BRUSSELS – It’s crunch time for the European Commission in its legal battle with drugmaker AstraZeneca.
At loggerheads for months with the Anglo-Swedish pharmaceutical company it accuses of failing to deliver the promised number of COVID-19 vaccine doses, the European Union’s executive branch will try to persuade a Brussels court Wednesday that the case is urgent enough to justify ordering the company to make an immediate delivery of the missing shots.
AstraZeneca’s contract signed with the Commission on behalf of EU member states foresaw an initial 300 million doses for distribution among all 27 countries, with an option for a further 100 million. The doses were expected to be delivered throughout 2021. But only 30 million were sent during the first quarter.
Deliveries have increased slightly since then but, according to the Commission, the company is set to provide only 70 million doses in the second quarter. It had promised 180 million.
While the EU insists AstraZeneca has breached its contractual obligations, the company says it has fully complied with the agreement, arguing that vaccines are difficult to manufacture and it made its best effort to deliver on time.
“We want the court to order the company to deliver 90 million additional doses, in addition to the 30 million already delivered in the first quarter,” European Commission spokesman Stefan De Keersmaecker said.
As part of an advanced purchase agreement with vaccine companies, the EU said it invested 2.7 billion euros ($3.8 billion), including 336 million ($408 million) to finance the production of AstraZeneca’s serum at four factories.
During a procedural hearing last month, EU lawyer Rafael Jafferali told the court the company should use all four plants listed in their contract for deliveries to the EU.
“The contract listed a series of plants that had to be used by AstraZeneca and that still today, in breach of the contract, AstraZeneca is not using,” he said.
The longstanding dispute drew media attention for weeks earlier this year amid a deadly surge of coronavirus infections in Europe, when delays in vaccine production and deliveries hampered the EU's vaccination campaign.
Cheaper and easier to use than rival shots from Pfizer-BioNTech, the AstraZeneca vaccine developed with Oxford University was a pillar of the European Union’s vaccine rollout. But the EU’s partnership with the firm quickly deteriorated amid accusations it favored its relationship with the British authorities.
While the U.K. made quick progress in its vaccination campaign thanks to the AstraZeneca shots, the EU faced embarrassing complaints and criticism for its slow start.
Concerns over the pace of the rollout across the EU grew after AstraZeneca said it could not supply EU members with as many doses as originally anticipated because of production capacity limits.
In an interview with the Financial Times newspaper last weekend, AstraZeneca chief executive Pascal Soriot said the U.K. government had been guaranteed priority for deliveries from the U.K. vaccine supply chain as part of the deal it sealed with Oxford university in return for investment. That was before AstraZeneca joined as a development partner to produce and distribute the serum.
“Of course when you do something like this as a government, you don’t do it for free,” he said. “What you want in return, and it’s fair enough, is priority.”
The health situation has dramatically improved in Europe in recent weeks, with the number of COVID-19 hospitalizations and deaths on a sharp downward trend as vaccination has picked up. About 260 million doses of vaccine have been delivered in Europe — a region with around 450 million inhabitants — and the bloc's chief executive Ursula von der Leyen is now branding the EU's COVID-19 vaccination drive a success.
In total, the Commission has secured more than 2.5 billion of vaccine doses with various manufacturers. It recently sealed another massive order with Pfizer and BioNTech through 2023 for an additional 1.8 billion doses of their COVID-19 shot to share between the bloc’s countries.
Now that doses are free flowing in Europe, the Commission might struggle to prove the urgency of the case.
“There is a clear emergency," De Kersemaecker told the AP. “We need to reach our target to have 70% of the adult population vaccinated this summer. And to reach that goal we need all the vaccines in our portfolio, so it's an urgent matter."
Although the European Commission insists the AstraZeneca serum remains part of its vaccine strategy, the EU has clearly distanced itself from the drugmaker in recent weeks to prefer Pfizer. Strikingly, the Commission did not exercise the option to buy an additional 100 million doses on the basis of the current agreement it sealed with the company.
Following Wednesday's hearing, a second audience is slated for Friday, with a judgment to be delivered at a date to be announced, Jafferali said. In addition to the emergency action, the Commission has launched a claim on the merits of the case for damages for which a hearing has not yet been set by the court.
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