[Ip-health] Negotiators meet today - April deadline - EU‐India Free Trade Agreement

leena menghaney leenamenghaney at gmail.com
Fri Mar 22 02:36:30 PDT 2013

The chief negotiators of both sides (EU- India) will meet in Brussels today
and tomorrow (on March 22 and March 23). The negotiations have now reached
an intense phase, with regular meetings to fast-track the conclusion of the
agreement which, according to recent statements from the Commerce Minister
himself, will be concluded by April 2013. Perhaps at the Ministerial
meetings in early April. See

As you are aware, MSF has been actively following the EU- India Free trade
agreement, and has previously raised concerns with the Indian Government,
as well as with the European Commission, about a number of IP clauses in
the FTA that could harm access to affordable generic medicines.

As the negotiations have progressed in recent years, certain provisions
damaging to access to medicines have been removed from the proposed deal,
including, for example, attempts to extend the duration of patents. In
particular, we welcome the decision of the EU in 2011to remove  in the
provisions such as data exclusivity, which creates barriers to the
marketing approval of generic medicines. In April 2012, De Gucht
wrote: “This means that the FTA will not request India to change its law
either with respect to data exclusivity or the supplementary protection of
patents beyond the 20 years required by the World Trade
Organisation’s trade-related aspects of intellectual property rights
agreement.” (

However, the intellectual property (IP) enforcement and investment
provisions are still seriously concerning, particularly as an early April
deadline to sign the agreement draws near. Leaked text of the IP
enforcement measures are widely available on the net. Please

• Our concerns are not misplaced. Based on the leaked text, our own
technical analysis concludes that the stricter enforcement measures
suggested by the European Union will negatively affect millions of people
relying on affordable generic medicines produced in India. The EU's
proposed enforcement measures include, but are not limited to, a stricter
injunction system, third party liability regime and strong border measures.
This threat could be averted by the removal of the IP enforcement text.

• Measures on investment proposed by the EC, could see the Indian
government sued by multinational companies for billions of dollars in
private arbitration panels if national laws, policies, court decisions or
other actions are perceived to interfere with their investments – for
example, if an Indian patent office rejects or overrides a patent on a
medicine to increase access. In 2012, for example, US pharmaceutical
company Eli Lilly started proceedings against the government of Canada
through the North American Free Trade Agreement’s (NAFTA) investor-to-state
dispute mechanism, claiming that the decisions of a Canadian court to
invalidate its patent on the medicine atomoxetine violated Canada’s
obligations under NAFTA and the WTO. The company is seeking $100 million in
compensation. In separate cases, tobacco company Philip Morris is
threatening legal action against the governments of Uruguay and Australia,
following attempts by these countries to introduce pictorial health
warnings and plain packaging for cigarettes (tobacco). As a result of the
damaging implications of such clauses, Australia has gone on record saying
that they will no longer include investor-state dispute resolution clauses
in its investment treaties.

Leena Menghaney
MSF Access Campaign (India)

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