19th October 2005

Commissioner Mandelson
EUROPEAN COMMISSION
DG Trade
200 rue de la Loi
B-1049 BRUSSELS

Dear Commissioner Mandelson

TRIPS Agreement and Avain Influenza

We ask the European Commission correct its trade policy in order to address a self-inflicted and dangerous vulnerability to the public’s health, including but not limited to risks associated with an outbreak of bird flu.

On August 30, 2003, the World Trade Organization (WTO) adopted a limited waiver of a provision of the TRIPS Agreement on intellectual property rights, in order to permit the manufacture of a medicine under a compulsory licence for export to another country.

As you know, the 30 August 2003 decision is quite complex and controversial, particularly on the grounds that it invites bureaucratic delays, increases uncertainly, imposes costly obligations in importing countries, undermines economic incentives for generic entry and runs contrary to principles of free trade and non-discrimination, by allowing some countries to “opt out” of using the mechanism to import medicines. It is this last feature of the 30 August 2003 decision that is particularly indefensible, and today presents a risk to the public health of millions of Europeans.

Largely due to pressure from the EC and the US government, 23 high- income countries made a declaration they would never use the 30 August 2003 mechanism to import medicines under any circumstances, including cases involving national emergencies. These 23 countries include 15 members of the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, United Kingdom) and 8 countries with close links to Europe (Australia, Canada, Iceland, Japan, New Zealand, Norway, Switzerland, and United States of America).

As a consequence of this decision, hundreds of millions of Europeans are legally constrained from obtaining generic copies of medicines that may be needed in the event of a pandemic outbreak of bird flu or another infectious disease. We are anxious to meet with you and your cabinet and consumer and public health groups that share our concerns in order to discuss why so many member states of the European Union should be legally barred from importing medicines under this provision, and also if your office or any other branch of the Commission has done any analysis whatsoever of the possible downside of this decision. We would like to discuss this before the WTO meets in December to consider a permanent amendment to the TRIPS agreement on this topic.

Prior to the WTO meeting in Hong Kong, in order to safeguard the EU's flexibility in dealing with a potential bird flu pandemic we call on you, together with Commissioner Kyprianou, as Commissioner with responsibility for Public Health, to request that the relevant Members States notify the WTO that Member States of the European Community now consider themselves eligible to import generic medicines under the 30 August 2003 WTO decision. We attach a copy of the letter we have sent to Commissioner Kyprianou today.

Thank your for your consideration of this request. I will be in contact with your office to arrange a meeting.

Yours Sincerely

Michelle Childs
Head of European Affairs
Cc Commissioner Kyprianou