Does EU-India FTA Serve Mutual Interests? Policymakers, NGOs Disagree

The proposed European Union-India free trade agreement was one of the top issues at the 11th EU-India Summit held in Brussels today. But two sides of the story are being told about who will benefit or lose.

Despite a rising number of protest marches and activities by small-farmer and medical health organisations over the week in several Indian cities, Prime Minister Manmohan Singh said during a press conference: “It is my firm belief that a broad-based trade agreement is in the mutual interest of both countries.”

While he was aware of the concerns of what will happen to the millions of small farmers and shopkeepers in India under such a deal, he was of the opinion that the partners could build enough safeguards into the agreements to protect these interests. Some 250 non-governmental organisations think otherwise and yesterday signed a declaration published by Traidcraft, Misereor and WIDE to request an immediate halt to the negotiations.

The EU-India FTA, the biggest single FTA, according to Herman van Rompuy, President of the European Council, shall be concluded in spring of next year. EU Commission President Manuel Barroso said the 11th EU-India Summit today would give a last political push for a quick finalisation of the negotiations by the experts. The “contours” of the agreement are now well visible, he said.

Singh said negotiating experts were asked to redouble their efforts to close remaining issues. “Let us seal the deal in 2011,” Barroso said. Yet a hint that the agreement might only be signed by the political leaders at the next year’s summit in Delhi would mean that the deal, originally planned to be done by this year’s summit will be late by a full year.

Contrary to the officials view, NGOs have warned against possible negative impacts with regard to access to medicine and food security. The Delhi Network of Positive People (DNP+) in a statement today warned that despite assurances the IP provisions that impact access to medicines would not part of the deal, they would be cautious.

[Update: the UN Special Rapporteur on the Right to Health today issued a statement of concern that “the EU-India draft free trade agreement could prevent millions of people gaining access to necessary, life-saving and life-prolonging medicines.” Read the statement here.]

Losing Trust in EU Politics

During the negotiations for India’s implementation of World Trade Organization rules similar assurances were made, but the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) finally led to the “introduction of the product patent regime in key medicine producing countries and is responsible for systematically undermining the production of newer medicines in a number of countries with a high burden of disease.”

“My friends and colleagues in India are already facing the impact of the intellectual property regime mandated by the TRIPS agreement,” said Loon Gangte of DNP+. “Patents in India have meant that people living with HIV who are co-infected with hepatitis C have to pay not less than US$ 10,000 for the treatment regimen that has been patented in India.” DNP+ and Médicins Sans Frontières (MSF, Doctors without Borders) fear the FTA will further increase intellectual property standards.

MSF expressed its concerns in Brussels today by building a brick wall symbolising the possible barrier EU and Indian officials would erect and thereby hamper the flow of generic drugs. They started a campaign titled, “Europe – hands off our medicine!” Dr. Peter Saranchuk, HIV Doctor for MSF in South Africa said, according to a press release of MSF, “A decade ago, people wouldn’t even bother getting tested for AIDS because they knew the drugs to treat them were too expensive anyway. We cannot let the Europeans shut down the supply of affordable medicines we and others rely on to treat patients around the world.”

MSF is especially angry because it perceives the push for stricter patent protection in the FTA as a move by big pharmaceutical companies like Bayer to use “the European Commission’s trade policies to try to block generic competition in India” after being unsuccessful in several court cases.

“The EU is trying to give their pharmaceutical companies a back-door route to monopoly status, when they can’t get a patent through the front door,” said Michelle Childs, policy director at MSF’s Campaign for Access to Essential Medicines, speaking at a protest outside the summit in Brussels. She pointed especially to Germany, the United Kingdom and France.

Leena Menghaney, MSF campaigner in India, in a personal statement to Intellectual Property Watch said she was disappointed about the fact that EU officials had continued to assure that no harm would be done to Indian patients, but had not taken out the much-criticised data exclusivity terms that will ban the use of scientific and clinical data of off-patent medicines for generic drug providers. She said she is afraid that the EU will lose the trust it has built up in developing countries.

Data exclusivity is only one of a long list of issues that also concern the Catholic aid organisation Misereor, Armin Paasch of Misereor told Intellectual Property Watch. Stronger patent protection, stronger enforcement mechanisms and border measures and strict injunctions are also troubling, he said.

Misereor’s biggest concern is access to affordable food. “We know from other developing countries that a massive growth in export of dairy and meat products, especially chicken, kicked out small farmers,” Paasch said. Misereor thinks stronger patent protection also will lead to “hunger and malnutrition by denying small-scale and subsistence farmers’ right to save, use and exchange seed and propagating material.”

“In addition, the expansion of big western supermarkets will put small shops out of business. This results in a violation to the right of food,” Paasch said. He is convinced that that this is a violation of human rights granted in the UN Universal Declaration of Human Rights, but also under European law. He said it is an open question whether people affected in India could file complaints in European Courts to have these rights respected. Misereor and its Protestant counterpart Church Development Services sent letters to the EU official bodies gathered at the Summit

Lack of Transparency

One of the constant complaints about the EU-India FTA is the lack of transparency. Paasch said there for example was ever-changing information and rumours about how much import taxes should be reduced. “Is it 90, 95 or as most recently reported 98 percent?” he asked. Not even the members of parliament in Brussels or in Dehli are allowed to see the texts.

John Clancy, spokesman for EU Trade Commissioner Karel De Gucht, explained to Intellectual Property Watch that the “Commission does inform the European Parliament (and member states) on a regular basis as per its mandate and according to the Lisbon Treaty including regular updates by Commissioner De Gucht.” The democratic role of the EP was also clear under the Lisbon Treaty: it has “to vote to accept or reject a proposed agreement after a deal is set.”

EP Green Party Member Ska Keller and other EP members heavily disagree with such an interpretation. To be fully informed at all times for her includes having access to the text. Keller asked why the EP had been granted access to the negotiating drafts of the Anti-Counterfeiting Trade Agreement, but were denied access to the FTA. “For ACTA, there was a lot of pressure for transparency, for the EU-India FTA it has not been the same for now,” she said.

Still, members of various party groups would continue to push for better access. Keller and her party group meanwhile wrote letters to the UN special rapporteurs on access to health and access to food to challenge the EU Commission’s analysis that the agreement would not have negative effects on India’s poor.

On the Indian side, the access to the political process is even more difficult. According to an expert at the HIV/AIDS Unit of the Lawyers Collective in India, “it is up to the government to decide about a debate in Parliament,” once the agreement is ready. The more public and political pressure there is, the more likely the government will be to grant a debate. If this were happening there would be hope that some of the more problematic issues would be questioned. For many of the activists it is a shame that the EU and India, which both point to the FTA as bringing together a union of 27 democracies with the biggest democracy in the world, do not allow an open discussion about an agreement that affects the livelihood of so many people.

The EU and India during the summit also agreed on several joint declarations on the fight against piracy, the fight against terrorism, cooperation in security issues and other topics.