By David Cronin for Intellectual Property Watch
BRUSSELS – The European Parliament looks set to take Brussels’ top trade official to task over his latest attempt to persuade Thailand that it should revise its policy on pharmaceutical patents.

Shortly after a new government was installed in Bangkok earlier this year, European Union trade commissioner Peter Mandelson urged it to review a series of compulsory licenses issued by the previous administration that overruled patents on several medicines.

When a copy of Mandelson’s letter, dated 21 February [see attached], was obtained by members of the European Parliament (MEPs) in the past few weeks, it drew an angry response. Some MEPs have accused the European Commission of backtracking on commitments it has made to support the use of such measures as compulsory licensing in order to reduce the price of medicines in developing countries.

In discussions held this week, representatives of the Parliament’s political groups agreed to formally protest at Mandelson’s letter. They also decided to request that Mandelson appears before the Parliament’s international trade committee in the near future to answer questions about the surrounding issues.

Vittorio Agnoletto, an Italian MEP who has been actively involved in the access to medicines debate, said: “We absolutely cannot accept this.”

Agnoletto alleged that there is a contradiction between statements that Mandelson has made to the Parliament and those contained in his letter. “He is using two different languages,” Agnoletto added. “I have the impression he is working more for the pharmaceutical industry than for the Commission.”

In his letter – addressed to Thai Commerce Minister Mingkwan Saengsuwan, Mandelson said that the European Union is “one of the most important sources of foreign direct investment in Thailand.” Bangkok’s stance on compulsory licensing, he continued, “has raised some concern among EU investors, particularly the pharmaceutical industry.” Industry has frequently raised the concern that uncertainty about patent protection for companies’ products is a deterrent to investment.

Mandelson said that he supported a declaration approved by the World Trade Organization at its 2001 ministerial conference in Doha, Qatar. That declaration reinforced WTO rules that allow a flexible approach to be taken to intellectual property rights when issues of public health are at stake.

Still, he argued that compulsory licensing should be “an exceptional measure” and that alternatives such as negotiations with drugs companies should be explored before it is resorted to. “Against this background, I was rather surprised to learn that the outgoing minister for public health has reportedly announced a new set of compulsory licenses for new drugs before his departure,” he said.

This is the second time that Mandelson is known to have queried the Thai policy on pharmaceutical patents. During 2007, he wrote a similar letter to several Thai ministers after Bangkok decided to issue compulsory licenses for three medicines used to treat HIV/AIDS and one for heart disease.

After being questioned by MEPs, Mandelson offered assurances in October last year that he would not do anything to undermine access to medicines in what he described as “poor developing countries.” Thailand is, however, recognised as a middle-income country by the United Nations.

Alexandra Heumber, a campaigner with the humanitarian aid agency Médecins Sans Frontières (Doctors Without Borders) welcomed the MEPs’ decision to complain over the alleged contradictions in Mandelson’s statements.

Each of the EU’s most powerful institutions – the Commission, Parliament and Council of Ministers – has undertaken to promote access to affordable medicines in developing countries, she said. “It is important that each of them takes its responsibility seriously,” she added. “If we don’t have strong political will to affirm the commitments made at Doha and to support the flexibilities it provides for, then they will never be put into practice.”

According to Heumber, the Doha declaration leaves it at the discretion of developing countries to decide when they wish to issue compulsory licenses and that it does not contain any obligation that negotiations take place with a patent-holder beforehand.

“Peter Mandelson is trying to reinterpret the Doha declaration,” she said.

David Cronin may be reached at info@ip-watch.ch.