Bogdandy, Armin von

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The EU’s and UK’s Self-DefeatingVaccine NationalismArmin von Bogdandy 2021-01-30T11:52:09The European Union and the United Kingdom currently risk being victims of theirown vaccine nationalism. The time pressure for securing as many vaccine dosesagainst COVID-19 as possible has led to hiccups and even tensions between both.At the heart of the matter is AstraZeneca’s delay in distributing a given number ofdoses in the European Union. Meanwhile, it continues to serve the United Kingdomin a timely fashion. In a speech of 26 January 2021, European Commission President von derLeyen announced the possibility of implementing a “vaccine export transparencymechanism”. Though the details are not yet particularly clear, the aim of thismechanism would be to undertake a stricter monitoring of how many vaccine exportsare being made from the European Union. The threat of imposing export restrictions,including to the United Kingdom, is now on the table.The scenario above sheds light on the consequences of the “me-first” logicunderlying vaccine nationalism. As we have argued elsewhere, avoiding this was anobjective of the global alternative for COVID-19 vaccines procurement, the COVAXInitiative, developed mainly by the World Health Organization (WHO), the public-private-partnership Gavi (the Vaccines Alliance) and the Norwegian NGO Coalitionfor Epidemic Preparedness and Innovation (CEPI). We argue that by opting for thebilateral instead of the global and multilateral approach, the European Union and theUnited Kingdom now witness a face-off of their own creation, while endangering theeffective distribution of a life-saving medicine.A Bilateral vs a Multilateral Approach to VaccineProcurementAt the core of the United Kingdom’s and the European Union’s vaccine procurementstrategy are Advance Purchase Agreements (APAs), addressed at length here.These consist of bilateral contracts struck between a pharmaceutical developer,on one hand, and a potential buyer – whether public institutions or also privateactors – on the other hand with a commitment for an unfinished product. Thebuyer undertakes to purchase a certain amount of doses at a negotiated price, aswell as providing financial guarantees beforehand in case they do not. In return,pharmaceutical companies commit to provide that amount of the projected vaccineonce authorized for use by a regulatory agency – in the case of the European Union,the European Medicines Agency. Due to uncertainties related to the vaccines’research development process, these commitments entail a degree of risk. However,- 1 -the vaccine developed and produced by AstraZeneca jointly with Oxford Universityhas already received regulatory authorization by the EMA.Although the question of “how much” doses have been purchased is not disputed,the one of “when” exactly a pharmaceutical company has to deliver the vaccine iscurrently in the eye of the storm. The European Union and AstraZeneca have hada public fall-out over the respective duties in their bilateral APA. On 25 January2021, after a series of discussions with the pharmaceutical company, the Presidentof the European Commission, Ursula von der Leyen, expressed her dismay at thecompany’s announced delays in the delivery of the amount of doses promised backin 2020.This is exactly the situation that securing the vaccine through COVAX would haveavoided. Indeed, while now the general impression is that COVAX has been set upfor low-income countries (“financed states”), it was actually designed to allow everystate to secure doses through it, i.e. a truly multilateral and global approach. Higherincome states can join as “self-financing participants”. For that purpose, they sign astandard legal agreement with Gavi, the Vaccines Alliance, the legal administratorof COVAX. In turn, Gavi signs contracts with pharmaceutical companies, similar towhat the European Commission does. In the first phase of distribution, all countriesparticipating in COVAX receive doses for up to 20% of their population, with theoption for self-financing parties to secure more afterwards.Since Gavi signs only a single agreement with each pharmaceutical company, thisprevents states from outbuying each other to get better deals, i.e. faster deliveries. Italso guarantees a standard price for everyone – a matter which last December led tocontroversy, since some states, such as the United States, paid more than others forthe same product through their bilateral APAs.Furthermore, COVAX offers more transparency than bilateral APAs. Through theiragreements with Gavi, self-financing states can know the terms and conditionsof every other vaccine-receiving state at the outset, since the model agreementsare publicly available. Conversely, bilateral APAs between states or the EU andpharmaceutical companies often include non-disclosure clauses, as reported indetail here. Matters such as potential liability for failing to fulfill contractual obligationsare often beyond the public eye. There are exceptions, such as the APA betweenthe European Commission and the German pharmaceutical company CureVac.However, as bilateral APAs proliferate, states and supranational institutions signingthem usually have no way of knowing whether other states have obtained different,possibly better terms and conditions. The lack of transparency of numerous APAs is currently being put into question.President von der Leyen claims that the agreements the European Commissionhad signed with the company were meant to legally ensure delivery of a determinedvolume after regulatory authorization. Conversely, the Chief Executive Officer ofAstraZeneca, Pascal Soriot, claimed that the commitment was not to deliver at acertain point, but rather a statement of “best efforts”. The European Commission haspublished the APA in question. In section 5.1, it states that AstraZeneca “shall use itsBest Reasonable Efforts… to deliver to the Distribution Hubs, following EU marketing- 2 -authorization”, as established in an estimated delivery schedule attached to theagreement. Whether that provision covers the current delay is an intricate questionof fact and Belgian contract law which governs the APA between AstraZenecaand the European Union. As regards the question whether AstraZeneca agreed todifferent clauses with other countries, this information is not currently in the publicdomain.The delays in delivery might amount to a breach of contract if the company is givingpreference to other countries, while failing to deliver the expected amount of vaccinedoses secured by the European Commission. Conversely, even though the clausesof contracts in COVAX between Gavi and pharmaceutical companies are not fullytransparent either, at the very least suspicions of preferential treatment to certainstates would have been dispelled thanks to the template agreements.The Self-Defeating Nature of Vaccine NationalismBy resorting to bilateral APAs for securing their vaccine doses and not through theglobal alternative, delivery of the COVID-19 vaccines is now fueling a bitter standoffbetween the United Kingdom and the European Union. Resorting to a multilateraland global vaccine procurement strategy through COVAX would have avoided thebitter question of “who is getting it first and on which terms”. It would have preventedemerging political standoffs that may lead to damaging consequences if strongermeasures, such as export restrictions, are adopted. It shows how the lack of globalsolidarity amidst such a decisive moment in curbing the pandemic is a self-defeatingendeavor.The rampant vaccine nationalism, where states are currently out-buying and leavingeach other behind, is shaping up to be a crisis in itself. Not only is it leaving lower-income countries behind in the pipeline, but is also pitting higher-income countriesagainst each other. In times of a catastrophic pandemic, the lack of global solidarityis not just a matter of moral imperatives – it also happens to be the best means toavoid a self-defeating competition for the vaccine.- 3 -

The EU’s and UK’s Self-Defeating Vaccine Nationalism

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The EU’s and UK’s Self-Defeating Vaccine Nationalism

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