01 Mar 2022

Future-proofing pandemics

Analysing the EU’s proposal to clarify and simplify the compulsory licensing procedure

Weinian Hu

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The ‘TRIPS waiver’ proposal, first submitted by India and South Africa to the WTO TRIPS Council in October 2020, has resulted in diametrically split positions amongst WTO members. But the EU has chosen a middle way. Its three-fold response seeks to provide answers to the concerns raised by the proposal that developing countries may face ‘institutional and legal difficulties’ when using the policy flexibilities provided by the TRIPS Agreement. Thus, the EU wishes to clarify and simplify the authorisation procedure of compulsory licensing, a policy flexibility that could provide affordable generic versions of patented pharmaceutical products. However, an onerous procedure is a long-heard complaint against compulsory licencing.

Consequently, the EU’s response is more focused on improving the administrative procedure of compulsory licensing rather than on responding directly to the Covid-19 pandemic. Thus, the effect of the EU’s response to the proposed waiver agreement on the wider battle against the pandemic will be limited, not least because since the beginning of the outbreak, the international community had already rallied itself to combat Covid-19. A recent case in point is that, in February 2022, six African countries received the technology needed to produce mRNA vaccines on the continent. After all, there is no proof that the TRIPS Agreement has undermined efforts in technology transfer, pharmaceutical manufacturing, etc. as the ‘TRIPS waiver’ proposal suggests.

Overall, this CEPS Policy Insights paper finds that the EU’s proposed solutions have shifted the focus from Covid-19 vaccines supply to the compulsory licensing procedure. Thus, the merit of the ‘TRIPS waiver’ proposal is no longer about taking moral decisions but rather it’s about technical aspects. The real impact of the EU’s response will most likely benefit future users of compulsory licensing, especially when the next pandemic strikes, whenever that may be.