Geneva/New Delhi: India and Brazil jointly launched a trade dispute against the European Union (EU) and the Netherlands on Wednesday over the seizure of generic medicines in transit.
Their request to the World Trade Organization (WTO) for consultations with the EU and the Netherlands, the first step in a formal dispute, ratchets up the pressure in a row pitting the intellectual property rights (IPRs) of pharma firms against access to affordable medicine for people in poor countries.
Medicine consignments by Indian firms have been seized in transit at European ports several times on grounds of alleged patent infringement.
In 2008, there were 17 cases of medicine seizures in the Netherlands alone, according to a response from Dutch authorities to Health Action International, a non-profit organization, under a freedom of information request. Of these, 16 were shipped from India and one from China.
Under European Commission (EC) laws, if a consignment of drugs is not patented in the country of origin or the final destination, it can be seized. EU customs can, on the basis of a 2003 EC regulation, detain goods in transit if they suspect violation of an IPR.
India has objected to this, arguing that an agreement on trade-related aspects of intellectual property rights allows such exports as the EU was not the destination.
A letter to EU’s WTO mission from India’s WTO ambassador, Ujal Singh Bhatia, a copy of which was obtained by Reuters, said Dutch customs had seized at least 19 consignments of generic drugs in 2008 and 2009, of which 16 originated in the Netherlands. “India considers further that the measures at issue also have a serious adverse impact on the ability of developing and least-developed country members of the World Trade Organization to protect public health and to provide access to medicines for all,” he said. An Indian commerce ministry official confirmed the development, but said, “This is not a complaint. It is a formal request for consultation.”
R.S. Ratna, professor at the Centre for WTO Studies, said formal consultation would go on at least for three months.
“If India thinks EU is not forthcoming, then it can approach WTO to set up a panel, which will take up the complaint,” he said.
Leena Menghaney, campaign coordinator (campaign for access to essential medicines) at Medecins Sans Frontieres, said there was an urgent need to review EU’s regulations that had led to the seizures. “Such regulations are now creeping into treated agreements, into ACTA (anti-counterfeiting trade agreement), and, therefore, this particular domestic regulation has to be challenged by India and Brazil,” she said.
EU officials, who argue that their checks aim to identify counterfeit medicines rather than stopping people in developing countries from getting treatment, had been hoping to negotiate a way out of the dispute. The officials say they have no interest in halting the manufacture of generic drugs in developing countries or their legitimate export.
EU’s ambassador to India, Danielle Smadja, recently told reporters in New Delhi that the EU was in the process of changing its regulations to resolve the issue. The row comes as the EU and India aim to agree to a free trade pact this year. Brussels has also relaunched talks on a trade deal with the Latin American bloc Mercosur dominated by Brazil.