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    • COVID-19

    Europe still can't get on board with the TRIPS waiver

    Though the U.S. partially reversed its opposition to waiving intellectual property rules for COVID-19 vaccines and treatments, Europe is still firmly against what many see as a necessity for vaccine equity.

    By Andrew Green // 31 May 2021
    European Commission President Ursula von der Leyen and German Chancellor Angela Merkel. Photo by: Etienne Ansotte / European Union

    In May 2020, the European Commission held a global conference to fundraise for nascent COVID-19 vaccine development efforts. Though the United States under then-President Donald Trump’s administration snubbed the pledging event, the organizers managed to raise more than $8 billion, as global leaders and donors took turns announcing their contributions.

    During his pledge, French President Emmanuel Macron used the opportunity to emphasize that any COVID-19 vaccine would be considered a “global public property” with access available to “the whole of the planet.”

    A lot has changed in a year.

    The same European leaders who rallied those early funding efforts behind a promise of global solidarity are now the main obstruction to a waiver of the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS. The proposal is supported by much of the global south — partially backed by U.S. President Joe Biden’s administration, which reversed its position earlier this month — as the best way to ensure equitable vaccine access.

    European leaders such as Macron and German Chancellor Angela Merkel “were saying no one would own the vaccine, making promises, including on the sharing of know-how and the sharing of vaccines,” said Ellen ‘t Hoen, director at Medicines Law & Policy, which organizes analysis and policy recommendations to support access to medicines. Though they’re now in a position to push forward negotiations, “all of that has gone out the window,” she said.

    European skeptics have rallied around a framing of the waiver as a “false good idea” that will not quickly relieve the global COVID-19 vaccine imbalance, which has so far resulted in just 10 countries administering more than 75% of all doses.

    “If it [the revised TRIPS waiver proposal] was intended to convince some of the skeptics, I’m not sure it went far enough.”

    — Jaume Vidal, senior policy adviser, Health Action International

    Instead, the leaders of the European Commission, the EU’s executive branch, are pushing a package of interventions, including limiting export restrictions, improving vaccine manufacturing in the global south, and issuing voluntary licenses that would allow specific manufacturers to avoid intellectual property restrictions, without instituting a universal waiver.

    While maintaining that she is open to discussing a waiver, European Commission President Ursula von der Leyen said in the wake of the Biden administration’s reversal that “we should ... not lose sight of the main urgencies now, which is ramping up indeed the vaccine production as quickly as possible, and ensuring that vaccines are fairly and evenly distributed.”

    Jaume Vidal, a senior policy adviser at the Amsterdam-based Health Action International, says this ignores the fact that these options have been available since the outset of the pandemic and yet the distribution imbalance persists.

    “It’s just being disingenuous,” he said, pointing to the COVID-19 Technology Access Pool, which was established at the start of the pandemic to facilitate the voluntary sharing of intellectual property and knowledge in a bid to increase production of vaccines and therapeutics. In the year since it was created, no company has made use of it.

    Access advocates are trying to maintain focus on the waiver proposal as critical to overhauling a system they say prioritizes intellectual property over people’s health. And as Europe has become the new battleground for that debate, they are accelerating efforts to overcome the opposition of key continental leaders. That includes championing a vote in the European Parliament that could come as early as June 7 on a resolution in support of the proposal.

    This would build on a successful effort earlier this month to insert language supporting the TRIPS waiver into a resolution to tackle the AIDS epidemic, which the Parliament adopted on May 20.

    The upcoming “vote is really important for those of us who have been pushing and lobbying for a TRIPS waiver,” Vidal said. “It feels like we are building momentum. We are not afraid to put this momentum to the test.”

    That vote would come alongside the next Council for TRIPS meeting at WTO scheduled to begin June 8, when the waiver proposal is set to be discussed. While it may not force European Commission officials that represent the EU at the world trade body to drop their opposition to the waiver, they “may lay down a bit,” Vidal said.

    At the same time, activists are trying to convince leaders within countries that have been supportive of the waiver to challenge the commission’s opposition in the European Council. A commission in Spain’s lower house of Parliament backed a call to support the proposal, and Italian leaders have also voiced support.

    Following the U.S. announcement, Merkel — who runs Europe’s largest economy — said, “The protection of intellectual property is a source of innovation and it must remain so in the future.”

    That the Biden administration’s shift did not have more of an influence on some key U.S. allies in Europe is not a shock to Tahir Amin, co-executive director at the Initiative for Medicines, Access & Knowledge. While the reversal was framed as a surprise, there is “no way that the U.S. did not discuss that they were going to support a waiver prior to announcing it with the countries that want to maintain the IP status quo,” he said.

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    At the same time, the United States moved to limit the terms of the proposal, which was put forward by South Africa and India, by restricting negotiations to just vaccines — setting aside demands for a waiver that could also apply to therapeutics, diagnostics, and other materials. Knowing Europe, Japan, and others could maintain their opposition, this allows Washington to function as the “good cop,” Amin said, while scaling back the scope of the discussion.

    “It’s a tactic to really keep things narrow and restricted,” he said. “It would mean the sponsors of the waiver proposal have to really battle all these different components.”

    This comes even as South Africa, India, and dozens of other countries submitted a revised proposal on May 21 responding to specific concerns from waiver skeptics about the scope of the original proposition.

    The new proposal stated that the waiver would apply only to “health products and technologies” aimed specifically at COVID-19 prevention, treatment, and containment. The clarification was designed to respond to concerns raised by groups such as the American Action Forum, a conservative think tank, that “a foreign company could produce a specific drug under the auspices of COVID-19 but sell it for another disease.”

    At the same time, the text pushes back against U.S. efforts to limit the scope of discussion to vaccines.

    The lack of an expiration date on the waiver had also alarmed its opponents, and the new revision added some clarity to the suggested timeline. The new proposal guarantees the waiver for at least three years, after which the WTO General Council could decide whether to extend it.

    “They answered the most salient doubts about the duration and the scope, but I think the idea was to show they were willing to engage,” Vidal said. “If it was intended to convince some of the skeptics, I’m not sure it went far enough.”

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    About the author

    • Andrew Green

      Andrew Green@_andrew_green

      Andrew Green, a 2025 Alicia Patterson Fellow, works as a contributing reporter for Devex from Berlin.

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