Compte rendu ‒ Conseil des ADPIC ‒ Afficher les détails de l'intervention/la déclaration

Ambassador Mero (United Republic of Tanzania)
Afrique du Sud
6 Non-violation and Situation Complaints
157. South Africa would like to align itself with the statements of India and other like minded Members. South Africa, as a Member of the WTO, is fully committed to upholding its obligations and commitments as set out in the different WTO laws and regulations with specific reference to the TRIPS Agreement. The purpose and aim of Article XXIII is to ensure compliance with the GATT rules and principles by providing the Members with an opportunity to make representations should the situation provided for in subparagraphs 1(a) and 1(b) arise. This is different to the TRIPS Agreement. The TRIPS Agreement is a sui generis agreement. It is not aimed at promoting market access or harmonizing the standards of Members with regard to the protection and enforcement of intellectual property rights. It is there to provide for the minimum standards for the protection and enforcement of intellectual property rights. 158. The insertion of Article XXIII.1(a) and 1(b) of GATT 1994 under the TRIPS Agreement will undermine the sovereign rights of the respective Members insofar as putting in place the laws that will protect IPRs within their borders are concerned. The insertion will furthermore restrict the flexibilities provided to Members and defeat the balance that has been maintained under the TRIPS Agreement. 159. South Africa recognizes the need for the protection of intellectual property rights. However, we believe that the insertion of non violation and situation complaints will not be practical under the TRIPS Agreement.
The Council took note of the Chairman's summary of the discussion held in informal mode and the statements made and so agreed.
6.1. The Chairman recalled that Ministers at MC10 had renewed their instruction to the TRIPS Council "to continue its examination of the scope and modalities" for non-violation and situation complaints and to make recommendations to MC11. This was also in line with the original mandate in Article 64.3 of the TRIPS Agreement. As on past occasions and for the seventh time in a row, Ministers had also agreed to prolong the moratorium on such complaints under the TRIPS Agreement.

6.2. He assumed that delegations would agree with him that since the Council had begun discussing the application of such complaints to the TRIPS Agreement in the late 1990s the situation had been effectively blocked. Recent discussions had essentially served to repeat positions that argued either for or against the application of non-violation and situation complaints to the TRIPS Agreement, while not addressing the question of scope and modalities for which Ministers had repeatedly requested the Council to prepare recommendations and which was in line with the requirements of the TRIPS Agreement itself in Article 64.3.

6.3. A number of delegations had, however, more recently signalled their readiness to engage in constructive discussions. There also seemed to be an emerging view shared by many delegations that the application of non-violation and situation complaints should not and did not undermine existing TRIPS flexibilities.

6.4. Following up on the request that had been made to him by the Council in March, he had consulted with key delegations on this matter, including at an informal meeting that had been held the previous week at which he had explored an idea for a possible way forward as a first step towards a more focused discussion.

6.5. Solely in pursuance of the Ministerial instruction and the mandate in Article 64.3 of the TRIPS Agreement, he had suggested that some elements describing possible scope and modalities be put together that could in principle frame the application of non-violation and situation complaints in the area of TRIPS, but expressly without prejudice to the position of any Member. Such an exercise could be informed by past discussions in the TRIPS Council. It could also draw on other WTO agreements and related jurisprudence, as well as on existing bilateral and regional trade agreements. These elements could be informally shared with delegations in the form of a non paper in order to inform Members' discussion at the Council's meeting in November.

6.6. At the informal meeting that had been held on 2 June, delegations had engaged in a useful exchange of views on his suggestion, and, more broadly, on how the Council could best ensure a meaningful debate that would ultimately fulfil the Ministers' instructions to examine the matter in the coming 18 months, and prepare recommendations to the next Ministerial Conference.

6.7. On the positive side, most, if not all, delegations had confirmed their willingness to engage in constructive discussions. Positions had remained, however, divided as to whether non-violation and situation complaints should apply to TRIPS and whether there was a need to establish scope and modalities at all. One delegation had objected to the idea that elements for scope and modalities be put together by him or by the Secretariat, considering that such proposals should be made by Members, as this was a Member-driven process. Another delegation had proposed an update of the Secretariat summary note of the points raised in substantive discussions so far that had last been updated in 2012 (IP/C/W/349/Rev.2).

6.8. He recalled once more that the initial deadline for accomplishing this task was 1999 and that there were still no concrete proposals on the table as to how the Council might prepare the recommendations. Just keeping the item on the agenda had not yielded any solution over the past 17 years. This should be of particular concern to delegations. He therefore encouraged delegations to come forward with concrete suggestions or ideas on how the Council could best engage in intensified work on the examination of the scope and modalities for non-violation complaints with a view to finding a way out of the current cycle of extending the non-violation moratorium from one Ministerial Conference to the next.

6.9. As suggested by the Chairman, the Council continued its session in informal mode. When the Council resumed its formal session, he provided a brief summary of the main points raised during the discussion in informal mode. He reported that delegations had engaged in an informative exchange of views about the application of non-violation and situation complaints to the TRIPS Agreement, as well as the scope and modalities related to such complaints. While delegations were recognizing the mandate given to the TRIPS Council by Ministers, i.e. that it had been instructed once again to continue the examination of scope and modalities that should apply to non-violation and situation complaints and to make recommendations to the next Ministerial Conference, there had been no progress regarding the question whether such complaints should apply to TRIPS, whether there was even a need to establish scope and modalities and the elements that would form part of scope and modalities.

6.10. An important point of divergence related to the question whose task it should be to propose possible elements for scope and modalities. One view that had been expressed in the informal discussion was that these would not be needed for non-violation and situation complaints to apply, as the WTO agreements and jurisprudence provided sufficient guidance. According to another view, the discussion on scope and modalities was obsolete if such complaints were declared inapplicable to TRIPS.

6.11. His initial proposal to put together elements for scope and modalities in the form of a non paper that could serve as the basis for future discussions among Members had aimed at overcoming this blockage. However, it had not been supported by all Members in the informal discussion, as some delegations had considered that the process should remain entirely Member driven.

6.12. The representatives of the United States, Peru, Japan, the Plurinational State of Bolivia, Switzerland, Brazil, China, India, Canada, Ecuador, Indonesia, South Africa, Bangladesh, Cuba, Argentina, Russian Federation, Chinese Taipei, the Republic of Korea, Egypt, Colombia, Nigeria, on behalf of the African Group, the European Union and India took the floor.

6.13. The Chairman suggested that the Council request him to continue his consultations with delegations prior to the next meeting.

6.14. The Council took note of the Chairman's summary of the discussion held in informal mode and the statements made and so agreed.

IP/C/M/82, IP/C/M/82/Add.1