110. The representative of Hungary, also speaking on behalf of Bulgaria, the Czech Republic, Romania, the Slovak Republic and Slovenia, thanked the Secretariat for its informative background document (document IP/C/W/124) and especially the delegation of Canada for its valuable written contribution (document IP/C/W/127). He welcomed that, in accordance with Article 64.3 of the TRIPS Agreement, the Council had started the examination of the scope and modalities of non-violation disputes in the TRIPS context. He believed that the issue at hand was a very complex one and deserved substantive and in-depth analysis and discussion. He thought that the work was at its preliminary stages and, since the Council was exploring uncharted waters, he believed that it should start by trying to understand fully the concept of non-violation in the TRIPS context, and its applicability to intellectual property issues. The delegations on whose behalf he spoke were still examining the issue and the documents circulated with respect to it but, as a preliminary view, they were not convinced of the need for, and the applicability of, the non-violation remedy under the TRIPS Agreement. These delegations shared the view expressed in paragraph 41 of the Appellate Body Report on India – Patent Protection for Pharmaceutical and Agricultural Chemical Products (document WT/DS50/AB/R) that "non-violation complaints are rooted in the GATT's origins as an agreement intended to protect the reciprocal tariff concessions negotiated among the contracting parties under Article II". Therefore, "the non-violation provision of Article XXIII:1(b) was aimed at preventing contracting parties from using non-tariff barriers or other policy measures to negate the benefits of negotiated tariff concessions". It was difficult to see the analogy between tariff concessions or specific concessions under the GATS, on the one hand, and the minimum rights of nationals to be provided for by a WTO Member on the basis of the TRIPS Agreement, on the other hand. The delegations on whose behalf he spoke collectively thought that the scope of the non-violation remedy in the TRIPS context was very unclear and uncertain (especially bearing in mind the different views as to the content of benefits/reasonable expectations). They also feared that the introduction of non-violation remedies in the TRIPS context, as elaborated eloquently in the Canadian paper, might take away government regulatory options with respect to the protection of life, health and the environment. While understanding that Article 26 of the DSU set out special procedures for non-violation complaints, these special safeguards did not convince them of the need for, or applicability of, the non-violation remedy in the TRIPS context. The CEFTA countries were beginning this exercise with an open mind and looked forward to the arguments and comments that would be made by other delegations.
