[Ip-health] Intervention by the European Communities (EC) at WTO General Council on the seizure of losartan by Dutch customs authorities

[Thiru Balasubramaniam]

http://www.keionline.org/blogs/2009/02/05/ec-intervention-at-wto/

Intervention by the European Communities (EC) at WTO General Council
on the seizure of losartan by Dutch customs authorities

On 3 February 2009, Ambassador Eckart Guth of the European Communities
to the World Trade Organization made the following intervention at the
WTO General Council on the subject of the seizure of losartan by the
Dutch customs authorities.

WTO GENERAL COUNCIL (3rd February 2009)
Any Other Business

EC INTERVENTION

=95 While we appreciate the right of Brazil and India to raise this
issue in this forum, I would have liked that it would have first been
raised bilaterally to clarify together the facts and figures, before
triggering a highly emotional debate. Also, we would prefer that
members refrain from jumping into incorrect conclusions. I assume that
none of the countries that have intervened would wish the EC to allow
the flow of counterfeit goods to their populations. The issue at stake
should not be blown out of proportion.

=95 Let me recall the facts. This is a case of a shipment of medicines
from India to Brazil via the Netherlands. Dutch customs authorities
detained the shipment in conformity with EU and WTO law, in particular
Art V of GATT and Art. 51 of TRIPS which allows customs authorities to
suspend the release of goods.

=95 Let me make it very clear that the EU has absolutely no intention to
hamper any legitimate trade in generic medicines or to create legal
barriers to prevent movement of drugs to developing countries, nor
have our measures had this effect. We are absolutely committed to all
the efforts that are being made to facilitate access to medicines.

=95 In the present case, it appears that, following a request by a
company which has patent rights over the medicine in question in the
Netherlands, the Dutch authorities temporarily detained (which does
not mean seize, confiscate or destroy) a small shipment of drugs worth
55.000 euros in a Dutch airport, in order to control it. This action
is allowed by TRIPS and is based on provisions in EU customs law that
allow customs to temporarily detain any goods if they suspect that
these goods infringe an intellectual property right.

=95 The goods were not intended for the EC market and the medicines were
finally released by the authorities, leaving their (Indian) owner the
right to do with these goods as he pleases. There was certainly no
legal obligation to send these goods back to their country of origin
(i.e. India). We are still not clear as to why the company decided to
proceed that way, but this is in any event beyond our authority once
the goods were safely returned to their owner. We have no indication
that there is a systemic problem in this respect.

=95 Allow me to specify that the EU customs legislation foresees that,
if a detention has been done on the basis of an unsubstantiated
complaint, the owner of the products is entitled to compensation.

=95 It goes without saying that IP enforcement law should not create any
undue barriers to access to medicines, and we are confident that this
is not the case. Nevertheless, we will cooperate with India and Brazil
to look into this matter further. We are also willing to provide full
information about the legal grounds on which the decision was taken.

* * *

Posted in Enforcement of intellectual property rights, Medical
technologies, Politics and Advocacy. Tagged with Access to Medicines,
Brazil, Doha Declaration, EU, india, Interpol, Netherlands, World
Customs Organization.
By thiru
February 5, 2009


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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997