Karl De Gucht writes Andris Piebalgs on topic of European Union IPR demands on India and other developing countries

KEI has received a copy of a May 16, 2011 letter from Karl De Gucht to Andris Piebalgs, which discusses (1) the EU-India FTA, and (2) Relations between IPR and development policies.

Andris Piebalgs

Piebalgs, as EU Commissioner for Development, had asked De Gucht, the EU Commissioner for Trade, to create a more formal process to take into consideration the impact of the trade agreements on development and other areas of EU policy. De Gucht’s letter says this type of coordination and consultation is “already addressed to a large extent in the context of the preparation of our Communication on a revised IPR strategy vis-a-vis third countries . . . namely through the setting-up of a broad inter-service group in which DG DEVOC is also participating. . . ” De Gucht pretty much blows off the proposal by Piegalgs, but does promise to “continue to hold regular meetings with other services concerned . . . ”

In the discussion on the EU/India FTA, De Gucht says:

Karl De Gucht

“As regards data exclusivity in particular, you know that India’s legislation at present does not provide for data exclusivity. A domestic debate in ongoing whether to introduce data exclusivity in India, but given the sensitivity surrounding this issue, it appears unlikely that India will have introduced such a system by the time of concluding the FTA. This means that in the context of this FTA, we will only ask India that any data exclusivity regime to be introduced by India should be applied in a non-discriminatory manner and satisfy the requirements of the TRIPS Agreement.

“Having said this, we continue to believe that access to medicines and protection of test data can and should coexist constructively through instruments such as compulsory licenses or exceptions for public health needs. Further dialogue by all interested stakeholders should help to develop a common understanding on this matter. And we would certainly welcome any views from DG DEVCO as to how these two objectives can be achieved in a complementary manner.

De Gucht continues to discuss the broader relationship between IPR and development policies. In discussing technical assistance, De Gucht makes a telling comment in saying:

“The role of international institutions such as WIPO should be certainly considered in this perspective, although the crisis which WIPO has had to face in recent years has been somewhat detrimental to its effectiveness.”

De Gucht also comments of the issue to a TRIPS waiver forthe Least Developed Countries (LDCs), which he appears to oppose, in the absence of some quid pro quo.

“I am aware that the UK has called for an extension of the TRIPS waivers for LDC’s (2013/2016). A possible extension of these waivers merits some reflection may have some benefits, but we believe that it is too early for the Commission to openly take a position at this moment in time, considering in particular the on-going DDA negotiations. Moreover, I am not in favor of a one-sided statement at the LDC-IV, or any other conference, as this would entail no benefits for the EU/Commission, other than the announcement itself.

In closing, De Gucht makes the assertion that DG-Trade does not oppose the use of TRIPS flexibilities in developing countries:

“Finally, I confirm that we have never opposed and shall never oppose the use of TRIPs flexibilities by any developing country. Regarding the EU-India FTA, in particular, we have proposed an explicitly reference to the Doha Declaration on the TRIPS Agreement and Public Health, to clarify that the flexibilities granted by the TRIPs Agreement, especially as regards patents on medicines, will not be affected by the FTA.

De Gucht’s statement about not putting pressure on developing countries as regards to the use of TRIPS flexibilities is untrue. As just one example, I am attaching a copy of a July 10, 2007 letter from Peter Mandelson to the Thailand government, in connection with the grant of compulsory licenses on patents on Plavix. Most of the EU communications to developing countries on compulsory licenses are secret, but some interventions are available.