On 3 February 2009, Ambassador Eckart Guth of the European Communities to the World Trade Organization made the following intervention at the WTO General Council on the subject of the seizure of losartan by the Dutch customs authorities.
WTO GENERAL COUNCIL (3rd February 2009)
Any Other Business
EC INTERVENTION
• While we appreciate the right of Brazil and India to raise this issue in this forum, I would have liked that it would have first been raised bilaterally to clarify together the facts and figures, before triggering a highly emotional debate. Also, we would prefer that members refrain from jumping into incorrect conclusions. I assume that none of the countries that have intervened would wish the EC to allow the flow of counterfeit goods to their populations. The issue at stake should not be blown out of proportion.
• Let me recall the facts. This is a case of a shipment of medicines from India to Brazil via the Netherlands. Dutch customs authorities detained the shipment in conformity with EU and WTO law, in particular Art V of GATT and Art. 51 of TRIPS which allows customs authorities to suspend the release of goods.
• Let me make it very clear that the EU has absolutely no intention to hamper any legitimate trade in generic medicines or to create legal barriers to prevent movement of drugs to developing countries, nor have our measures had this effect. We are absolutely committed to all the efforts that are being made to facilitate access to medicines.
• In the present case, it appears that, following a request by a company which has patent rights over the medicine in question in the Netherlands, the Dutch authorities temporarily detained (which does not mean seize, confiscate or destroy) a small shipment of drugs worth 55.000 euros in a Dutch airport, in order to control it. This action is allowed by TRIPS and is based on provisions in EU customs law that allow customs to temporarily detain any goods if they suspect that these goods infringe an intellectual property right.
• The goods were not intended for the EC market and the medicines were finally released by the authorities, leaving their (Indian) owner the right to do with these goods as he pleases. There was certainly no legal obligation to send these goods back to their country of origin (i.e. India). We are still not clear as to why the company decided to proceed that way, but this is in any event beyond our authority once the goods were safely returned to their owner. We have no indication that there is a systemic problem in this respect.
• Allow me to specify that the EU customs legislation foresees that, if a detention has been done on the basis of an unsubstantiated complaint, the owner of the products is entitled to compensation.
• It goes without saying that IP enforcement law should not create any undue barriers to access to medicines, and we are confident that this is not the case. Nevertheless, we will cooperate with India and Brazil to look into this matter further. We are also willing to provide full information about the legal grounds on which the decision was taken.
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