Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Dagfinn Sørli (Norway)
European Union
14 DRAFT GENERAL COUNCIL DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH IN THE CIRCUMSTANCES OF A PANDEMIC
552.   We have asked for this point to be included in the agenda of today's meeting in order to share information with all Members on the request we made under Article 63.3 of the TRIPS Agreement to one of the core transparency provisions of this Agreement. The European Union attaches great importance to the role of the WTO in creating transparency as to world trade rules. Therefore, the European Union on 6 July sent an Article 63, paragraph 3 TRIPS information request to China. The request asked for more information on Chinese courts judgements putting in place worldwide "antisuit injunctions." 553.   These injunctions instruct patent holders not to assert their rights in any other court in or outside of China. Two judgements specifically barred a right holder from enforcing a European Union court decision relating to a European patent. Some of these decisions also contain measures relating to initiating court procedures on licence questions and royalty rates. These decisions appeared to give a new interpretation to existing laws and regulations. 554.   Based on its decision in Conversant v Huawei case the Supreme People's Court published "adjudication guidelines" as a model for China's approach to anti-suit injunctions and daily fines. The Supreme People's Court 2020 annual report presented a decision in a case between OPPO Sharp as a "big" IP case, remarking this was a big step in "giving further impetus to China becoming a world leader in setting intellectual property rights rules." 555.   The European Union considers it especially important that Members and right holders can acquaint themselves with those decisions that are identified as typical, example cases and the guidelines that follow from these. Therefore, the European Union asked China questions for clarification on these measures, to understand better these decisions and the new approach. 556.   On 7 September the EU received China's communication stating that it considers there is no obligation under the TRIPS Agreement to respond. The response also stated that the Supreme People's Court case and Guidelines, and the Court cases these referenced, which the EU had asked information on have "no legal effect of general application." I quote. Apparently, that was considered the ground for not providing further information. 557.   According to the European Union reading of the TRIPS Agreement there is an obligation to reply under Article 63.3, which states explicitly a Member should be prepared to supply the information requested. The first sentence of Article 63.3 makes clear this comprises regulations and judicial decisions of general application. The second sentence of Article 63.3 makes clear a Member should also be prepared to supply the information requested on specific judicial decisions. 558.   As any Member can always direct a request to another Member, interpreting the Article as containing no obligation to respond would render the provision meaningless. This conclusion would not be in line with the rules on interpretation of the WTO Agreement as set out by the Appellate Body. The European Union would therefore like to express its wish to still receive a written reply to the written request it has submitted under Article 63.3.
121. The Chair recalled that on 4 June 2021, the Council had received a communication from the European Union on "Urgent Trade Policy Responses to the COVID-19 Crisis: Intellectual Property".(document ), which had been followed on 18 June 2021 by a "Draft General Council Declaration on the TRIPS Agreement and Public Health in the Circumstances of a Pandemic".(document ).
122. The European Union had introduced its proposed declaration during an informal meeting held on 24 June 2021. The proposal had also been discussed during informal meetings held on 30 June and 6 and 14 July, and at a formal meeting on 20 July. It had since been discussed at every meeting dedicated to discussing the revised TRIPS waiver proposal under the previous agenda item. As part of the TRIPS Council's status reports to the General Council on the revised waiver request on 27 July and on 4 October, Members had reported that the TRIPS Council would also continue its consideration of the EU's proposal.
123. The representatives of the United Kingdom; Pakistan; Cuba; Republic of Korea; Singapore; Turkey; China; Switzerland; Norway; Brazil; Mozambique; India; and the European Union took the floor.
124. The Chair thanked the delegations for their interventions. Noting that the consideration of the present item was closely linked to the previous one, he suggested to also suspend the conclusion of this agenda item, so that it could be taken up together with the waiver discussion, when the Council resumed these items.
125. The Council took note of the statements made and agreed to keep the agenda item open.
126. At the reconvened meeting of 18 November, the report to the General Council was adopted and the Chair said that, it was therefore understood that the agenda items 13 and 14 on the Council's agenda continued to remain open in order to permit more time for bilateral engagement, with a view to resuming – at short notice if necessary – the meeting, when there were indications that Members might be ready to reach an agreement. [see paragraphs 93-99]
127. At the reconvened meeting of 29 November, the Chair proposed to take agenda items 13 and 14 together, as delegations had been making a single statement. [see paragraphs 100-107]
128. At the reconvened meeting of 16 December, the Chair proposed to take agenda items 13 and 14 together, as delegations had been making a single statement. [see paragraphs 108-119]
IP/C/M/103, IP/C/M/103/Add.1