Resumption of India-EU FTA negotiations Will access to affordable generic medicines come under threat?

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Ms. Cecilia Malmström, European Commissioner for Trade, Brussels  
Re: 13th EU-India summit 30 March 2016  
Resumption of India-EU FTA negotiations
Will access to affordable generic medicines come under threat?

 Dear Ms. Malmstrom,
 We are writing on behalf of the Delhi Network of Positive People (DNP+) and International Treatment Preparedness Coalition- South Asia (ITPC-South Asia), organisations working with and for PLHIV community with an aim to achieve universal access to treatment and care.
At the onset on behalf of people living with HIV, we would like express sincere condolences at the loss of life due to the terrorist attacks in Paris and Brussels.

Today, Prime Minister Modi and EU officials are expected to announce at the Summit the resumption of negotiations on a trade and investment agreement (EU-India FTA). We would like to raise key concerns regarding the status of negotiations on Intellectual Property (IP) and investment provisions.

The EU-India Free Trade Agreement (FTA) has been in negotiations since 2007. From the outset, the European Commission has pushed to include provisions that would undermine India’s ability to produce affordable medicines on which millions of people in developing countries rely.
In 2011, certain provisions damaging to access to medicines such as patent term extensions and data exclusivity have been removed by EU negotiators or rejected by the Indian Department of Industrial Policy and Promotion (DIPP) from the proposed text. (See: We hope that the EC will stand by its position and promises made publicly to people living with HIV and not try to bring these back into the discussions (directly or indirectly) with the Indian negotiators and its ministers.
DNP+ also requests the EC to take other harmful IP provisions out of this trade deal, particularly IP enforcement measures such as:
  1. INTELLECTUAL PROPERTY ENFORCEMENT text includes a number of different measures (criminal sanctions for IPR infringement, evidence, injunctions etc.) that attempt to govern the way the disputes around patents and civil trademark infringements will be managed by Indian courts. If India signs up to these clauses, the Indian judiciary will have its hands tied and will no longer be able to balance IP rights with the right to health of patients. In addition, the negative impact of excessive border enforcement measures was clearly demonstrated by the wrongful in transit seizures of generic medicines on their way through the EU from India to Africa and Latin America. Some of the harmful IP enforcement provisions are similar to those included in the Anti-Counterfeiting Trade Agreement (ACTA), a controversial, pluri-lateral treaty, that did not include India, which was rejected by the European Parliament by an overwhelming majority after intense public and political scrutiny.
  1. INVESTMENT PROVISIONS: We would also like to draw your attention to the negotiations on the investment provisions. As negotiations are likely to pick up pace on the investment chapter, we specifically request the EC to not extend the definition of investment to include intellectual property and to exclude the investor-state dispute settlement (ISDS) mechanism. If included in the trade deal, the EC will be further expanding and supporting a mechanism for multinational companies including drug, tobacco and chemical companies to sue developing countries like India – outside of domestic courts in secret arbitration for millions of dollars – when it regulates health and environment in public interest. Some of these concerns have also been articulated in the negotiations between the European Commission and the United States on the Transatlantic Trade and Investment Partnership (‘TTIP’), especially when it comes to unclear definitions that leave too much room for abuse. While some of the proposed changes to the ISDS system put forward by the European Commission – in the context of TTIP and future FTAs – seek to improve oversight and transparency of the system, the inclusion of IP as an investment remains a serious threat against countries’ right to curb IP to protect of public health.
In the past, the EC has consistently demanded that India keep the process and content of the FTA negotiations secret. However, we note that the Commission has changed policy and that it intends to apply the same level of transparency with regards to the mandate given by the EU Member States and negotiation texts proposals as it has done in the context of TTIP. We expect that this policy is urgently implemented for all existing proposed negotiating texts from the EU-India FTA.  
Finally, the TRIPS agreement – which has bound India to introduce a product patent system in 2005 – has already begun to curtail the country’s ability to produce low-cost generic versions of newer HIV, hepatitis and cancer medicines. We trust that the European Union recognized for its respect for human rights, will not push India to accept TRIPS Plus IP provisions in the trade negotiations that will undermine India’s ability to continue producing and supplying life saving medicines to governments and millions of patients across the world.
So many lives – including patients in the EU – depend on it worldwide.
Awaiting a response to our concerns,
Paul Lhungdim, President, Delhi Network of Positive People (DNP+),
Loon Gangte, Coordinator, International Treatment Preparedness Coalition- South Asia
Mr. Tomasz Kozlowski, Ambassador and Head of the Delegation of the European Union to India,
Head of cabinet, Ms. Maria Åsenius:
Deputy head of cabinet, Mr. Miguel Ceballos Barón:
Assistant to Commissioner Ms. Helen Cogels:
Mr. Neven Mimica, Commissioner for International Cooperation and Development,
Head of Cabinet: Mr. Niels Behrndt:
Member of Cabinet, Mr. Denis Cajo:
Mr. Anders Jessen, Head of Unit IP and public Procurement,
To download: Letter to European Commission_EU India Summit


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