August 03
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Anjum Shabbir
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4th May 2020
Covid-19

Insight: “Coronavirus Global Response Pledging Conference” by Anjum Shabbir

An online and international event, the ‘Coronavirus Global Response Pledging Conference’ has just started, at 3pm, hosted by the European Union, the World Health Organisation, and the Bill and Melinda Gates Foundation.

It aims to raise 7.5 billion, or 8 billion euros, through pledges made by the partner countries hosting the events and partners around the world, for the development of vaccines, medicines and diagnostics in order to tackle the crisis, a method universally agreed upon and desired to eliminate the virus rather than merely limit its spread (current containment measures posing a serious challenge to the financial health of the EU and the world). It is suggested that the division of those funds would be an earmarking of 4 billion euros to be spent on vaccines, 2 billion euros on treatments and 1.5 billion euros on testing, channelled primarily through recognised global health organisations such as CEPI, Gavi, the Vaccines Alliance, as well as the Global Fund and Unitaid. It is also described as necessary to make up the global funding shortfall estimated by the Global Preparedness Monitoring Board (GPMB) and others according to a joint Op-Ed co-authored by the Italian, French, German, Norwegian, and Canadian leaders, and the Presidents of the European Council and Commission.

This is not an event specifically mandated or forbidden under EU law, nor an action taken at the European level only, but it reflects two trends that have emerged of the EU’s role in this crisis: (i) that of ‘coordinator’ of Member States’ measures (for example coordinated provision of assistance to the Dutch Caribbean islands under the Civil Protection Mechanism, but also beyond in the fields of State aid, restrictions on free movement, data protection, an ‘exit strategy’ and more); and (ii) that of its own message to tackle the crisis globally as a facet of its external relations approach: it has already voiced international support measures, such as providing assistance beyond the EU to the rest of the world, has joined in a call for world debt moratoriums, and also called for the global need to put down arms as a result of this health crisis. The identified impact on global trade can not be denied either.

And it roughly sits in with the EU’s legal obligations to provide global assistance in natural or man-made disasters (Article 214 TFEU), as well as other similar measures which do have an EU legal basis, such as the amendment of the EU Solidarity Fund (Articles 175 and 212 TFEU) in order to be able to help non-Member State countries, such as those seeking to accede to the EU.

But this is not like the EU’s releasing of funds through legislative means. This initiative does not come with a new governance structure, but rather three loosely held together partnerships, including international organisations – and current G20 leader Saudi Arabia, which has caused eyebrows to be raised.

Many questions arise as a result. The first may be why this response is framed as a fundraiser, rather than an international agreement between the participating countries, which would give the whole effort greater weight and credibility. That would also address other questions, such as what the rules are for the spending of the funds raised, and the related oversight of spending. Indeed, the Court of Auditors has raised concerns about accountability and use of funds concerning the relaxing of rules to open up European Structural and Investment funds even where this a legislative framework for the funds, and this up-to-8 billion fund raised with the cooperation of international actors is not any different concerning the need for oversight.

There is no mention of the rules that would govern the fair pricing and affordability of any vaccine or drug that is funded and discovered as a result of this pledge, nor on how to fairly distribute vaccines, drugs or tests to those most in need (such as frontline healthcare workers), and whether the proposed global nature of the funding requires the foregoing of intellectual property rights by companies developing such therapeutic solutions.

Moving those legal issues to one side, this online pledging conference aims to prevent an arguably greater ‘legal evil’ churning up other issues as well as potentially jeopardising the actual eradication of the pandemic if vaccines, medicines and diagnostics are developed under the domination of one country. Again, who would have priority for vaccination and treatment? How does a country’s national constitutional requirements to protect its own citizens first affect a globalised  approach? Could that alternative scenario mean potential hostile company takeovers for any of the current 70 vaccine candidates? Could it impede healthcare workers across the globe from being the first to obtain access? Could it price out or exclude weaker, less wealthy countries? Could that cause a resurgence of COVID-19 which clearly knows no borders? Currently, no legal rules exist to deal with those situations.

As an aside, the EU has approached a similar perceived threat of one-nation-dominance in developing a vaccine: in March the European Commission responded to that situation potentially arising by plugging in its own funds for research in the field.

While digesting as food for thought the legal problems this pledging conference raises and addresses, the amount raised can be tracked in real time here.

 

Anjum Shabbir is an Assistant Editor at EU Law Live.

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