In the wake of the recent visit to India by German Chancellor Angela Merkel, whose agenda included bilateral discussions on the reinstatement of negotiations for the controversial EU-India free trade agreement (FTA), NGOs working in the health sector have called for a cautious approach from Indian negotiators and government.

“We urge the Indian government to carefully consider before they resume FTA negotiations with the European Commission (EC), whether this is the direction they want to take on pharmaceuticals, as negotiations on IP will inevitably be aimed at undermining access to affordable generic medicines," said Leena Menghaney of Médecins Sans Frontières (MSF).

“Before rushing into negotiations with the EC, India should take into consideration the outcome of Trans-Pacific Partnership (TPP) agreement negotiations that concluded this week. The big losers in the TPP are patients and treatment providers in developing countries who will face increased levels of IP barriers in procuring affordable generics, largely produced by India. The negative impact of the TPP on public health will be enormous, be felt for years to come and it will not be limited to the current 12 TPP countries, as it is a dangerous blueprint for future agreements,” she added.

The EU-India FTA has been in negotiations since 2007. From the outset, the EC has pushed to include provisions that would undermine India’s ability to produce affordable medicines on which millions of people in developing countries rely.

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 deal. However IP enforcement and investment provisions, proposed by the EC in the draft negotiating text, were still under consideration by the negotiating teams before they were halted due to elections in the EU and India.

Enforcement provisions could potentially block the production and export of generic medicines from India – a lifeline for millions of people across the developing world. In addition, these provisions would also open the door to abusive practices in India from multinational corporations, by allowing the supply of medicines to be stopped, delayed, seized, detained and destroyed.

The EU only a few formal steps away from adopting and enacting new European Trademark rules. The new rules will allow EU customs officials to seize goods in transit suspected of counterfeit (willful) trademark infringement, unless a holder of legitimate goods (such as low-cost generic medicines) – can prove that there is no infringement of the relevant trademark in the country of destination.

MSF and other organisations have repeatedly called for the removal of any border measures that allow trademark enforcement on goods in transit, given previous seizures of generic medicines within the EU that were intended to provide life-saving treatment in developing countries.

"By introducing a new right to stop and seize goods in transit through the EU on just the suspicion of counterfeit (willful) trademark infringement, the EU is about to take another unacceptable step beyond internationally-agreed trade rules to the detriment of affordable access to medicines in low- and middle-income countries.

"These new rules will increase the risk of abuse by intellectual property rights holders, which could result in harmful delays, seizures or even the destruction of legitimate generic medicines in transit through Europe on their way to people in developing countries. Any wrongful seizure and detention of generic medicines in transit can lead to harmful, and even fatal, delays for people who need access to life-saving medicines," said Helle Aagaard, EU policy advisor, MSF.