[Ip-health] AIDES and Act Up-Paris call for clarification of the EC's position regarding compulsory licensing in Thailand

[Jérôme Martin]

On July 18th 2007, the European Commisoner for Trade wrote a letter to the
governement of Thailand to criticize its access to medicines policy through
compulsory licenses. After being put to pressure by the US drug giant Abbott
Laboratories, Thailand now has to face the pressure of the European Union.

The Trade Commissioner's letter effects a sharp rewrite of actual
international law provisions on access to generic medicines, and expresses
threats against Thailand - all in the interest of the patent-based
pharmaceutical industry, and in complete disregard for the human
consequences of hampering access to affordable lifesaving medication.

AIDES and Act Up-Paris have written to the Trade Commissioner and asked him
for clarifications. You will find below this letter.

Best

Miss Heat Stable / Jerome Martin
Act Up-Paris
----------------------------------------------------------------------------------

Paris, august the 22th


Object: To call for a clarification of the European Commission’s
position regarding compulsory licensing in Thailand.

Reference: Letter by Commissioner P. Mandelson to the Thai Government on
July, 18th, 2007.




Sir,


As French organizations of people living with AIDS, or people concerned
by it, who advocate for universal access to HIV/AIDS treatments, we have
consistently supported the positions of the Thai Network of Positive
People (TNP+). In recent years, TNP+ has urged the Thai government to
authorize the production of generic versions for all medications
(including Antiretrovirals) which might be needed by AIDS patients.
TNP+’s claims were finally heard on the eve of 2007, when the Thai
government issued compulsory licenses for three drugs, two
antiretroviral and an antithrombotic.

It is thus that we are extremely shocked by the letter you sent to the
Thai government on July, 18th. In this letter, you called into question
the Thai government’s health policy with respects to compulsory
licensing, a measure aimed at offering broader access to generic
medicines. The position you have decided to endorse is clearly
contradictory to that of the European Commission on this crucial topic.

You wrote: « Neither the TRIPS Agreement nor the Doha Declaration appear
to justify a systematic policy of applying compulsory licenses wherever
medicines exceed certain prices. » This is in complete contradiction
with the TRIPS agreement, which claims that “Each member has the right
to grant compulsory licenses and the freedom to determine the grounds
upon which such licenses are granted”.

May we also remind you that the internal law of the European Union makes
it clear that excessive pricing is an explicit reason for State members
to issue compulsory licenses when public health is of concern. (See, for
instance, the L613-16 of the French Law Code on Intellectual Property,
which reads “Patents can be placed under the regime of Compulsory
Licenses by State as soon as the product they protect is delivered
either with a quality or a quantity that is insufficient, or that the
pricing is abnormally high”). Hence, your recent remarks to the Thai
government have no legitimate legal basis. By making the statements that
you have made, you give the impression that you are rewriting the
international law in the interest of the brand pharmaceutical industry,
regardless of the consequences this has on the patients.

You further encouraged Thailand to negotiate with the pharmaceutical
companies that own the patents. Nothing in the TRIPS agreement nor in
the Doha Statement, makes it compulsory for a government to act this way
in case of a major health crisis. Once again, it seems that you want to
rewrite the international law. In addition to that, your remarks appear
even less justified when we go into the detail of your argumentation.
May we remind you that the Thai government negotiated during two years
with the drug companies before it resorted to the compulsory licenses,
even though it had no obligation to do so?

You also wrote that the decision of the Thai government « risks forcing
more drug companies to abandon their patents and could lead to the
isolation of Thaïland from the global biotechnology investment community
». This sounds like a veiled threat. Albeit a legal decision, the
American drug company Abbott decided in February to deprive Thai
patients from any therapeutic innovation as a mean of retaliation
against issuance by the Thai government of compulsory licenses. You
could have condemned this decision which imperils dozens of thousands of
peoples, but you did not. By qualifying such profit motivated practices
as “normal”, and by blaming Thailand alone for Abbott’s decision, you
give the impression that you actually support these sorts of threats. It
is extremely shocking to see a European Commissioner adding to the
already unbalanced relationships of power between developing countries
and drug companies. Willingly or not, you’re supporting the hostage
taking policy led by Abbott.

Lastly, the European Parliament adopted a resolution on July, 12th, 2007
which called the European commission to back up the countries which,
like Thailand, would like to resort to the flexibilities mentioned in
the TRIPS agreement and in the Doha Declaration. Concretely, what are
you planning to do regarding this resolution? Your letter to the Thai
government, which is clearly in a complete contradiction with the
Parliament’s resolution, leads us to believe that you are totally
indifferent to the Parliament’s suggestions. Can you prove to us that
this is not the case?

Each and every day 10,000 people die from AIDS due to a lack of
treatment. This outcome is not inevitable. The AIDS pandemics is before
everything a human one. Given that you seem to defend the rights of the
companies against the lives of patients, your pressure on the Thai
government could make you an objective ally of the pandemic.


That's why we ask you to correct your mistakes and approximate
statements. We also ask you to clearly recall that the Thai politics is
in agreement with the international law on intellectual property. We
request that you support – along with the European Parliament – the
countries that resort to the flexibilities mentioned in the TRIPS
agreement and in the Doha statement. If you choose not respond to this
request in a timely fashion, we will be forced to take action and to
publicly condemn your position.



Sincerely,


Act Up-Paris                                                   AIDES

Emmanuel Château                                         Bruno Spire
Hugues Fischer

Co-Présidents                                                  Président

Jérôme Martin
Commission internationale