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EU trips the poor

Even as India and the European Union (EU) inch closer to threshing out a free-trade agreement, the unresolved issue of seizures by EU member countries of Indian generic drugs on their way to other destinations continues to sour relations between the two. Over a score of such incidents of unlawful confiscation of Indian drug shipments by European customs authorities have occurred in the past three years. Ironically, most of such seizures have been of generic drugs that are not patented in India or in the export destination countries, even if they had patent protection in EU member countries. Labelling them as “counterfeits” and charging them with violation of patent laws, are, therefore, untenable. If EU countries, under pressure to guard the commercial interests of their big pharmaceutical corporations, do not stop such dubious seizures, the repercussions would extend far beyond India. At stake would be not only Indian drug exports, estimated to be about Rs 40,000 crore annually, but also the availability of cheaper life-saving medicines to the millions of poor living in developing countries, to whom these seized exports were being shipped, and who cannot afford access to costly patented drugs.

More worryingly, for all those seeking access to affordable medicines, the EU is ganging up with the US, Japan and other developed countries to seek an anti-counterfeiting trade agreement (ACTA) which would further complicate the issue. For, ACTA would set its own norms of protecting intellectual property, going beyond the existing global trade-related intellectual property rights (TRIPs) agreement under the World Trade Organisation (WTO). Worse still, there are other proposals also under negotiation, albeit without involving developing countries, which are equally objectionable. The two significant ones among them are the World Customs Organisation standards to be employed by customs for uniform rights enforcement (SECURE) and the norms being worked out by the international medical products anti-counterfeiting task force (IMPACT) of the World Health Organisation (WHO). The real problem with such questionable TRIPs-plus measures is that these would blur the definition of generic drugs and would, also change the transit rules to justify drug seizures passing through EU ports on the mere grounds of suspicion that they may be contravening the provisions of intellectual property rights. TRIPs, on the other hand, permits developing countries to manufacture even patented drugs if these are classified as essential or critical for public health.

New Delhi has done well to use the WTO to slam ACTA. India has secured the support of other developing countries, notably Brazil and China, that are equally incensed by EU’s effort to protect its pharma industry interests, side-stepping TRIPs. Equally heartening is the support India is getting at the WTO in its appeal against the European Commission’s regulation number 1383/2003, under which most of the Indian generic drug consignments have been detained by the EU countries. This campaign, however, needs to be intensified further to build up real pressure on the WTO to protect TRIPs as outlined under the Doha declaration and ensure that the poor continue to have access to affordable medicines from countries like India.