Public and Parliaments kept in the dark on EU role in global COVID patent struggle

All eyes are on the European Union when it comes to one of the crucial political question of how low income countries can access COVID vaccines and treatments. In October 2020 India and South Africa tabled a proposal at the World Trade Organisation (WTO) to waive intellectual property rights, in order for COVID vaccines to be produced on a far larger scale so low income countries can get vaccinated. However, the proposal has been blocked since then by the EU, Switzerland, and other high-income countries.

But the US changing its position to now support partial suspension of intellectual property rights has given the negotiations real momentum. The EU – home of several of the vaccines – is now under tremendous pressure to follow suit. Yet leaked documents show that the EU is dishing up ‘business-as-usual’ instead.

On the 8-9 June 2021 the TRIPS Council of the WTO – which decides issues of the global intellectual property regime – will conduct a crucial meeting in Geneva, and the EU negotiators have their official position. So, what is it and how was it decided? 

The obvious place to start looking is at Council meetings – the forum for ministers from member state governments. Incredibly, if we believe official records, the issue has never been addressed by ministers in any substantial way. The TRIPS waiver does not appear in any meeting agendas, nor in Council conclusions. However, thanks to documents from a German Ministry seen by Corporate Europe Observatory, we know that this isn’t true. On 20 May 2021 EU ministers did discuss opinions on the TRIPS waiver and agreed on a way forward. They just didn’t feel they should tell anyone.

Hitherto only civil servants

The proposal now discussed in the WTO has massive international backing; it is supported by more than 100 countries, as well as prominent figures such as the Director of the World Health Organisation, former heads of state, Nobel Prize winners, and the Pope. Despite this, in the EU there has been little if any support for a patent waiver at the governmental level, in fact so little that the matter has been handled exclusively by civil servants from member states in the Council’s own Trade Policy Committee, as if it were a mere administrative issue. There, support has been massive for the ‘pharma business-as-usual’ position pushed by the Commission: no concessions on intellectual property rights.  

For months, the discussions on the waiver in that committee focused largely on proceeding with ‘care’ and with a proper communications strategy so as not to ‘harm’ the image of the EU. Substantive issues were not on the table. From early January to the end of April  2021, the issue did not attract attention. In one of the  documents seen by Corporate Europe Observatory, there are 18 pages with notes from a meeting on 16 April, where only 5 lines are dedicated to the TRIPS waiver. On 29 April, another document shows a similar meeting resulted in only 7 lines related to the TRIPS waiver out of 12 pages of minutes. Apparently, the civil servants entrusted with one of the biggest global issues of the day, saw no new developments on the horizon that would change the dormant state of affairs on that issue. In fact the analysis at the time, according to the documents written by a civil servant from a German ministry, was the complacent observation that “in the discussion on the TRIPS waiver, the US and Australia are moving closer to the sceptical EU position”. Spectacularly wrong, as two weeks later on 5 May 2021, the US President announced he would support the waiver.

_{From a vigil in San Francisco.. Health activists in the US are setting up vigils in front of German consulates across the country to denounce the EU's role in global talks on vaccine and medicines monopolies. (Photo: Citizens Trade Campaign)}

That announcement unleashed a new impetus in Europe, particularly at member state level. Two days later the Spanish Government came out in support of a waiver, and ministers from other member states followed suit, such as the Italian Foreign Minister Luigi di Maio, and the Irish Health Minister, Stephen Donnelly. According to one report, the Greek Government too supported the waiver. The French President on the other hand, was more contradictory. The day after Biden’s statement, Macron seemed to embrace the idea, turning more sceptical, only to be followed by a more positive attitude. The Polish Government’s human rights spokesperson supported the waiver in a statement. In Belgium, the social democratic Minister for International Development came out in support, only to be overruled by Liberal party ministers in the coalition Government.

Parliaments have voiced opinions too, not least the European Parliament, which adopted a resolution supporting the waiver, followed by similar resolutions from the French Senate and the Spanish Parliament.  And last but not least, shortly after Biden’s announcement, the Italian parliament voted to support the waiver for the third time.

From bottom to top of the agenda

Clearly, there is now real momentum in Europe compared to three months ago. But the crucial issue is how this is addressed by member state governments in the Council, and what they tell the European Commission. They run the show regarding the EU’s stance in the World Trade Organisation. This is where the documents about meetings between the Commission and government representation matter.

On 7 May 2021, two days after Biden’s announcement there was a Council meeting in the Trade Policy Committee, in which a Commission representative complained that the US had not consulted with the EU beforehand. They admitted that there was now a lot of pressure on the EU. It was time for the issue to be addressed at ministerial level, first at an EU summit in Porto, Portugal (at which the issue was only discussed superficially and hence not included in the conclusions), then at a meeting of the Foreign Affairs Council (Trade) on 20 May where there would be a discussion about “the line to take”, in other words the negotiating position of the EU.

For the first time, then, ministers and governments would have a debate to discuss the global issue – after months of superficial treatment in a committee for civil servants, it would now be handled at the political level. Indications would be given to the Commission on how to deal with the new situation, including whether the line followed so far would continue or not.

