Opposition From EU Power Brokers

For months, India and South Africa have championed a proposed waiver of intellectual property rights on COVID-19 vaccines, diagnostics, and therapeutics — a move they say is necessary to boost the Global South’s response to the virus and to help slow the spread of the pandemic. Many others agree, including the head of the World Health Organization, Pope Francis, and scores of NGOs like Doctors Without Borders, Oxfam, and the International Trade Union Confederation.

While at least two European governments, that of Spain and Poland, have publicly thrown their support behind a waiver since Washington’s about-face, the EU’s twin power brokers have yet to come around. Despite some initial enthusiasm from French president Emmanuel Macron following Biden’s announcement, his government has yet to endorse a waiver of IP rights, while Germany hasn’t appeared to budge at all from its opposition.

“With France, you never know; Macron’s position depends on the time of day or what’s in the newspaper that morning,” says Haar. “But officially, the French position is not in favor, and they’re backing [Angela] Merkel on this.”

While the EU’s executive branch, the European Commission, hasn’t formally ruled out support for a TRIPS waiver, EU trade commissioner Valdis Dombrovskis outlined a very different approach in a speech to European Parliament on May 19.

He said the EU was preparing to submit an “alternative proposal” to the WTO, a plan centered around three measures that have already been on the table for months: getting drugmakers to pledge to distribute vaccines in developing countries; pushing states to grant what are known as “compulsory licenses” to producers who don’t hold patent rights, a move authorized under existing WTO rules; and finally, forcing governments to end de facto export restrictions on vaccines.

European leaders like to hammer home that last point in particular. Last month, EU Commission president Ursula von der Leyen noted the EU has exported roughly half the COVID-19 vaccines produced on its shores and called on the United States and the UK to catch up.

But as Dimitri Eynikel, a representative to the EU on medical access and vaccines from the NGO Doctors Without Borders points out, that observation doesn’t make for an effective argument against lifting IP rights.

“That’s a fair point that the EU makes. It puts pressure on the UK and the US to be exporting doses; we completely agree with that,” he says. “But it doesn’t take away the discussion over the waiver, because that’s about global production capacity. The other point is about immediate need, delivering the vaccines right now, making them available right now. [Doing that] doesn’t increase your global production capacity.”

Eynikel believes geopolitical and strategic reasons may partially explain the EU’s opposition to waiving IP rights. Back in March, for instance, European Council president Charles Michel boldly proclaimed Europe was set to be the world’s “leading vaccine-producing continent” by the end of the year and argued that exports were evidence of the EU “actively promoting its values” worldwide. But Eynikel says another factor for the resistance could be the power and influence of the pharmaceutical industry, whose calls to protect private-sector innovation have carried the day in Brussels.

Big Spending by Big Pharma in Brussels

As a recent report from the Corporate Europe Observatory highlighted, the European Commission has overwhelmingly prioritized talks with industry contacts over civil society groups when it comes to vaccines. From the beginning of the pandemic in March 2020 to early May 2021, EU commissioners with a direct stake in medicine and vaccines met 140 times with pharmaceutical companies and just once with a group that supports a patent waiver, according to the watchdog group.

“The Commission has created a perfect echo chamber,” says Haar, who worked on the report. “They’ve locked themselves in, almost, with representatives of the pharmaceutical sector, and they haven’t really been hearing close-up arguments from the other side.”

It’s something Eynikel has experienced firsthand as a lobbyist for Doctors Without Borders. He says his NGO communicates with EU administrative staff, but that it hasn’t been able to secure a high-level meeting with any of the relevant commissioners themselves.

In December 2020, Doctors Without Borders put in requests to meet with health commissioner Stella Kyriakides and trade commissioner Valdis Dombrovskis. According to Eynikel, the former declined the request, while the latter did not respond.

“We know these discussions carry a lot of weight,” Eynikel says of the one-on-one meetings with commissioners. “The instruction would have to come all the way from the top if there’s a shift in position, and this is why you need to engage with the highest political levels. . . . We have not been able to have that meeting and discuss our point of view and explain why we’re looking at the issue with a different lens.”

“The question is: Are they really interested in all the options?” he continues, referring to the commissioners. “Or are they interested in the options that are how they’ve done things before?”

