Delhi Network of Positive People | 11 March 2013
Indian negotiators under pressure to give in to European Commission demands
The deadline draws ever near – EU India FTA negotiations:
With the goal concluding the agreement by early April fast
approaching, negotiations have now reached an intense phase with
regular meetings to fast track its conclusion. The Indian Prime
Minister has reportedly asked the Indian Commerce Minister to push the
Department of Industrial Policy & Promotion - in charge of the
intellectual property (IP) negotiations - to settle their differences
with the EU negotiators on IP so that it facilitates the signing of
the FTA next month.
This ‘settling of differences’ during a hasty and rushed negotiation
process is of grave concern, as it could lead to harmful IP
enforcement and investment provisions being accepted in the agreement.
It also undermines democratic parliamentary process, given there is
currently a Parliamentary Standing Committee on Commerce examining
FTAs, with the Indian government and the EC intensifying their efforts
to conclude the EU-India FTA before the parliamentary report and
debate process ends.
The agreement, once concluded and signed, will become binding, and
will set a precedent for intellectual property and investment
standards in all future trade agreements between India and developed
countries (US, EFTA). It also sets a negative precedent for other
developing country governments (e.g.Thailand) who are being
pressurised to accept equally harmful IP provisions by the EU.
What concerns remain:
In 2010 – 2011, the EC agreed to withdraw two harmful IP provisions
from the text of the negotiations on the IP Chapter. De Gucht, the
European Union Trade Commissioner in May 2010 asserted that the EC
negotiators would no longer pursue the issue of supplementary
protection, then in 2011 committed that the harmful data exclusivity
clause would no longer be part of the EU/India Free Trade Agreement
BUT the European Commission is now slyly pushing the following
harmful IP enforcement and investment provisions in the FTA
negotiations with India:
IP CHAPTER ENFORCEMENT MEASURES - If accepted by India, pharmaceutical
companies can easily abuse these provisions and use them as a
commercial tactic to delay or destroy generic competitor’s medicines
as it has to merely claim but not immediately prove that their IP is
being infringed. These measures include legitimate medicines being
blocked from leaving India on their way to people in developing
countries (border measures). In addition, domestically the measures
could implicate third parties —such as suppliers of active
pharmaceutical ingredients (API) used for producing generic medicines,
distributors and retailers who stock generic medicines, and treatment
providers— and embroil them in court cases simply for buying or
distributing generic medicines. As a result of these provisions, third
parties are at risk of injunctions, provisional measures and severe
economic losses. The measures also seek to curb judicial activism in
India as courts seek to balance intellectual property rights with
people’s constitutional right to health. The EU is trying to
fundamentally change how Indian courts and judges handle cases
involving intellectual property disputes on medicines.
INVESTMENT RULES: The investment chapter of the EU India FTA would
further expand the ability of foreign investors (essentially,
multinational corporations) to sue for billions of dollars if national
laws, domestic policies, court decisions or other actions interfere
with the ‘enjoyment’ of their investments – even if the government’s
actions are in accordance with its constitution and national laws.
India could thereby be at risk of being sued if, for example, the
government, courts or the patent office reject, override or revoke a
patent on a medicine to increase access to a medicine. This is in fact
already happening in Canada, where Eli Lilly is threatening to sue the
government of Canada under similar investment rules included under
NAFTA because its courts revoked a drug patent considering it did not
adequately meet the criteria for patentability.
It is also in conflict with the current process of review that the
Department of Economic Affairs is undertaking of existing provisions
in bilateral investment agreements, given there is a growing threat of
possible claims being filed in arbitration by investors for billions
of dollars against India challenging its domestic policies,
legislation and court decisions in a number of key sectors.
What needs to happen?
The Indian government is in a stronger negotiation position than many
other developing countries who are negotiating FTAs with the EC and
the US (TPPA). The Indian Government needs to stand strong and push
hard for the removal of the IP enforcement measures from the IP
chapter and the investor to state dispute provision from the
investment chapter. The Indian government needs to wait till the
parliamentary standing committee concludes its process of examining
FTAs and not rush into signing this agreement.
Civil society and PLHIV networks across the world need to support us
in this unequal and conclusive battle against the unfair demands of
the European Commission on IP enforcement and investment standards.
Write letters, appeals, petitions to Indian policy makers and
representatives in your country asking them to not give in to EU
We request organizations and individuals across the world to join
Delhi Network of Positive People this month to issue an appeal to the
Indian government to ’not sign on’ to the IP enforcement and
investment provisions. DO NOT TRADE AWAY OUR LIVES!
Protest against the EU - The EU should drop its pretence that it
supports access to medicines and is concerned about the lives of
patients in developing countries. The IP enforcement agenda of the EU
was evident when it started to seize Indian generic medicines on their
way to Africa and Latin America. Now three years later, the pressure
on India - to blindly adopt IP enforcement provisions in the FTA -
highlights its continued indifference to loss of lives in developing
Come join us - in our protests against the European Commission!
Vikas Ahuja & Loon Gangte
Delhi Network of Positive People
New Delhi, India