Policy recommendations

  • In its trade and industrial policies, the EU should take account of its development and public health commitments. Possible impact on developing countries of actions in the trade and industry domains should be assessed thoroughly and impact studies of civil society should be taken into account in a serious manner. The current belief in IPR as a ‘tool for development’ and the policy coherence in this field’ should be reassessed objectively and discussed with civil society in a transparent manner.
  • The European Union should refrain from pursuing the inclusion of TRIPS+, WTO+ and even EU+ provisions designed to protect intellectual property rights in any bilateral or multilateral trade agreements with developing countries (including those not defined as LDCs).
  • The EU should not limit, and instead encourage, the efforts of developing countries to use (TRIPS) flexibilities as a public health strategy. In addition it should lobby for the compulsory licence for developing countries without production facilities to be made valid for all similar countries at once (including non-LDC developing countries) and (considering the limits) for other initiatives to be developed, such as patent pools. The EU should actively stand up to European pharmaceutical companies that try to limit the use of compulsory licensing in developing countries.
  • The EU should ensure its interests in enforcement and developments in ACTA will not hamper trade in generic medicine or lead to any more seizures of these. In particular it should not demand adoption of current EU or EU+ enforcement rules, such as border measures, to be introduced in developing countries. 
  • The European Parliament should adopt a Resolution on these recommendations with a view to affirming the EC’s commitments to Health and Development, as well as demand  its right of access to all negotiation documents (such as ACTA) and the use of co-decision power to prevent the EU from pursuing agreements that can damage public health.

 

Case: TRIPS & Access to Medicines

25-06-2009 Seizure of generic medicines: problem solved? Not by far!

Earlier this year, in March, we reported on this website about questions asked by MEPs David Martin (PSE) and Corien Wortmann-Kool (EPP-DE) regarding the seizure of generic medicines, produced in India and on their way to Brazil and Nigeria, in the Netherlands. Seizing or even delaying the transhipment of medicines like these are harmful for people in developing countries, as their access to essential generic and thus cheaper medicines is severely hampered. This is an update on the current situation regarding the seizing of medicines in Europe. Problem solved, as the Commission said? Probably not.

The European Commission, in a reaction to the outcry from developing countries, civil society organisations and other actors, stated that such an incident did not suffice to prove that the Council regulation, the legal basis for the seizures of the shipments, harms developing countries. However, since then it became known that in 2008 only, Dutch customs authorities seized 17 shipments of generic medicines. And very recently, on May 5th, a shipment of antibiotics destined for developing country Vanuatu in the Pacific, was intercepted in Frankfurt. This shows that this is not a matter of simple incident, but a structural problem. Moreover, it is clearly a European problem and not just a Dutch problem.

As an answer to David Martins question in March 2009, the Commission claimed that de Dutch authorities were fully in line with EC Regulation 1383/2003, which permits custom authorities to detain goods suspected of infringing certain intellectual property rights. The Commission also mentioned that it is not convinced that the incident mentioned in the Honourable Member's question justifies in itself a review of a legal mechanism that has been in place for several years without problems and that, on the contrary, has fulfilled its role of reducing the global traffic of counterfeits.[1] After it became known that this in fact was not an incident, and after several developing countries and NGOs drew attention to the problem at hand, the Commission became more cautious. This is reflected clearly in the answer to Corien Wortmann-Kools question regarding the same matter a month later, in April. The answer ends as follows: We will look further into this particular case in the Netherlands, and into any other case that may be reported, and see whether any conclusion should be drawn.[2] This suggests that the Commission takes the worries of several actors seriously, and that investigation and possible action to prevent such seizures in the future will be made.

However, very recently, there was yet another seizure of a cargo of medicines. A little over than 3 million pills of Amoxicillin that were made in India and headed for the Republic of Vanuatu, were intercepted in Frankfurt on the suspicion of trademark infringement. Since this specific good is ntot protected under any patent anymore, the seizure was totally out of order. This, in our view, clearly shows that the Commission, despite showing an awareness of the true nature of the problem, is not undertaking any actions against these seizures yet.

Both Brazil and India expressed their concerns about this recent development and mentioned the lack of action of the European Commission during the last TRIPS Council earlier this month. "Going by EC's intervention at the last TRIPS Council meeting, confirming their commitment to the Doha Declaration on Public Health, we thought that the matter will get the attention it deserves and get resolved. Regrettably, this has not happened and we are compelled to raise the issue in this meeting." Seeing as India and Brazil also raised the issue of seizing generic medicines during a TRIPS Council in March, they are of course compelled to notice that the Commission did not keep its promises.    

Seeing the many recent press releases and news items, NGOs and other civil society actors have not let the matter drop yet either.[3][4] The access to essential and affordable medicines in developing countries has been subject to heated debate in Dutch newspapers these last few days[5] and Dutch Minister for Development Cooperation Koenders expressed his concerns about the negative consequences for people in developing countries the EU Regulation might have.[6] 

Fair Politics EU urges the Commission to take these concerns and allegations seriously and maybe even more important live up to its own aspirations to promote better health care and access to medicines in developing countries. EC Regulations that interfere with these goals on a regular basis are clearly incoherent with these goals, and should therefore be reconsidered and changed. We believe that this is clearly a case where review of the regulation in place is necessary.

 

Notes
[1] Debate in EP on 12 March in Strasbourg. To be found on: http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20090312&secondRef=ANN-01&language=EN&detail=H-2009-0110&query=QUESTION

[2] Answer to parliamentary question E-1082/2009. To be found on: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2009-1082&language=EN

[3] Third World Network, Concerns voiced at TRIPS Council over seizure of drugs. To be found on: http://www.twnside.org.sg/title2/health.info/2009/twnhealthinfo20090602.htm

[4] Press release by HAI Europe and others. To be found on: http://www.haiweb.org/19062009/5 Jun 2009 Press release Seizure of generic medicines in Frankfurt.pdf

[5] Volkskrant 18 June 2009, Medicijnen te laat in ontwikkelinglanden. To eb found on: http://www.volkskrant.nl/economie/article1245720.ece/Medicijnen_te_laat_in_ontwikkelingslanden#2**

[6] NRC.nl 19 June 2009, Koenders: Geen medicijnen naar Afrika onderscheppen. To be found on: http://www.nrc.nl/binnenland/article2277170.ece/Koenders_geen_medicijnen_naar_Afrika_onderscheppen