How Germany's new coalition could change the fate of the TRIPs waiver

Since South Africa and India proposed a temporary waiver on the intellectual property shielding COVID-19 vaccines and other interventions more than a year ago at the World Trade Organization, they have acquired broad — and sometimes unexpected — support.

Germany remains a steadfast opponent though. And while other nations such as the United Kingdom and Switzerland have also maintained their opposition, Germany’s hostility to the proposal carries outsized weight.

“The German government until today has been really harsh in rejecting this,” Jörg Schaaber, from the civil society group BUKO Pharma-Kampagne, told Devex. “That has a significant influence on the EU position.” Observers said Germany’s stance helps explain why the European Commission remains opposed to the waiver despite a June vote by the European Parliament to start discussions on the Indian and South African proposal.

Instead, European officials are pushing an alternative proposal that critics say offers little recourse to countries beyond what is already available to them under the WTO’s Agreement on Trade-Related Intellectual Property Rights, or TRIPS, and will do little to remedy persistent vaccine inequities.

But a new German government has the potential to upend those discussions.

Following federal elections in September, Germany is on the cusp of a new coalition government that will exclude outgoing Chancellor Angela Merkel’s Christian Democratic Union, the party that leads the current government and remains a persistent opponent of the waiver.

Both supporters and opponents of the waiver are now trying to influence the outcome of ongoing coalition negotiations among the Social Democrats, the Greens, and the Free Democratic Party, ahead of a coalition agreement that could be announced as early as this week.

Prominent members of the left-center SPD, which is set to lead the coalition, have publicly backed the waiver. But the SPD only won just over a quarter of the vote, forcing the party to attempt to broker an unprecedented — and potentially unwieldy — three-party government. While the classically liberal FDP is the smallest member of that potential coalition, with less than 11% of October’s vote, waiver supporters suspect the party’s determined opposition to the proposal could have outsized influence on the position the coalition ultimately adopts.

“One could think that the Social Democrats and Greens, it’s clear that they were in favor of the WTO waiver and will stick to this opinion, but it’s unclear whether it will be bargained away against other commitments,” Schaaber said.

Advocates from both sides of the debate are putting significant pressure on the potential coalition partners, but the talks are a black box and the impact of that politicking won’t be clear until the coalition agreement is released.

As global support for the TRIPS waiver gathered over the past year, Germany’s government has countered with concerns about the effect on the pharmaceutical industry — including smaller, high-risk companies like BioNTech, which developed one of the successful messenger RNA COVID-19 vaccines.

“There is a worry that the waiver would be detrimental to future investments in biotech companies, especially smaller, high-risk venture capital going into these companies,” said Frederik Roeder, the managing director of the Consumer Choice Center, an advocacy group looking to ease regulations.

Earlier this year he testified at a hearing in the Bundestag’s health committee on a broad proposal from the far-left Die Linke party, outlining steps the German government could take to encourage global vaccine production — including support for the TRIPS waiver. The measure ultimately failed.

“My advice to policymakers was that IP is not the biggest problem when it comes to the global rollout of the vaccines,” Roeder said. “The energy put into [the TRIPS waiver] is a poor allocation of political resources.”

It is a position Merkel’s CDU shares. Outgoing Health Minister Jens Spahn, who hails from the CDU, has consistently tried to direct attention away from the TRIPS waiver and toward initiatives by companies to voluntarily transfer technology and licenses to other manufacturing facilities, while ultimately retaining control over the intellectual property.

The SPD, the junior partner in the grand coalition that has governed Germany for the past eight years, has not pushed hard against the CDU’s position. Still, the waiver has won support within the highest ranks of the party. After President Joe Biden reversed United States opposition to the waiver in May, Bärbel Bas, an SPD member of Germany’s Bundestag, issued a statement in solidarity and also insisted, “a temporary relaxation of patent law offers the opportunity to quickly expand production capacities worldwide.” Bas was elected president of the Bundestag following the October vote.

The Greens have offered a similarly muddled position, hanging potential support for the TRIPS waiver on the failure of other initiatives to ensure equitable access to COVID-19 vaccines and other treatments and equipment. In a final statement before the election, they called for medicines and vaccines to be affordable and accessible in all countries, and patent laws to be accordingly flexible.

It is the FDP that has held the clearest and most consistent position: Intellectual property must be protected by patent laws.

“Whether it will be the tail wagging the dog, we don’t really know what will come out of the talks,” Schaaber said. He also testified at the April committee meeting in the Bundestag and said it was “shocking how strong the influence of industry there was.”

A new Bundestag and new government have the potential to alter that relationship and support for the TRIPS waiver would be an early indication that they intend to. And a reversal in Germany’s position would likely upend discussions within the WTO, where parties are struggling to chart a compromise between South Africa and India’s proposal and the one backed by Europe.

There are already early indications that the FDP’s position — and thus the current status quo — may have prevailed. An unconfirmed list of potential cabinet appointments circulating in the German media over the weekend gives FDP control of the health ministry. But observers on both sides of the debate warn against jumping to any conclusions before the final agreement is released.