The EU’s vaccine export restriction scheme: a “pistol” on the table

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Yesterday, at their Summit-by-webinar, despite differences, EU leaders endorsed the sharpening up of the EU’s vaccine export restriction mechanism, with some caveats.

A group including the Netherlands, Sweden and Ireland linked their approval to a requirement for the European Commission to refrain from blocking shipments without consulting national authorities and vaccine manufacturers.

Also Belgium belonged to this camp. Belgian PM Alexander De Croo explained that it now won’t be possible for the European Commission to apply the mechanism to pharma companies that are delivering their doses as promised, specifically referring to Pfizer, which is producing its BioNTech vaccine in its Belgian plant.

He said:

“Pfizer has proven itself to be a very reliable vaccine producer, and effectively serves as the backbone to our country’s vaccination campaign. Guarantees have indeed been provided that mechanisms such as export controls can only be applied to companies that do not respect the rules. This was a very important element for us at the EU Council and we’re happy that this has been inserted into the [Council] conclusions”.

Belgian newspaper De Standaard notes that “the Commission and Member States primarily consider the mechanism to be a ‘pistol’ on the table, during negotiations with the UK and AstraZeneca.” A diplomat is quoted saying: “Now we have leverage to negotiate with the UK”.

In other words, this whole thing seems to have ended up with a mechanism which EU leaders consider unwise to use, given the risks of retaliation. That’s what we can derive from Angela Merkel’s comments on Tuesday, when she stated that “there are a huge range of international interdependencies when it comes to vaccine production”, coming out against “general export bans”, but clearly not against “specific” ones.

EU leaders seem to realise that the UK, the U.S. and Canada may not be exporting vaccines to the EU, but they are exporting key materials to produce vaccines and any tit-for-that vaccine protectionism would therefore quickly make vaccine production in Europe come to a standstill.

During the Summit, data were also released on how many vaccines have been exported from the EU. One of the things which became clear from these figures is that the insinuation is false that AstraZeneca would be hiving off millions of vaccines that were originally meant for the EU for export to the UK. In effect, no AstraZeneca vaccines were exported from the EU to the UK since the end of January. That’s quite something, given how this was the underlying idea behind restricting vaccine exports.

Another misunderstanding here was that the UK would be restricting vaccine exports. That simply isn’t the case. According to the UK government, it has a priority delivery deal with AstraZeneca, “for delivery of the first 100 million doses”, which is different from actions by the UK government that would make the application of contracts impossible.

The “pistol” EU governments now have to try to convince the UK to give up some of its AstraZeneca vaccines – the same vaccines for which EU governments have been clumsily undermining trust – may serve them well now, as legally, their claim towards the British-Swedish multinational appears shaky.

Under the EU- AstraZeneca contract, Belgian courts are competent. Eminent Belgian lawyer and law professor Matthias Storme has explained that there is no guarantee a Belgian court would force AstraZeneca to deliver vaccines proportionally between EU and UK, in case of shortages. In any case, despite threats, no legal action from the EU side has been undertaken so far, perhaps suggesting how weak the EU’s case is.

One victim of the EU’s “pistol” appears in any case Covid-struck Papua New Guinea. According to the Australian government, the AstraZeneca vaccines for which it paid, and which were blocked by Italy under the EU’s vaccine export restriction scheme, were actually meant to go to PNG. Until now, the EU hasn’t even replied to Australia’s request to release them.

Far from ending up in securing vaccines, the EU’s export restriction scheme may end up in damaged global goodwill, as the changes to the scheme also mean that a series of countries are no longer automatically exempted from export restrictions. These not only include the likes of Israel, Switzerland, Albania or Armenia, but also Norway, Iceland and Liechtenstein, which are members of the EU’s single market. Even if there is little chance that the EU would actually restrict vaccine exports to these countries, the mere fact of making a distinction between EU member states and non-EU member states when it comes to the free movement of goods within the single market may already amount to Treaty violation.

At best, the scheme won’t really be applied and will serve as a reminder of the protectionist instincts lingering in the corridors of the European Commission and some member state capitals.

Therefore, a most welcome intervention came from former European Commission President Jean-Claude Juncker, who stated that the EU had been overly cautious and budget conscious with its vaccine procurement and should step back from waging a “stupid vaccine war” with the UK.

He explained he was “not a fan” of the EU commission’s export authorization mechanism, saying:

“This could create major reputation damage to the European Union, who used to be the world’s free trade champion. (…) Nobody in Britain, nobody in Europe understands why we are witnessing, according to the news, a stupid vaccine war. (…) We are not in war, and we are not enemies. We are allies.”

Quite different from talk of “pistols”.