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Following heated debate on the content of the EU’s contract with AstraZeneca (AZ), the company agreed to the publication of a redacted version of the advance purchase agreement (APA) it reached with the EU. The contract appears to confirm the EU’s position.
Earlier in the day, European Commission President Ursula von der Leyen, reportedly said on German radio that the commitments in the contract were binding and crystal clear, and that all production facilities, including those in the UK, are mentioned in the contract.
The publication followed a renewed request from the European Commission (27 January) for AstraZeneca to publish the contract signed between the two parties on 27 August 2020. A European official informed journalists that the vast majority of redactions had been at the companies request, with only two small redactions concerning ongoing negotiations requested by the EU-side. While the Commission would have preferred a more complete document, including the schedule of dose delivery to be included, it decided that it was preferable to publish what it could as quickly as possible.
‘Best efforts’
The contract repeatedly refers to ‘best reasonable efforts’, in his interview with La Repubblica (26 January), the AstraZeneca CEO Pascal Soriot claimed that his company had “no obligations, just best efforts” to meet the delivery schedules of vaccines to the EU. He said that AstraZeneca would: “try our best, but we can’t guarantee we’re going to succeed.”
A senior European official directed journalists to an article in The Guardian. In the article David Greene, the president of the (English and Welsh) Law Society speculated: “If they [AZ] gave assurances that they made reasonable best efforts to supply the EU but were in fact diverting material from one place to another, that would on the face of it be a potential breach of obligations to use reasonable best efforts.” In the same article legal commentator, David Allen Green familiar with government public procurement is quoted: “The existence of that ‘best efforts’ provision may not be that helpful to AstraZeneca, if the correct construction of the contract is that it does not cover diverted capacity as opposed to lack of capacity.”
The Commission made an analogy with intent (mens rea) in criminal law saying that it would be for a judge to decide, for example, if AZ in comparison with another similar company, had made ‘best reasonable efforts’, or if it was acceptable that the EU had only received vaccine doses from one plant.
Britain first?
In his interview, Soriot said that since the UK signed first it would be supplied first, describing it as “fair enough”. However, in the contract, AstraZeneca made an explicit commitment that they are under no obligations that are in conflict with the obligations it has to the EU:
Article 13(1)e AstraZeneca, Advanced Purchasing Agreement with EU
Soriot also claimed that the UK manufacturing plants were specifically dedicated to the UK’s contract and supply, with the possibility of the EU benefitting from UK production later on. However, the contract is explicit that the UK plants are included in the agreement.
Article 5.4, AstraZeneca, Advanced Purchasing Agreement with EU
The same official directed journalists to Schedule A, which while redacted indicates the plants involved.
Schedule A, AstraZeneca, Advanced Purchasing Agreement with EU
The Commission hopes to be able to publish all contracts under the Advance Purchase Agreements in the near future.
Later today (29 January) the Commission will publish an implementing regulation allowing greater transparency and clarity on the movement of vaccines, with the possibility of export restrictions.
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