Secrecy at the highest level

When preparing a meeting in the Council of Ministers, the agenda has to be sent to – among others – national parliaments, and it is made available to the public on the Council website. Yet neither the agenda circulated to parliaments nor the agenda on the Council’s website has any information of such a discussion. None of the supporting documents for the meeting make any mention of the issue.

Still, the Council’s Press Office confirmed to Corporate Europe Observatory that such a discussion did indeed take place. And judging by the notes in a leaked document from a German ministry, it took as much attention at the meeting as any of the points on the official agenda (which covered WTO reform, trade policy review, EU-US trade relations). These notes make it clear that at the meeting, Commissioner Dombrovskis sought support for the sceptical line followed so far. The emphasis of the EU was to be on rolling back export restrictions on vaccines, cooperation with the current vaccine manufacturers, and on the use of existing flexibilities built into the TRIPS agreement, whilst the value of waiving intellectual property rights was to be denied, ie there was to be no change of direction on lifting patents.

According to the notes “most member states were open to talks, but with different preparedness to actually support a waiver”. France, Hungary, and Spain could all see a temporary suspension work, but there would need to be some guarantees, timewise for instance. Germany, Sweden, The Netherlands, The Czech Republic, Estonia, Ireland, Denmark, and Italy all spoke in favour of concentrating on “the actual challenges”. These challenges are not specified in the document. The only contribution from Greece – according to the notes – was a call for a better communications strategy.

France, Spain, Romania, Luxemburg, and Italy all spoke in favour of a package of initiatives not specified in the notes. This could refer to a proposal the European Commission announced the day before the meeting, a proposal that is set to be tabled at the negotiations in the WTO. The proposal is to have three main elements: measures against export restrictions, expansion of production through pledges made by current vaccine owners, and finally suggestions to make the most of existing flexibility in the TRIPS agreement. This proposal is viewed by health activists as ineffective, and more seriously, an attempt to disrupt the negotiations on the waiver. 

At the end of the meeting, the chair concluded on this point, that the EU would be “open to discuss the waiver, but a balance would have to be found between the different relevant aspects”.

Not a word in public documents

There is certainly a lot that can be debated following that exchange. But clearly the Council saw no reason why that should happen. While the public version of the conclusions from the meeting elaborate in some detail the decisions and considerations on all other topics, not a single word was given to the public, or European parliamentarians, on the crucial topic of the patent waiver discussions.

Corporate Europe Observatory asked the Council Press Office whether the position of the EU at international negotiations on the COVID strategy should not be reflected in the agenda and in the conclusions. They said the discussion was “rather general” and “not very deep”, and that the position agreed should not be considered the “final word”. While it may be the case that at a later stage the position will be changed, the EU’s stance at the upcoming TRIPS Council meeting in the aftermath of a surprising change in the US position, is no small matter to withhold.

In this case, the Council kept the public in the dark about the discussions. Should there be a discrepancy between what member states’ ministers say in public, and what their governments say in the Council, secrecy helps avoid any unpleasant scenes. And as for the public, there would be no way for the media or public interest groups to speak out against flaws in the line taken by a government or the EU, if it is accepted that everything is discussed behind closed doors. And then there are parliaments: with no transparency, the Italian Parliament will not be bothered by the gulf between what a majority decides in chambers and what the Italian Government does at the EU level. Secrecy means avoiding democratic accountability, which is clearly unacceptable.

Favour not returned

And then there is the European Parliament.  While the Council’s Trade Policy Committee has been keen on following the European Parliament’s every step on this matter – through detailed reports discussed between member state representatives – the favour is not returned: MEPs are to be kept in the dark about the EU approach to negotiations, which they are supposed to be a party to.

The Council’s TRIPS waiver secrecy is a stark reminder of the need for sweeping reform of how EU governments take their decisions. Governments might find the secretive ‘black box’ approach convenient (see box), but from a democratic viewpoint it’s scandalous. That is why Corporate Europe Observatory filed a complaint to the Council's Secretary-General. In a letter dated 14 July, the reply came in with a small concession: "In view of the particular political attention accorded to the issue of a possible TRIPS waiver at this particular moment, I would agree with you, however, that a

mention could usefully have been made in the Outcome of the Council meeting. We will bear this in mind if a similar situation arises in the future."

While this concession is appreciated, it does not meet the standards we should be asking for: it was clear before the meeting, that the ministers would discuss the matter in some depth for the first time, and as a consequence it would need to be on the agenda. Furthermore, "a mention" of the discussion would not suffice either. An exchange on one of the most pressing issues globally took place at the meeting, and the meeting ended with a political conclusion. Giving what could amount to a hint to what was discussed does not suffice.

EU citizens deserve transparency and democratic accountability; the eyes of many around the world are currently on the EU and the position it will take on availability of COVID-19 treatments and vaccines. The avoidance of transparency on the discussions around this issue appear self-serving at best, and inexcusable in the middle of still-raging pandemic.

Take action: the ‘Right to Cure' campaign has launched a European Citizens' Initiative calling upon the EU to "make anti-pandemic vaccines and treatments a global public good, freely accessible to everyone". The campaign is collecting one million signatures in EU member states, encouraging the European Commission to implement this crucial demand. Sign the initiative here: https://noprofitonpandemic.eu/