Unlike in the United States, campaign contributions are heavily regulated across Europe. Likewise, the amount of cash spent on lobbying in the EU pales in comparison to levels on the other side of the Atlantic. Brussels is nevertheless home to a growing cluster of trade groups, law firms, and corporate power brokers bent on shaping European policy, and the numbers don’t lie: Big Pharma is one of the leaders in the field.

Last year, the European Federation of Pharmaceutical Industries and Associations (EFPIA), the industry’s top trade group on the continent, whose members include vaccine makers Pfizer, AstraZeneca, and Johnson & Johnson, spent between €5.25 and €5.49 million on lobbying EU officials, according to EU disclosures compiled by LobbyFacts.eu. That sum was the eighth-highest amount reported by any lobbying organization in 2020 with a presence in the European Parliament and an office in Brussels. The group says one of its top priorities is “intellectual property protection” — and the organization recently slammed the Biden administration’s statement in support of waiving vaccine patents.

EFPIA has met with high-level European Commission officials more than three dozen times since the pandemic started, according to LobbyFacts.eu, a project overseen by the Corporate Europe Observatory and German NGO LobbyControl. The watchdog group reported that EFPIA held a video call with Kyriakides described as a “discussion on COVID-19 vaccines export authorisation scheme.” Early in the pandemic, EFPIA wrote on its website that the organization was participating in “weekly calls” with Kyriakides and other top EU officials.

On top of that, individual pharmaceutical companies often have their own armies of lobbyists in Europe. Last year, German giant Bayer spent more than €4.25 million on lobbying, more than any other company in the EU after Google, Facebook, and Microsoft. Switzerland-based Novartis, meanwhile, shelled out more than €2.25 million, and UK-based GlaxoSmithKline paid out more than €1 million. FTI Consulting Belgium, the European arm of the Washington, DC public relations firm, is another one of the top spenders lobbying the European Parliament and the European Commission. The firm’s clients include COVID-19 vaccine manufacturers AstraZeneca, Moderna, and Johnson & Johnson, and several other pharmaceutical companies, according to EU disclosure records.

Shifting Waters

The battle is far from over. Public health advocates and human rights NGOs hope the EU will eventually shift its stance under pressure. The US change in position has already shifted the conversation, putting European leaders on the defensive and contributing to growing public criticism of the EU’s stance.

One avenue for change exists at the national level. If enough member states start speaking out in favor of a patent waiver, that could pressure Merkel and her colleagues to drop their opposition.

“We will see, hopefully, one government after the other change its position to a more positive attitude to the waiver,” says Haar. “I suspect that perhaps Germany may be isolated in the end. And I don’t think they’ll be able to stand strong if they’re alone.”

But the institutions of the EU themselves could also play a critical role in pushing the European Commission to accept the inevitability of an agreement over a patent waiver.

The European Parliament recently voted in favor of a resolution that included an amendment calling on the EU to endorse the South African and Indian proposal for a waiver at the WTO — a parliamentary maneuver led by the Left Group, one of seven formal blocs in the legislature and which includes parties like Germany’s Die Linke, Spain’s Podemos, and La France Insoumise.

The vote from legislators was nonbinding — the Commission, not Parliament, determines EU trade policy — but it nevertheless reflects the shifting political waters. Not only did it win backing from centrists, but it also earned support from some right-wing MEPs, part of the largest bloc in Parliament.

“We’re for lifting patents on vaccines because it should be a global public good,” Anne-Sophie Pelletier, an MEP from La France Insoumise and member of the Left Group, tells the Daily Poster. “This pandemic has been a catastrophe for the whole world, we all want to leave it behind, and it’s unacceptable that Big Pharma is getting rich off our lives. . . . We should be in solidarity to get out of this crisis, and if the vaccine is a solution, then everybody who wants to get vaccinated should be able to do it freely.”

The European Parliament is slated to take up a separate stand-alone resolution on supporting a COVID-19 vaccine patent waiver when it meets on June 7 — just a day before the pivotal WTO meeting kicks off in Geneva. A vote from legislators in favor of suspending IP rights would carry hefty political weight: no matter how uncomfortable it makes Big Pharma, it could make it all the more difficult for the EU to hold up talks at the table.