Letter from Pascal Lamy to Gopal Dabade, Director of BUKO Pharma-Kampagne

February 27, 2003

27 February 2003
IG/mc D (2003) 829

Dear Dr. Dabade,

Thank you for your letter of 13 February 2003 on the issue of TRIPS and Public health.

I fully concur with you that the disease scope of the decision on compulsory licensing for countries without manufacturing capacity should be that of the Doha Declaration. Therefore, I fear that the concerns you raise in your letter are based on a misunderstanding of the EU's position. The EU is by no means trying to limit the diseases covered by, the system. What the EU is trying to do is to propose a solution that would allow for a quick resolution of this matter.

The EU has accepted the draft agreement of 16 December 2002 in its entirety, including its scope, which is based entirely on the Doha Declaration. I regret that no consensus could be found around this text, and I cannot countenance the possibility that the TRIPS health negotiations might end in failure. I remain convinced that a multilateral solution must be found as soon as possible, and that the 16 December text remains the best basis for a deal. This is the concern underlying my 7 January proposal.

I would like to make one thing quite clear from the outset: for the EU the Doha mandate is deliberately broad in its scope and that breadth must be respected. In short, the WTO mechanism for gaining access to medicines can and must be activated whenever there is a serious public health problem. However, we must not lose sight of the political reality. The fact of the matter is that there is one WTO Member that does not trust other WTO members to use the system in good faith. This demands a neutral arbiter, which is why I have proposed to involve the WHO, whose experience in public health matters is undisputed.

This would give us an agreement offering the coverage called for in the Doha Declaration. As for the practicalities of the agreement's implementation, there would henceforth be a universally recognised presumption that AIDS, malaria and a long list of other diseases are normally covered by the agreement.

This list is not, however, exhaustive or restrictive. It is just a list of diseases which even the US has in the past admitted should be covered by the system, a list that could be applied without objections from any quarter. But the system's use would not and should not be confined to the diseases on that list. This is very important, and there must be no misunderstanding on this score.

In the event of any other serious public health problem, the implementing arrangements would be slightly different : wherever there were doubts about a measure's legitimacy, WTO members could turn to the WHO for an expert medical opinion. The possibility of obtaining an opinion (not a binding ruling) from the WHO should help dispel the US’s misgivings about the system's use by the developing countries. I must underline that this would be and advice, not an arbitrage, in full conformity with WYO [should read WHO; comment by BUKO] role to give advice to governments.

My 7 January proposal has led to further discussions in Geneva, which was one of its objectives. Discussions are continuing, and the EU is making all efforts it can to restore a climate of confidence among parties.

Finally, I have to admit that I am a little bit perplexed by the content of your letter. When I launched my proposal, I have made my intention very clear, and these intentions have been further clarified by myself and by my services at several occasions, be it in the press, the European Parliament and, last but not least, in the context of the Commission's meeting with civil society on 30 January 2003, which you attended yourself. I therefore regret that there have been continuing attempts to mislead the public on the positions taken by the EU and on the reservations underlying its action. I sincerely hope that this letter contributes to dispelling any misunderstanding that may still exist.

I am copying this letter to European Public Health Alliance, Médecins sans Frontières and Oxfam International and I will publish it on the website of the Commission's Directorate General for Trade.

Yours sincerely,
Pascal LAMY

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