144. Switzerland holds the opinion that non-violation and situation complaints should be applicable also under the TRIPS Agreement. Despite the recurring decisions in the past to further extend the moratorium, we firmly believe that the TRIPS language is very clear in this respect – the moratorium should end and non-violation complaints become applicable.
145. The mandate of Art. 64.2 and 64.3 does not instruct the Council to examine whether or not non-violation complaints should apply under the TRIPS Agreement. Such discussion is outside the mandate's scope. The mandate is clearly limited to the Council examining the scope and modalities for non-violation complaints and then submitting its recommendations to the Ministerial Conference for approval. Although the Ministerial Conference has repeatedly granted an extension to the period, which was initially limited to five years after the entry into force of the WTO Agreement, this has still not brought about any result. And thus, the Council has still not fulfilled its mandate.
146. As we have repeatedly stated and has also been pointed out by South Africa, non-violation complaints are an exceptional remedy. They are solely to provide predictability and security to all Members under the TRIPS Agreement, just as they do under the GATT and GATS. And they preserve Members' ability to implement legitimate social, economic, development, health, environmental and cultural policies.
147. Opponents of the applicability of non-violation complaints under TRIPS have voiced a number of concerns. We would like to further allay those concerns. Firstly, it is important to stress that non-violation disputes cannot be used as a tool to increase the level of intellectual property protection established under the TRIPS Agreement. The DSU applies, and its Article 3(2) prescribes that “recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.” A second important point we recall is that one key condition for a non-violation complaint to succeed is that the challenged measure could not have been foreseeable. The recourse to a TRIPS flexibility is a foreseeable measure, and thus cannot be challenged by means of a non-violation complaint.
148. GATT together with the DSU provide guidance on the applicability and use of non-violation complaints in the context of the TRIPS Agreement. The relevant rules are complemented by a number of panel and Appellate Body decisions. They have conducted a significant analysis of non-violation provisions. Their decisions provide WTO Members with the necessary scope and set of modalities applicable to non-violation complaints, also under the TRIPS Agreement.
149. With the objective of ending the repeated renewal of the moratorium, the TRIPS Council should eventually move forward and resolve the stalemate situation. The sole purpose of Article 64.3 TRIPS was a moratorium for Members to have five more years to discuss the scope and, if found necessary, special modalities for the TRIPS context.
150. Although we believe that rules already in place for dispute settlements in the WTO are sufficient, we are open to considering specific proposals which allow for a more concrete examination of the scope and modalities for non-violation and situation complaints under the TRIPS Agreement. The conditions mentioned earlier in my delegation's statement today may provide a start for such a discussion in the Council.
