. It is solely subject to the general restrictions of public law and private law. Ex situ access to genetic resources via a collection located in Germany may, on the other hand, be linked to rights of the provider country where they were collected in situ.

Further information on the rights of provider countries and potential associated access and utilisation restrictions

ABS-related provisions under German public and private law

General public law stipulations that may prohibit, restrict or require approval for access to genetic resources in Germany notably include those under German nature conservation law (Federal Nature Conservation Act (BNatSchG) and nature conservation acts of the federal states (Bundesländer)), forestry legislation (forestry acts of the federal states), animal welfare legislation (see, for example, section 12 of the Animal Welfare Act (TierSchG)), and hunting and fishing law.

Access and possession are thus prohibited under nature conservation law in relation to specially protected and strictly protected animal and plant species within the meaning of section 7(2) (No 13) and (No 14) BNatSchG (see sections 44 et seq. BNatSchG). Certain activities are also prohibited and restricted in specific areas (notably in nature conservation areas and national parks; see sections 23 et seq. BNatSchG and relevant legislation of the federal states).

There may be additional restrictions under private law if resources are accessed on private land or through private collections or if they are the subject of private rights. Furthermore, intellectual property rights may apply under patent law, plant varieties law and animal breeding law (e.g. under the Forest Reproductive Material Act (FoVG) or the Seed Act (SaatG)).

A requirement for disclosure of origin has been added to the German Patent Act. Implementing the Directive 98/44/EC on the legal protection of biotechnological inventions, the German Patent Act was amended (section 34a PatG) and the Ordinance on the Deposit of Biological Material (BioMatHintV) enacted.

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