E-drug: Health TRIPS Issues group
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On Monday 28 June the European Commission DG Trade held a special meeting
of the health and trips issues group on the preparations for the TRIPS
Council on health in June. I attach below the text of the MSF briefing
document prepared for this meeting. For details on the MSF Campaign see:
www.accessmed-msf.org.
The following NGOS were present: Act Up Paris, OXFAM, Essential Drugs
Project, Voluntary Sevices Oversees (VSO), WEMOS Foundation, Africa -
Europe Faith and Justice Network, M�decins Sans Fronti�res (MSF). There was
only one pharmaceutical company present GlaxoSmithKline. European
Federation of Pharmaceutical Manufacturers EFPIA was there for part of the
meeting. The generic industry was not represented.
The lack of interest from the drug company side was surprising since most
comapnies have always been well represented at these meetings in the past.
Some explained this because it was a bank holiday in the UK others thought
it was more likely linked to the fact that there is increasing pressure to
make the tiered pricing system a reality. Now we move from talk to action
enthusiasm fails?
Commissioner Nielson in a recent speech made it clear that "the global fund
cannot succeed and will not get our support without a commitment by
industry to a global tiered pricing system". GSK and EFPIA objected at the
meeting to the use of the term "system". GSK stated that tiered pricing is
something companies need to set.
Oxfam stressed that what companies are doing now is not a tiered pricing
system and proposed a high level meeting. NGOs also asked the Commission to
study the existing mechanisms such as packaging and labelling regulatory
measures to deal with the industry's fear of reimportation of low prices
medicines.
The main part of the meeting was devoted to the preparations of the
upcoming TRIPS Council on health.
DG Trade is in the process of preparing for the TRIPS Council on health.
This is part of the Plan for Action on infectious diseases. The European
Union's General Affairs Council has adopted a resolution endorsing the
Action plan. In this resolution the Council asks the Commission to report
on what needs to be done to ensure consistency between the TRIPS Agreement
and health concerns, which gives the Commission the possibility to monitor
the effects of TRIPS implementation on health. All of this is definetely
encouraging and comparing the Commissions statements with their position a
year ago a lot of progress has been made.
Representatives of DG Trade gave the following overview on TRIPS Council
preparations:
- Commission supports a debate concerning the interpretation of the
Agreement recognizing the balance between the interests of consumers and
the right holders. At the TRIPS Council the Commission wants to get down to
the technical level and not stay with general statements. Commission will
restate believe in IPR stimulus for innovation ( I always find these
religioius terms that are used in relation to IPR amusing. A similar
statement was made by the representative of the German Association for
Industrial property and copyright who stated the association believed in
IPR and defended it as a human right! EtH)
- Using article 31 for public health reasons. WTO members are free to
determine the grounds for issuing a compulsory license. Article 7 and 8 are
important for the interpretation of the provisions of the TRIPS. Article 7
refers to the objectives of the agreement and 8 to the principles including
the protection of public health. The Commission considers procedural
safeguards important but referred to the flexibility (meaning no need to
consult the patent holder) in cases of emergency and/or public
non-commercial use.
- The Commission is willing to discuss a permissive reading of the TRIPS
that would allow compulsory licensing for export to enable countries with
no production capacity to make use of the art. 31 provisions. The
Commission does not support the proposals NGOs made to use article 31 k to
overcome this problem. Under article 31k -compulsory licensing to remedy
anticompetitive practices - the requirement that the production is
"predominantly for the supply of the domestic market" is waived under
article 31k. See also:
http://www.cptech.org/ip/health/cl/recommendedstatepractice.html
See for the full text of the TRIPS:
http://www.wto.org/english/docs_e/legal_e/27-trips.wpf
- The Commission considers that Article 30 exceptions to patent rights can
be made and should be read in the light of article 7 and 8. So this would
mean that exceptions for public health reasons are allowed. The Commission
referred specifically to research. And stressed that article 30 cannot be
used to allow substantial or unjustified curtailment of patent rights.