letter – Support to the waiver of some sections of the TRIPS agreement to facilitate the prevention, containment and treatment of COVID 19

Dear President Von Der Leyen,
Dear Commissioner Kyriakides,
Dear Commissioner Urpilainen,
Dear Commissioner Dombrovskis,

We are following up on our written question from the 13th of October to which you have not replied yet. In this question, we were asking you to support the waiver of some sections of the Agreement on Trade-Related Aspects of Intellectual Property Rights to facilitate the prevention, containment and treatment of COVID-19 at the TRIPS Council in October. We deeply regret that the Commission chose to oppose the initiative with a small group of WTO members during this Council. Especially, we disagree with the arguments the Commission used to oppose this waiver.

Indeed the Commission took position on behalf of the European Union, stating that “Intellectual property rights were not a barrier, but a support for the intensification of research and innovation”. This statement does not seem to take into account the evidence that restrictive licensing practices caused a shortage of supply of remdesivir and ventilator valves among other Covid-19 health goods in several European countries for instance.

Moreover, the Commission emphasized that it had made EUR 400 million available to the COVAX facility as a financial guarantee to support the purchase/procurement of future vaccines for the benefit of developing countries and that it had included in agreements with pharmaceutical companies the option to donate COVID 19 vaccines doses to low- or middleincome countries. However, it is unrealistic to assume that the financial contribution made by the EU to the COVAX facility is enough to respond to global demand. While the EU indeed pledged substantial financial contributions to the Access to COVID-19 Tools Accelerator and the COVAX Facility for the purchase of potential COVID-19 vaccines, only limited quantities of COVID-19 vaccines doses can be reserved from manufacturers because high-income countries, including EU member states, have bypassed these global mechanisms in a vaccine race to secure a vast share of global vaccine supplies at the detriment of the majority of the global population living in low-and-middle income countries. In addition, the EU exclusive agreements with pharmaceutical companies will not be enough either, as one can assume that the donation of COVID 19 vaccines will only happen after the EU countries have ensured access to the future vaccines for their citizens and that the EU will keep the most effective vaccines. It means that this system will even more delay the access of vulnerable countries to these vaccines doses without being assured that the doses will be the most effective available on the market. It will therefore make it even more difficult for these countries to counter the pandemic.

Finally, the EC argues that it consistently supports the use of flexibilities enshrined under the TRIPS agreement including the use of compulsory license and the special procedures under Article 31bis facilitating import and export of goods produced under compulsory license. But this is simply a false statement as the EU has pressured developing countries and trade partners who were either improving their national laws or making use of compulsory licenses to not do so. It is also ignoring the needs of its Member States that struggle with their own regulation on the matter after opting out of the Article 31bis and its possibility of emergency procedure.

It seems important to recall the European Commission that the proposed waiver does not overhaul the TRIPS agreement or pose a threat to the Intellectual Property system but instead leaves it intact while providing the possibility for countries to temporarily opt out of certain obligations in a global crisis. To put it simply, it would essentially show that the commitment of the Commission to find a global solution to this crisis was more than just words. By supporting this waiver, the EU would stand in solidarity with the rest of the world without applying or using the waiver itself, if Member States do not wish to.

The Commission cannot keep ignoring the voice of its citizens. Several European Heads of State have already made clear that they would support this waiver and the European Parliament clearly underlined the need to ensure equal and affordable access for all people worldwide to future COVID-19 vaccines and treatments as soon as they are available, and reaffirmed the use of the need to use TRIPS flexibilities during this pandemic. The EC position at the last TRIPS Council was not based on hard evidence and failed to protect European citizens or reflect the opinion of the European Parliament . Scientists have made it very clear, no one will be protected until everyone is protected.

We therefore call on the Commission to change its course of action and support the TRIPS waiver.

Tilly Metz
Rasmus Andresen
Margrethe Auken
Anna Cavazzini
Ville Niinistö
Jutta Paulus
Michèle Rivasi
Kim van Sparrentak