India, South Africa, the USA and the EU have agreed on a compromise proposal for the TRIPS waiver. In this article, you can find out exactly what the TRIPS agreement is and what the position of the Green Group in the European Parliament is.
The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) was adopted in 1994 as part of the Uruguay Round of GATT negotiations (General Agreement on Tariffs and Trade). The TRIPs Agreement was created at that time to ensure the design of intellectual property rights and their enforceability in the member countries of the World Trade Organization (WTO). The goal of the agreement is to protect intellectual property without placing barriers on legitimate trade. However, the agreement does not create a uniform international substantive law, but is based on the principle of territoriality, which means that the TRIPS Agreement only creates a minimum standard of protection with regard to the granting and enforcement of intellectual property rights, to which the member states must adhere and which also applies in each case only in the member state itself. In addition, the rules from the TRIPS Agreement must be implemented in national laws in order to apply at all.
Pandemic and the vaccine kept under lock and key
A vaccine falls under the scope of the TRIPS Agreement or the national law of the member states because it is intellectual property and a patent has been issued. However, this also ensures that certain medicines are kept under lock and key and are accessible to fewer people. For this reason, India and South Africa joined forces back in October 2020 to call for a waiver. In the meantime, more than 100 countries have joined, and the European Parliament also supported this demand with a resolution adopted last summer. Resolution. The aim is to obtain an exemption in the TRIPS Agreement for the Covid 19 vaccine and other medical products and technologies for pandemic control. At present, the situation is such that worldwide only 10 states 75% of the vaccine produced. have kept for themselves. 17 months after the proposal for a waiver, in March 2022, the EU, USA, India and South Africa (the "Quad") agreed on a possible compromise, which has now also been published. The preliminary text of the law in its current form, however, does not even come close to the waiver originally proposed.
Our criticism and position
We Greens in the European Parliament welcome in principle that progress has been made in drafting a waiver, but we still have considerable points to criticize about the text. It is too narrow, has significant limitations and will probably ultimately provide less legal certainty due to ambiguous interpretations. In addition, we fear that the text as currently drafted will set a negative precedent for future global health crises.
Our main criticisms of the current version:
1. the text makes the interpretation of the TRIPS Agreement time-bound, applicable only to Covid-19 vaccines, and applicable only to certain WTO member states that classify themselves as "developing" countries
2. therapeutics and diagnostics are not affected by the patent suspension
3. the problematic eligibility criteria and the total disregard of the situation of importing countries may exclude many low- and middle-income countries from the production, supply, export and import of vaccines and legitimize division and exclusion, limiting access for all people
4. existing TRIPS flexibilities may be undermined and restricted, and additional previously non-existent "TRIPS+" requirements may also be introduced
On May 10, at the last General Council Meeting WTO members agreed that the preliminary legislative text, which emerged from the informal process with the "Quad" (U.S., EU, India and South Africa), opens the prospect of negotiations on a response on intellectual property and COVID-19 vaccines. Members welcomed the proposal as a positive development. However, for reasons mentioned above, we as the Green Group in the EU Parliament are skeptical about the developments. In addition, we fear renewed difficulties and material for negotiations if new variants of Covid-19 emerge. It is unclear what the further steps within the WTO will be, but the final text usually has to be adopted by the WTO Council by consensus (but at least ¾ majority) before it can enter into force. In this context, as Green MEPs, we call for the EU to support the granting of a temporary waiver from certain provisions of the TRIPS Agreement for COVID-19 to improve timely global access to affordable COVID-19 vaccines, therapeutics and diagnostics by addressing global production constraints and supply shortages.