For some months now, increasingly disturbing statements on the law or legal threats have emanated from the EU. Some of these focus on AstraZeneca and if you were a drug company who had committed so early on and so successfully to helping develop and distribute a vaccine for the current pandemic (at cost price), you might reasonably feel hard done by. But that is not for me.
What is for me is the latest, oddest statement, that the EU may seize AstraZeneca’s manufacturing plants and their produce and possibly their intellectual property rights (the recipe). Can they? The EU has form for making statements on the law which are wrong.
A summary of the issue is this: the UK and other countries moved very quickly to order batches of vaccines from lots of manufacturers. By analogy, these countries got to the restaurant early and ordered their meal early. The EU came late.
The early countries went further, they promised to not only buy the vaccine but also to pay for its development. They not only ordered the food, but they helped pay for the kitchen. These private companies then promised to give people their vaccines in an orderly queue. It’s not as simple as ‘late orderers get nothing’, but they get less.
That is fine and ordinary and perfectly legal. But the EU has never been happy with the fact it put its orders in late — although it saved money by doing so and acting late was its choice. Can the EU now use its own laws to simply seize vaccine belonging to other countries?
Well, the EU will tell you that it can and that may be half the problem. When a country enters the EU it pools some of its sovereignty with the other members — everyone agrees to give some sovereignty to the EU itself.
When the EU moved to the Lisbon Treaty in 2009, it started to define just how much sovereignty everyone gave up — it marks its own homework. The UK was a restraint on that process but has now left. The EU will say Article 122 of the Lisbon treaty says it may now take vaccines that do not belong to it. This is what that article says:
Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.
Article 122 was originally a way around restrictions on financial support. If I had told you in 2007 that it was a power to requisition, you would not have believed me. Nor would I.
Requisitioning private property is something usually reserved for wars or genuine emergencies and is a power usually held by sovereign countries — which the EU is not. It is a leap to see Article 122 as giving the EU powers like these and it is inconsistent with the idea member states are sovereign for the EU to be able to do this.
The failure of the EU to order vaccines early — which could have led to there being more vaccines for everyone if they had built another factory — is at best a self-inflicted problem. Can you profit from a problem you created?
It is worth remembering the issues over how the EU wide Covid bailout was handled. Article 125 is known as the ‘no-bailout clause’. Even by the EU. It was agreed between the then 28 members to stop the EU from ever doing a bailout. The EU got around that by having their own lawyers declare the bailout was not a bailout (see pages 63 to 65).
And as we saw in the case where Germany took the historic decision to break international law and break the EU treaty, the EU has a court which not everyone has faith in.
If the EU can requisition private property, it is still customary to compensate the people you take property from. That compensation is not limited to the private company whose assets you take — it would include the other countries whose citizens you harm.
So what the EU is proposing may very well be deemed legal, not least because it is the EU who will deem it so. But ultimately the EU is acting politically. It is not a legal construct compelled by laws to act in way — it is a political actor, a new state. The illusion that the EU makes political choices because it is compelled to do so by laws they themselves interpret rather than by choice, is what must now fall away.
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