[Ip-health] Dutch drug seisures: TACD letter to European Commission

[Malini Aisola]

The TACD working group on intellectual property has sent letters to the
European Commission (to DG Enterprise, to DG Trade, to DG Taxation and
Customs Union, and to DG SANCO) to ask for clarification about the
recent interception of a shipment of generic medicines by the Dutch
customs authorities, which undermines the free trade of goods and
contradicts international public health policies.

PDF copies of the letters are here:

http://www.tacd-ip.org/files/seizures/TACD_seizures_DGenterprise.pdf
http://www.tacd-ip.org/files/seizures/TACD_seizures_DGsanco.pdf
http://www.tacd-ip.org/files/seizures/TACD_seizures_DGtaxud.pdf
http://www.tacd-ip.org/files/seizures/TACD_seizures_DGtrade.pdf

The text of the TACD communication is as follows:

    9 February 2009,

    According to a number of reports, Dutch customs authorities have
seized several shipments of generic drugs from India generic
manufacturers that were temporarily stored in the Netherlands as goods
in transit to developing country markets.  TACD is concerned that this
action undermines the trade liberalization provisions of the WTO and the
WTO TRIPS accord, as they relate to the necessary freedoms to transport
legitimate goods to legitimate markets, in a world where territorial
patent rights could otherwise present barriers to trade.

    TACD notes that in the 2001 Doha Declaration, as members of the WTO,
the members of the European Union recognized =E2=80=9Cthe gravity of the pu=
blic
health problems afflicting many developing and least-developed
countries,=E2=80=9D and stressed =E2=80=9Cthe need for the WTO Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
to be part of the wider national and international action to address
these problems.=E2=80=9D  In Paragraph 4 of that Declaration, WTO members a=
greed
that =E2=80=9Cthe [TRIPS] Agreement can and should be interpreted and
implemented in a manner supportive of WTO Members=E2=80=99 right to protect
public health and, in particular, to promote access to medicines for
all.=E2=80=9D

    TACD also notes that the members of the European Union have
supported the 2008 World Health Organisation resolution WHA61.21, which
states that =E2=80=9Cinternational negotiations on issues related to
intellectual property rights and health should be coherent in their
approaches to the promotion of public health,=E2=80=9D  and calls upon memb=
er
states to =E2=80=9Ctake into account, where appropriate, the impact on publ=
ic
health when considering adopting or implementing more extensive
intellectual property protection than is required by the Agreement on
Trade-Related Aspects of Intellectual Property Rights.=E2=80=9D

    TACD would appreciate a clarification of Dutch and EU policy toward
the treatment of patent rights for goods in transit, including but not
limited to medicines that are in transit to developing country markets.
TACD also asks the Commission to disclose and explain the proposals the
Commission has been negotiating in the context of the European
Partnership Agreements (EPAs), Free Trade Agreements (FTAs), Association
Agreements, The Anti-Counterfeit Trade Agreement (ACTA), and other trade
agreements on the topic of border measures, provisional measures, and
goods in transit.

    Finally, to what extent has the EU consulted with the public health
community and legitimate generic drug suppliers to determine if current
EU rules and practices are consistent with the policy of facilitating
access to medicines?

Sincerely,

TransAtlantic Consumer Dialogue (TACD) Working Group on Intellectual
Property
European Co-Chair Jill Johnstone, ConsumerFocus
US Co-Chair James Love, Knowledge Ecology International (KEI)

cc: Cynthia Vogeler, Consumentenbond, Sophie Bloemen, Health Action
International (HAI)



--
Malini Aisola
Knowledge Ecology International
1621 Connecticut Avenue NW, Suite 500, Washington DC 20009
Tel: +1.202.332.2670 Fax: +1.202.332.2673